Employment Blawg Carnival – Tips for HR Spring-Cleaning!

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spring cleaning1I am thrilled to be hosting the Employment Law Blog Carnival this month.  For the uninitiated, this carnival is the brain child of Eric Meyer who writes The Employer Handbook and like the carnivals of old features a vast array of vendors (aka bloggers) sharing their wares (aka HR knowledge).

Tradition has it that the host each month picks a theme and says something (hopefully) witty and inspiring enough to get you to click on that person’s blog entry.  So, without further ado — I bring you the HR Spring Cleaning edition of the Employment Blawg Carnival.

The tulips are blooming, the robins are serenading, and our workplaces still feel stuck in the winter blues.  It’s time to engage in that time-honored tradition – Spring-Cleaning!

Refresh Your HR Training During Spring Cleaning

Spring-cleaning is a tradition that allows us to freshen up our homes and get a head start on the hectic seasons of spring and summer.  Check out this post from Jennifer Keaton at One Mediation to see What Duck Dynasty Can Teach You About HR Training and get some fresh ideas for HR training.

Dust Off Your Employment Contracts for These Lessons Learned

For those of you who use employment contracts, when is the last time you updated them?  Now’s the time – find them, dust them off and update them!

As you’re reading them, John Homquist’s blog “Termination – Rutgers Style” is a good reminder of why it’s important to pay careful attention to what would constitute a “for cause” termination.

Canadian lawyer Stuart Rudner must have been channeling this Spring Cleaning blawg when he wrote “How Dusty Are Your Employment Contracts?”

Would bringing Trayvon Martin-looking shooting targets constitute “for cause” under your employment contracts?  Yes, this is a real situation from a real case as reported here by Philip Miles.

Review Your HR Policies and Codes of Conduct

There are some special chores that, while somewhat painful, need to be done seasonally. Bite the bullet now and do an annual review of your HR polices to ensure they are up to date with changes in the law and still reflect your current corporate culture and operating practices.  Here are seven blogs discussing HR Policy issues:

  • As you review your company’s sexual harassment policy, you may want to review Ari Rosenstein’s short and sweet summary of three of the key lawsuits that govern sexual harassment claims.  
  • Finally – Social Media.  As Heather Bussing explains in her excellent post “Social Media’s Real Legal Issues” there are any number of legal/liability and legal/practical issues created when an employer wants to issue a social media policy.   Employers  will want to ensure that they have done more than just issue a social medial policy; they need to train their employees on how to recognize the issues, understand them and handle them professionally.  If your company doesn’t yet have a social media policy, now is the time to consider implementing one as Daniel Schwartz explains in “Why Employers Need a Policy More Than Ever.”

Update Your Settlement/Severance Agreement Checklists

For those of you negotiating severance agreements, make sure your checklists are up to date by reviewing:

(1) Donna Ballman’s thoughts on how to negotiate a better severance agreement in this interview: “Stand Up For Yourself Without Getting Fired” and

(2) Robert Fitzpatrick’s guidance about how to address payment of FICA in severance agreements.

A Spring-Cleaning Suggestion for the NRLB

And … finally, a respectful spring-cleaning suggestion by Todd Sarver to President Obama.  Todd urges President Obama to consider appointing neutral arbitrators to the NLRB vs. the current practice of appointing practicing management or union attorneys.    “Has the NLRB ‘Jumped the Shark?'”

Happy cleaning!

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Workplace Investigations GroupWorkplace Investigations Group is headquartered in Atlanta, GA but has a national directory of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, corporate counsel and employers can easily identify an investigator who can respond to the regional need quickly, impartially and competently.   For more information:  www.Workplace-Investigations-Group.com

 

 

Internal Investigations: New Guidance from NLRB

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Happy ShushIn July 2012, the National Labor Relations Board held that a blanket approach and policy requiring confidentiality during all internal workplace investigations violates employees’ concerted activity rights under Section 7 of the National Labor Relations Act (NLRA).

