As I’ve written about before, the plaintiff’s bar is growing increasingly sophisticated in its strategic efforts to attack employers’ internal workplace investigations.  Unfortunately, too many employers have made themselves vulnerable to these attacks by failing to ensure that their internal workplace investigations are conducted by an impartial investigator or failing to ensure the investigation process is impartial.

The internal workplace investigation commissioned by the Miami Dolphins is an exception.  When confronted with allegations of harassment and bullying by player Jonathan Martin, the Miami Dolphins leadership promptly retained an outside attorney to conduct an independent internal workplace investigation.  According to the report issued by the investigation attorney, the Miami Dolphins also refrained from trying to influence the investigator and did not review or edit the investigation report.

Set forth below is the section of the report that describes the scope and independence of the investigation.  Congratulations to the Miami Dolphins leadership team for responding promptly, thoroughly and impartially to the allegations of harassment and bullying.   The full 144-page investigation report can be read by clicking here.  It is an excellent example of a well-done, prompt, thorough and impartial internal workplace investigation.

B. The Scope and Independence of the Investigation

On November 6, 2013, Commissioner Goodell announced that he had retained Theodore V. Wells, Jr. and this law firm, Paul, Weiss, Rifkind, Wharton & Garrison LLP, to conduct the independent investigation. The NFL’s press release states that our mandate was to “direct an independent investigation into issues of workplace conduct at the Miami Dolphins and prepare a report for the commissioner, which would be made public.”

Neither the NFL nor the Dolphins imposed any constraints on the investigation. Paul, Weiss received the full cooperation of the league, the Dolphins organization (including current and former players, coaches, front-office staff and other personnel) and the NFLPA. We had authority to request interviews of anyone deemed to have relevant information, including present and former NFL players, coaches, staff and personnel. We were given access to pertinent documents from the NFL and the Dolphins. Our investigation took place independently from any concurrent inquiries undertaken by the NFLPA, the Dolphins or individual players and their attorneys.

Quoted from page 52 of investigation report.

With Valentine’s Day only a week away, I thought I’d repost my discussion of “love contracts.”

A “love contract” or in lawyer terms – a Consensual Relationship Agreement —   is an effort to mitigate the risk of sexual harassment claims from an office romance gone awry by documenting that the relationship is consensual.

For the reasons I’ll discuss below, I’m not sure that having two employees sign this type of agreement really mitigates the risk of a sexual harassment claim from one of the employees involved in the relationship all that much, but so we’re all on the same page before I share my thoughts, here is an example of a Consensual Relationship Agreement:

Consensual Relationship Agreement

We, the undersigned employees, have voluntarily entered a social relationship.

We acknowledge that [Employer] is committed to providing a workplace that is free of harassment, discrimination, conflicts of interest, and favouritism, and that [Employer] will not tolerate unwelcome or offensive conduct, conduct that creates a hostile work environment, or sexual harassment. We have read and understand [Employer’s] anti-discrimination and anti-harassment policies.

We understand and agree as follows:

The social relationship is welcome and consensual by both employees.

Either employee may terminate the relationship at any time without suffering workplace retaliation of any form.

If applicable: Neither employee will seek or accept a direct supervisory or reporting relationship with the other.

If applicable: [Employee in supervisory position] will not participate in any discussions or decisions related to the terms of [subordinate employee’s] employment, including those related to assignments, evaluations, discipline or discharge, compensation, scheduling, promotion or demotion, and development.

The employees will not engage in conduct that could reasonably be regarded by co-workers as favouritism.

The employees will behave professionally toward each other at all times, even if the social relationship ends.

The employees will not engage in public displays of affection or other inappropriate conduct in the workplace or at work-related functions.

The social relationship does not violate [Employer’s] anti-discrimination and anti-harassment policies, and participation in the social relationship has not been made a condition or term of employment.

The employees will continue to comply with [Employer’s] antidiscrimination and anti-harassment policies.

The employees will inform [Employer] immediately if the social relationship ends or if the conduct of the other employee is no longer welcome.

If applicable: Any dispute arising from the social relationship or this agreement will be resolved through arbitration.

This agreement is confidential and intended not to invade employees’ privacy but to affirm that both employees have received and agree to comply with all relevant policies.

The employees may consult with an attorney before signing this agreement.

Signed [2 x consenting employees]

Insights for Employers

Over the course of my twenty-three year legal career, I have provided legal advice and counsel in well over two hundred claims of sexual harassment.  In none of those situations did the sexual harassment claim arise out of an office romance where the two employees involved had previously disclosed the romance to the employer.   To the contrary, the majority of the situations involving a relationship gone awry arose out of an extramarital workplace relationship, which for obvious reasons the employees wished to keep secret.