As a result, employers were encouraged to review and modify, where appropriate, all internal investigation policies, procedures and forms to determine whether there are nondiscretionary requirements that employees always be instructed to maintain confidentiality of workplace investigations. You can read more about the July 2012 NLRB decision here.

On April 16, 2013, the NLRB released an Advice Memorandum that provides additional clarification on its position on confidentiality in workplace investigations.  Obviously, an Advice Memorandum does not have the same precedential value as a NLRB decision.

Blanket rule on confidentiality viewed as “overly broad”

NLRB Advice Memoranda are helpful nonetheless as employers who follow the guidance provided in them can generally avoid prosecution by the NLRB.  As such, it’s helpful to review the guidance, especially since in this instance the NLRB has provided specific approved language for employer policies on confidentiality in internal workplace investigations.

First, let’s look at the language in the employer’s existing Code of Conduct that the NLRB found objectionable:

“[Employer] has a compelling interest in protecting the integrity of its investigations.  In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.  To assist [Employer] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence.  If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

The NLRB found the employer’s blanket rule on confidentiality in internal investigations overly broad and in violation of Section 7 of the NLRA.  The good news for employers is that the NLRB didn’t just stop there.  It went on to offer suggested alternative language that would be in compliance with Section 7 of the NLRA.  Specifically, the NLRB suggested that the last two sentences of the above be revised as follows:

“[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

Insight for Employers

Confidentiality continues to be a critical aspect of the vast majority of internal workplace investigations.  It is critical for any number of reasons, including the reasons identified in the above policy:  protecting witnesses from harassment, intimidation and retaliation, keeping evidence from being destroyed, ensuring that testimony is not fabricated, and preventing cover-ups.

As such, it is imperative that employers be able to lawfully enforce their confidentiality policies and practices when the need arises.

From a pragmatic perspective, employers will also want to avoid the productivity drain caused by a NLRB inquiry.  To meet these goals, employers are encouraged to review their existing policies and practices and modify the language, as appropriate, to mirror the NLRB’s suggested language.

Employers may also wish to implement a practice of documenting, on a case-by-case basis, the reasons for deciding to instruct witnesses to keep an investigation confidential.

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Workplace Investigations GroupWorkplace Investigations Group is headquartered in Atlanta, GA but has a national directory of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, corporate counsel and employers can easily identify an investigator who can respond to the regional need quickly, impartially and competently.   For more information:  www.Workplace-Investigations-Group.com

$3.5 Million Federal Jury Award in Whistleblower Wrongful Termination Case

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whistle orangeAt first blush, implementing an employee hotline and following-up on complaints might seem a simple endeavor.  The recent $3.5 million federal jury award to an employee terminated after he reported illegal conduct by a supervisor demonstrates that employers must not only have a reporting mechanism in place but perhaps even more importantly must implement sound processes for investigating employee concerns and protecting employees from retaliation.

September 2008 Letter to CEO Reporting Fraud

In 2008, Paul Blakeslee worked for Shaw Environment and Infrastructure, a full-service contractor for environmental and infrastructure projects worldwide. Blakeslee was managing over 40 employees working on a $100+ million contract to maintain facilities at Fort Richardson and Fort Wainwright in Alaska.  When Blakeslee learned that Shaw’s Alaska project manager owned one-third of another private company that was leasing about $2 million in equipment to Shaw, often without competitive bidding, he decided to write a letter to Shaw’s CEO reporting what he believed to be fraud.

According to the lawsuit, Blakeslee said the project manager found out about the planned letter Blakeslee was writing to the company’s CEO and threatened to lay him off.  That exchange happened on a Friday and the following Monday, the company terminated him, telling him they were eliminating his position to save money.

A week or so after the project manager threatened to terminate, Blakeslee sent the planned letter to the CEO.  According to the letter, Blakeslee decided to write the letter after he received a company email  “encouraging any employee to report any illegal or adverse practices existing in the organization.”  Here is an excerpt from an affidavit Blakeslee filed in the subsequent lawsuit providing further background on why he wrote the letter:

“I wrote my letter dated September 19, 2008 because when I learned that Mr. Lantz owned American Leasing, I immediately believed that his ownership was illegal and a conflict of interest. I formed this opinion in August 2008 after the purchasing agent Ron Babbs told me that Lantz owned the company. I started working on my letter in August and I sent it on September 19 after editing and revising the letter over several weeks.”

Blakeslee’s letter was stamped “Received” in the CEO’s office on September 23, 2008. A copy of the letter is attached here.

On the morning of October 6, 2008, Blakeslee was told his position had been eliminated and he was asked to pack his personal items and leave that day.

October 2009 Lawsuit & March 2013 $3.5 Million Jury Verdit

Shaw investigated the concerns raised in Blakeslee’s letter and ultimately terminated the project manager was terminated.  Despite this seeming validation of Blakeslee’s concerns, however, Shaw refused to reinstate Blakeslee.   Blakeslee sued in October 2009 alleging age discrimination, retaliation and wrongful termination.  Click here to read a copy of the Shaw Complaint

Shaw retained counsel and defended aggressively for 4+ years.   The case finally went to trial in March 2013.  After a 12-day trial, the federal jury in Alaska found in favor of Blakeslee concluding that Shaw’s firing of Blakeslee was illegal retaliation for his reporting of the wrongdoing.  The jury awarded Blakeslee $445,574 in lost wages and $486,458 in non-economic damages for his emotional distress. After listening to oral arguments from the attorneys on both sides, the jury also awarded Blakeslee $2.5 million in punitive damages.

In arguing for an award of punitive damages, Blakeslee’s lawyer, Matt Singer, told the jury it was time to hold the company accountable. “You get to stand up to the powerful. You get to stand up, not just for Mr. Blakeslee, but for everybody and say this kind of conduct is not acceptable,” Singer said.

Not surprisingly, Shaw’s attorneys argued against an award of damages telling the jury that the company should not be held liable for the behavior of a “couple bad apples.”   They argued, “Shaw is a company that has tried to do the right thing” and “does not need to be sent a big message, ‘You need to go out and change your ways.’”

Shaw will inevitably file post-verdict motions and an appeal.

In an interview with the Anchorage Daily News, Blakeslee recognized that it is unlikely he will receive any money from the award for many years but that vindication was what was most important to him:

“I probably won’t get it all, but I’ve got four kids. And I’m 76 and my wife is 81. There’s not enough time left for me to spend it,” Blakeslee said. “Charity, my kids, you know. I’m not interested in money, I was just interested in vindication.” “I wouldn’t have cared if I got a dollar. It wouldn’t have made any difference to me.”

 Lessons for Employers

Implementing an employee hotline or other mechanism for employees to use to report concerns in the workplace is only the first step in an effective compliance program.  As important, if not more important, is implementing a process to ensure that complaints are promptly, thoroughly and impartially investigated.  Click here to read why one plaintiff’s attorney says her first line of inquiry in evaluating a prospective client’s case is to review the employer’s investigation.

In addition to conducting a prompt, thorough and impartial investigation, it is also critical that employers take all necessary steps to ensure that the employee who has made the complaint is not retaliated against.  As this case demonstrates, prudent employers should ensure that any adverse employment actions against an employee who has made a complaint are carefully reviewed to ensure such adverse action is being taken for legitimate, non-discriminatory, non-retaliatory reasons.  Prudent employers also understand that where they decide after this review to go forward with the adverse employment action that they will need to be prepared to withstand third-party scrutiny.

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Workplace Investigations GroupWorkplace Investigations Group is headquartered in Atlanta, GA but has a national directory of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, corporate counsel and employers can easily identify an investigator who can respond to the regional need quickly, impartially and competently.   For more information:  www.Workplace-Investigations-Group.com

EEOC Announces Public Meeting to Discuss the Quality Control Plan it is Developing

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The EEOC today announced it will host a public meeting on Wednesday, March 20th at its headquarters in Washington, D.C. to discuss the Quality Control Plan it is developing.  The Quality Control Plan is a part of the EEOC’s Strategic Plan and will revise the criteria it uses to measure the quality of agency investigations and conciliations throughout the nation.