My experience would seem to be validated by CareerBuilder’s annual office romance survey.  According to the survey, dating a co-worker is a fairly common occurrence, with 39 percent of workers saying they have dated a co-worker at least once during their career. Of those reporting they had dated a co-worker, 35 percent said they kept their romance a secret.

Of course, my experience and the results of the survey begs the question:  If 35 percent of the employees who have an office romance are keeping it secret and the majority (or 100% in my experience) of sexual harassment claims arise out of those secret romances, is there a benefit to having employees sign a Consensual Relationship Agreement.  There may well be organizational benefits to having employees sign an agreement, but it is not a panacea of lawsuit prevention.  For example, having a practice of asking employees sign such an agreement may give employees and employers a more comfortable avenue for raising all of the issues surrounding appropriate workplace interactions, i.e. should you hold hands in the lunch room or kiss in the hallway.

Bottom line:  Employers would be better served in focusing their efforts on creating a culture of compliance and respect in the workplace vs. having employees engaged in an open office romance sign Consensual Relationship Agreements.  Unfortunately, human behavior dictates that there will always be employees engaged in secret office relationships.  Those employees are unlikely to self-report their secrets and change their behavior because the employer has a practice of having employees sign Consensual Relationship Agreements.  In fact, having such a practice might have the opposite result with those employees going further underground in their secret relationship – until, of course, it sours and one or both of the employees files a claim of harassment or hostile work environment.

Happy Valentines Day!

A federal jury in Connecticut returned a unanimous verdict awarding a total of $1,499,891.70 to a man terminated by IBM when he was 61 years old.  The jury also found that IBM “knew or showed reckless disregard for whether its termination of [the employee] constituted age discrimination.”   As such, the employee may also be entitled to liquidated damages, which is double back pay, and would add another $999,891.70 to the total award.

Unless this verdict is reversed on appeal, IBM will also be ordered to pay the employee’s attorney’s fees.  Given that the case has been pending since July 2009 and took eight days to try, those fees are likely to be substantial.

Plaintiff Scored Key Pre-Trial Ruling When Investigation Deemed One-Sided

According to the pleadings in the case, when the 61-year-old employee learned he was going to be terminated he complained to IBM management that he was being discriminated against because of his age.  An IBM human resources manager then conducted an investigation into that complaint and found that the employee was treated fairly and not discriminated against.

In the weeks leading up to the start of the jury trial, the employee’s attorney filed a motion to preclude the introduction of the internal HR investigation at trial arguing that the probative value of the internal investigation was far outweighed by its prejudicial effect and that its introduction to the jury will result in confusion and delay.  IBM opposed the motion arguing, in relevant part, that the investigation was clearly relevant to IBM’s motive, admissible as a business record, and that IBM needed the investigation to be able to defend itself against allegations that its actions were “willful.”

In a key legal boost to the employee’s case, the federal judge granted the motion to preclude.  The judge was particularly troubled by what he viewed as an investigation that “while purporting to make objective findings” failed to consider evidence that would have been favorable to the employee.   Indeed, the judge noted that he suspected that “the purpose of the investigation was more to exonerate IBM than to determine if [the employee] was treated fairly.”

Connecticut plaintiff’s attorney Nina Pirrotti was not surprised by the judge’s ruling and is not surprised by the jury verdict.   Indeed, she commented that even if the judge had declined to grant the motion to preclude, “the plaintiff’s employment lawyer could have made hay over IBM’s ‘non-investigation’ which was clearly orchestrated to justify IBM’s unlawful termination decision.”   In fact, she noted that “if a jury concludes that the employer conducted a true sham investigation, such a finding may be the tipping point in its decision to award punitive (or in this case liquidated) damages. “

Would Your Investigation Withstand Scrutiny?

As this case demonstrates, the promptness, thoroughness and impartiality of an employer’s internal workplace investigation can make an enormous difference in the outcome of a case.   The plaintiff’s bar is growing increasingly sophisticated in its strategic efforts to preclude employers from introducing into evidence these types of investigations.  They are also increasingly using employment practices experts to attack an employer’s investigation when they cannot preclude its introduction entirely.

For all of the risk managers, HR professionals and company counsel reading this, I urge you to consider using this jury verdict as a catalyst to review your existing investigation protocols.  A good tool to use in conducting this review is the Guiding Principals developed by the Association of Workplace Investigators (“AWI”).  AWI is a nonprofit whose mission is “to promote and support workplace investigations as a distinct area of expertise and to enhance the quality of workplace investigations.”  To download a free copy of the Guiding Principles click here.

2013 gave us any number of cringe-worthy workplace situations.

Now, Santa has asked for our help as he’s decided to implement the inaugural “Most Naughty in the Workplace” award.

To make it easy for us, he’s created a one-question survey asking us to vote for who we think was MOST NAUGHTY in 2013 in the workplace.  Santa has promised to let me share the results before Christmas.

Happy Voting!

Click here to make your vote count:  CLICK HERE TO VOTE