I am honored to have been invited to be one of the panelists at the meeting.  You can click here to see a full list of the other panelists.  I and the other panelists were invited to participate in the meeting as a part of the EEOC’s ongoing efforts to ensure the views of agency staff  and external stakeholders are incorporated into the development process.  The meeting promises to be a fascinating discussion as both sides of the employment bar are well represented as are the various offices of the EEOC.

I submitted my written statement earlier today.  Please click here to read it.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Internal-Investigations.com

Workplace Investigations: Assessing Witness Credibility

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One of the most important and often most challenging tasks of the workplace investigator is to make credibility determinations about witnesses.  Over the years, a common mistake I’ve seen investigators make in investigating allegations of workplace misconduct is failing to make findings of fact because they were not comfortable making the necessary credibility assessments where there were conflicting statements made by the people interviewed.   Good and well-trained investigators, however, recognize that credibility assessments are not only a critical part of their responsibility but also understand the importance of documenting how such credibility assessments were made.

Before I set forth some best practices for assessing witness credibility, I think it’s also helpful to revisit the “honest belief” defense.  Under the “honest belief” defense, if an employer can demonstrate that it had an honestly believed, nondiscriminatory reason for taking the employment action being challenged, an employee cannot establish that the offered reason is pretextual simply because the employee may be able to prove subsequently that the employer was wrong in its honest belief.   I don’t review the “honest belief” defense here as some type of “get out of jail free” card for employers but rather as a reminder of the standard of review that courts will use in reviewing an employer’s decision that is later alleged to be discriminatory.

So, how does an investigator assess witness credibility?  There is a lot of discussion in the literature on this topic, but one of the most pragmatic approaches I’ve suggested over the years is to turn to the pattern jury instructions in the relevant jurisdiction on witness credibility and use them as a guide.  Why?  It goes back to anticipating the “honest belief” defense discussed above.  The investigator is not charged with making factual findings beyond a reasonable doubt or that are 100% accurate, but rather making factual findings based on a well-done and thorough investigation.  The employer will then take or not take an employment action based on its “honest belief” of the facts as established by the investigation.  Utilizing the relevant jurisdiction’s standard jury instructions provides an easily available and defensible checklist should the investigator/employer later have to defend the process used to assess credibility.

Generally, an investigator will be able to locate the applicable pattern jury instructions with a simple “Google” search.  By way of example, I’ve set forth below the Eleventh Circuit Federal Court Pattern Jury Instructions for Criminal Cases (2010).   The Eleventh Circuit includes Georgia, Florida and Alabama.

Credibility of Witnesses

When I say you must consider all the evidence, I don’t mean that you must accept all the evidence as true or accurate.  You should decide whether you believe what each witness had to say, and how important that testimony was.  In making that decision you may believe or disbelieve any witness, in whole or in part.  The number of witnesses testifying concerning a particular point doesn’t necessarily matter.

To decide whether you believe any witness I suggest that you ask yourself a few questions:

• Did the witness impress you as one who was telling the truth?

• Did the witness have any particular reason not to tell the truth?

• Did the witness have a personal interest in the outcome of the case?

• Did the witness seem to have a good memory?

• Did the witness have the opportunity and ability to accurately observe the things he or she testified about?

• Did the witness appear to understand the questions clearly and answer them directly?

• Did the witness’s testimony differ from other testimony or other evidence?

Source:  http://www.ca11.uscourts.gov/documents/jury/crimjury.pdf

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national directory of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, corporate counsel and employers can easily identify an investigator who can respond to the regional need quickly, impartially and competently.   For more information:  www.Workplace-Investigations-Group.com

 

Know Your Own Hot Buttons at Work

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What pushes your buttons at work? This is not an idle question. Knowing the answer can determine your ultimate success and happiness at work.  Why?   Because this type of self-awareness is required before you can make a conscious choice of the appropriate response to conflict in the workplace.

Making a conscious choice of the appropriate response to conflict in the workplace enables you to engage in “good” workplace conflict – the kind that generates creative solutions and increased productivity vs. crippling disputes and wasted time and energy.  Today’s blog is about understanding our hot buttons and in a later blog I’ll talk about the five basic responses to conflict and why it’s important to consciously choose the appropriate response.

Now, back to hot buttons.  Everyone has different hot buttons in the workplace.  According to Professor Stella Ting-Toomey, there are six core sources of conflict triggers  – hot buttons if you will:

  • Competence – you’re triggered when you perceive that someone is questioning your intelligence or skills.
  • Inclusion – you’re triggered when someone appears to be excluding you in some way (from a group, an event, a committee, etc.).
  • Autonomy – you’re triggered when someone appears to be trying to control you, imposing on you, or threatening your self-reliance.
  • Status – you’re triggered when you perceive that someone is threatening or dissing your tangible and intangible assets, including power, position, economic worth, and attractiveness.
  • Reliability – you’re triggered when you perceive that someone is questioning your trustworthiness or dependability.
  • Morality – you’re triggered when someone appears to be questioning your moral values or integrity.

Learn your own conflict triggers in the workplace. Understand what pushes your buttons – what makes you feel like you want to spit nails. This is the first step in  managing the inevitable conflict in the workplace in a more constructive and productive manner.

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Workplace Investigations GroupWorkplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

 

 

Employers Encouraged to Adopt Guiding Principles for Conducting Impartial Workplace Investigations

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In 2012, the Association of Workplace Investigators (“AWI”) released its Guiding Principles for Conducting Impartial Workplace Investigations.  The AWI is a nonprofit with a stated mission “to promote and support workplace investigations as a distinct area of expertise and to enhance the quality of workplace investigations.”  Although AWI is a relatively new organization (incorporated in 2009), it has grown quickly and today has over 350 members.  

The AWI’s Guiding Principles were developed over a two and half-year period with input from the charter members of the AWI.  They provide a general framework and guidance for conducting internal investigations into allegations of workplace misconduct such as harassment, discrimination and retaliation.  Click here for a copy of the AWI Guiding Principles.

Here are a few of the reasons I encourage employers to consider implementing the AWI Guiding Principles.

Reinforce compliance with legal requirements. Being compliant with relevant legal requirements is the absolute minimum standard that organizations must achieve. The AWI Guiding Principles reinforce compliance but also provide a rationale as to why organizations should do more than the minimum.

Support active and positive procedures to responding to allegations of workplace misconduct.  The AWI Guiding Principles provide employers with information to establish processes and practices to follow when faced with an allegation of workplace misconduct that needs to be investigated.

Contribute to a fair and equitable work environment. The AWI Guiding Principles set the stage for developing processes that are clear, known and applied consistently.

Provide tools that will build organizational effectiveness. By implementing the AWI Guiding Principles, employers make a demonstrable commitment to excellence and fairness in the workplace, a concept increasingly important research shows to employees, especially Generation Y.

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national directory of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, corporate counsel and employers can easily identify an investigator who can respond to the regional need quickly, impartially and competently.   For more information:  www.Workplace-Investigations-Group.com

Sexual Harassment and “Love Contracts” — Office Romance to Paperwork!

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Concerned about sexual harassment charges, employers are wary of cupid’s arrow this Valentine’s Day and some of them are turning to “Love Contracts” or in lawyer terms – a Consensual Relationship Agreement.  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!

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

 

 

Internal Investigations: Mistrial Declared After Investigation Notes Produced DURING TRIAL

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Often, when faced with the need to investigate an employee’s complaint of harassment or discrimination, employers will ask their regular company counsel to investigate the allegation and defend the company if litigation ensues.  The recent mistrial declared by Judge Adams in the United States District Court of the Northern District Ohio after 7 days of a jury trial is a dramatic example of why employers may want to rethink this approach.

This case has a somewhat tortured and long history, but here are the highlights relative to the issue of the production of the investigation notes during the jury trial and the selection of the internal investigator.  My Insights for Employers are provided after the summary.

[Lorene’s Update added 06/21/13:  Click hear to read about Judge’s subsequent award of $300,000 in sanctions against employer and its legal counsel].

Procedural Highlights

  • March 2006:  Employees Complain Internally and Regular Counsel Investigates

In March of 2006, at least two employees of Spitzer Motor City (“Spitzer”) complained to management that they were being discriminated against and harassed.  Spitzer’s regular outside counsel was contacted and “investigated” the concerns and advised management on how to proceed.

  • May 2006:  Employees File EEOC Charge and Regular Counsel Responds on Behalf of Employer

Not satisfied with the employer’s response, several employees subsequently filed discrimination and retaliation charges with the EEOC.  Spitzer’s regular counsel responded on behalf of Spitzer citing to the “investigation” he had conducted.  By way of example, here is an excerpt from a letter to the EEOC from Spitzer’s regular counsel:

“In the process of investigating Mr. Okafor’s allegations, I became aware that Mr. Okafor himself has made certain offensive and racially discriminatory comments . . . . These comments and statements by Mr. Okafor are detailed in the attached statements and those statements must be investigated because they violate company policy.”

  • September 2006:  EEOC Files Complaint

In September of 2006, the EEOC filed the first of several Complaints.

  • November 2006:  Regular Counsel Files Answer and Asserts Faragher-Ellerth Affirmative Defense

On November 11, 2006, Spitzer’s regular counsel (the same two attorneys who had investigated the underlying employee complaints) filed Spitzer’s Answer.  In it, they asserted the Faragher/Ellerth affirmative defense.  As such, they put directly at issue the reasonableness and efficacy of their own investigation into the allegations that were the subject of the lawsuit.

  • 2006 – 2010:  Repeated Formal and Informal Discovery Requests for all Documents Related to Internal Investigation

During the discovery period and even after it formally closed, plaintiffs made repeated requests for all documents related to the internal investigation conducted by Spitzer’s regular counsel.  Click here for an example of these requests.

  • Feb. 4, 2010:  Regular Counsel Served with Subpoena to Testify at a Deposition and Bring all Documents Related to His Investigation

Over three years into the lawsuit, plaintiffs served a subpoena on Spitzer’s Regular Counsel.  In it, they compelled him to appear for a deposition and bring with him all documents related to any complaints (formal or informal) of discrimination, harassment or retaliation. You can read the exact wording on the last page of the above link.

  • Feb. 25, 2010:  Regular Company Counsel Files Motion to Withdraw as Counsel

Three weeks later, Spitzer’s regular counsel filed a motion to withdraw.  In so doing, Spitzer’s regular counsel advised the court that he “will be a witness in this matter and cannot continue as counsel.”

  • Feb. 25, 2010: Spitzer Retains New Law Firm 

Almost four years after the first employee complaint, Spitzer had to retain a new law firm.

  • January 14, 2013:  Jury Trial Started

Almost seven years after the first employee complaint, the jury trial started.

  • January 23, 2013:  Mistrial Declared

Six days into the jury trial, it was discovered that Spitzer had failed to produce handwritten notes from the investigation conducted by its regular counsel.  The Judge declared a mistrial.

Insights for Employers

As the above scenario demonstrates all too vividly, it is critical for employers to recognize that if they choose to use their regular legal counsel (either in-house or outside counsel) to conduct a workplace investigation that their regular legal counsel could become a fact witness in any future litigation.  If the investigating attorney becomes a fact witness, any applicable attorney-client privilege would be waived.  Moreover, the attorney and his or her law firm would be conflicted out from the ability to represent the employer in the litigation.

Recognizing the importance that an investigation be impartial and objective and anticipating that the complaint has the potential to end up in litigation, the person selected to conduct the investigation should:

  1. be someone the parties view as impartial;
  2. be familiar with applicable employment laws and the employer policies;
  3. have the time available to devote to conducting a prompt and thorough investigation;
  4. have investigation experience and good interviewing skills;
  5. have a good understanding of the importance of good record keeping;
  6. be someone with good communication skills who will be an effective and credible witness should the complaint result in litigation;
  7. recognize the importance of confidentiality and be able to maintain confidentiality; and
  8. be able to deliver a complete and accurate report.

A thank you and Hat Tip to workplace investigator and blogger Sindy Warren for bringing this case to my attention in her blog article “Workplace Complaint Tip:  Don’t Have Your Lawyer Investigate.”

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Workplace Investigations Group is headquartered in Atlanta, GA but has a national panel of professional workplace investigators who are all attorneys and have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com

Greenberg Traurig Accused of Breaching Mediation Confidentiality Agreement

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Confidentiality is fundamental to the mediation process.  Without the promise of confidentiality, employers and employees would be much less likely to use the mediation process to resolve their disputes.  Without the promise of confidentiality, mediation would not be nearly as effective or widely used as it is today.

A dispute in the discrimination lawsuit pending against the Greenberg Traurig law firm stands as a reminder that promises can be broken. 

Confidentiality Agreement Signed at Mediation

Before the lawsuit was filed, the parties unsuccessfully attempted to mediate the case on October 10, 2012.  Before the mediation started, the parties signed a Confidentiality Agreement that provided in pertinent part:

“In order to promote communication among the parties and the mediator and to facilitate settlement of the dispute, all parties agree that ….

All statements made during the course of the mediation or in mediator follow-up thereafter at any time prior to complete settlement of this matter are privileged settlement discussions, are made without prejudice to any party’s legal position, and are non-discoverable and inadmissible for any purpose including in any legal proceeding.

No aspect of the mediation shall be relied upon or introduced as evidence in any arbitral, judicial, or other proceeding, including, but not limited to:

(a) Views expressed or suggestions made with respect to a possible settlement of the dispute;

(b) Admissions made in the course of the mediation proceedings;

and (c)  Proposals made or views expressed by the mediator or the response of any party.

Since the parties are disclosing sensitive information in reliance upon this agreement of confidentiality, any breach of this agreement would cause irreparable injury for which monetary damages would be inadequate.  Consequently, any party to this agreement may obtain an injunction to prevent disclosure of any such confidential information in violation of this agreement. 

Any party breaching this agreement shall be liable for and shall indemnify the non-breaching parties and the mediator for all costs, expenses, liability, and fees, which may be incurred as a result of such breach.

To the extent that they are applicable, state law and/or the Federal Rules of Evidence apply to this mediation.”

(Emphasis added).

Broken down more simply – the parties to the mediation promised each other that they would keep secret everything that happened at the mediation and in any follow-up discussions to the mediation.  They promised that they would not use information from the mediation “for any purpose including in any legal proceeding.”

Greenberg Traurig Accused of Submitting Mediation Information in Subsequent Legal Proceeding

In an Objection filed with the court on January 11, 2013, Greenberg Traurig is accused of breaking its promise.  More specifically, the law firm is accused of disclosing information in violation of Federal Rules of Evidence and in violation of the signed Mediation Confidentiality Agreement.  Here is an excerpt from the Objection:

“GT’s Filing includes throughout specific details of the parties’ confidential settlement communications.  Details include (1) characterizations and purported quotations of exchanges between Counsel during negotiations, (2) substantive topics covered in mediation briefings, and (3) allegations regarding actions taken and choices made by the parties during negotiations.”

The promise of confidentiality lies at the heart of the mediation process.  Indeed, the EEOC calls it a “core principle,” stating that “[c]onfidentiality allows the parties to freely engage in candid, informal discussions of their interests and concerns in order to reach the best possible resolution of the dispute. It also allows the parties to speak openly without fear that statements made during mediation will be used against them in any subsequent proceeding.”  EEOC’s Handbook for its Resolve Program.

As one commentator has noted, however, this promise of mediation confidentiality, is “wrought with a complex legal analysis where federal courts have contradicted one another.”  We will all be watching as the court analyzes the issue in the Greenberg lawsuit.  

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Workplace Investigations Group has a national panel of professional workplace investigators who have a minimum of ten years of employment litigation experience.  As such, wherever the workplace issue arises, we provide you with an investigator who can respond to the regional need quickly and competently.   For more information:  www.Workplace-Investigations-Group.com