Can Employers Order Silence? The New Dialogue on Workplace Investigation Confidentiality

If you are an HR Professional or Employment Attorney, you probably have been peppered recently with reminders about the NLRB and the EEOC’s stances on the degree of control that employers have over employees who may have something to say about working conditions and more.

What has had some people scratching their heads is on figuring out where “the line” is when it comes to a workplace investigation (everything from a follow-up on a complaint to a formal investigation into written allegations of unlawful conduct – such as harassment, discrimination and retaliation).  The questions being pondered include:

  1. Can an employer’s standard protocol for workplace investigations include suggesting or directing employees not to discuss the investigation…even if just during the time that it is pending?  (Answer:  Probably Not and Nope.)
  2. If an employer doesn’t control chatter and gossip about an ongoing internal investigation, does that leave the complainant (usually the victim) in a vulnerable position of being subjected to retaliatory social fall-out? (Answer: Probably Not.  Directing Silence vs. Directing Against Retaliatory Conduct are Different).
  3. What “evidence” would justify an employer directing employees not to discuss an ongoing investigation or the contents of an investigative interview?  And, once the evidence is obtained, doesn’t that mean that the investigation already has been compromised if witnesses are comparing notes, influencing [intimidating?] witnesses’ recollections, etc.?  (Answer:  Evidence and justifications for confidentiality directions should be obtained in advance of the directive being made appears to be the moral of the story.)
  4. Where is the line between the employer and the “impartial investigator” on this issue?  Is it the investigator who determines whether directives regarding confidentiality are warranted to preserve the integrity of the investigation or is it the employer?  This distinction certainly matters when the investigator is a third-party and liability is on the line.

These issues are significant and largely unknown to those who are not specialists in this area.  Employers should ensure that their HR professionals and any investigators it retains are knowledgeable about the laws governing workplace investigations.  Training, like that offered by One Mediation, can assist investigators in avoiding missteps.

Additional Commentary from several attorney bloggers on this issue can be accessed below:

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Fall 2012 Divorce Seminars For “Real People” In Metro-Atlanta

Divorce is a process that many only face once in a lifetime.  So, individuals facing issues of separation and divorce have a steep learning curve in the midst of an emotional storm that can be paralyzing, as well as stressful, expensive and confusing.  Many attorneys, therapists, and others provide local divorce resources.

A listing of Fall 2012 Divorce Seminars in Atlanta can be found here with links to the relevant entities sponsoring the programs:

  • Saturday, October 20th – Speeddivorcing  (Atlanta). Get divorce information fast from lawyers, therapists, financial experts, real estate & insurance brokers, etc.  Audio info from past attendees.
If you are offering a divorce-related seminar, please let us know at contact@onemediation.com.  The Visions Anew Institute’s entire listing of Hot Shot sessions (through January 2013) can be accessed here.

Workplace Investigation Training Module I – Atlanta, Friday, September 28th

One Mediation provides Human Resources professionals, in-house counsel and risk managers with engaging, active training on conducting an internal, workplace misconduct investigation.

Module I provides a strong foundation on the role of an investigation in resolving concerns, along with specific activities geared towards interviewing witnesses professionally and competently.  Module II is a practicum for attendees to work through the components of a workplace investigation, through to a mock deposition, with immediate feedback from Labor & Employment litigators.   Registrants may choose to attend only Module I; though completion of Module I is a pre-requisite to registering for Module II.  The agendas for Module I and for Module II are available.

Credits through HRCI are available.

REGISTRATION:
Module I is offered in Buckhead on September 28, 2012, starting at 9:00 a.m. and ending at 4:45 p.m. Early Bird Registration ($295) closes August 30, 2012. Regular tuition: $395.00.
Module II Practicum is offered on a Friday/Saturday format. In 2012, it is offered two times: June 22-23 and again October 5-6. Regular tuition: $995.00 (Early Bird: $825).
Registration for both Module I and the Module II Practicum is $1,300 (Early Bird $1,100).
FACULTY:
Faculty include Lorene Schaefer, Esq. and Jennifer Keaton, Esq.  These attorneys and workplace investigators have significant Labor and Employment litigation experience regarding EEOC Charges, Sarbanes-Oxley Charges, tort claims, and internal grievances that involve concerns of harassment, discrimination, bullying, poor leadership/supervision, and whistleblower and retaliation concerns. They put their litigation and investigation experience to work with these active-learning seminars.
Call One Mediation for more information (404-720-0599) or visit them online.

What Goes On At Divorce Mediations? Sample Agenda Here.

Mediation is a confidential process.  This confidentiality can make mediation seem mysterious, inaccessible, and even scary when it involves divorce.  Save family lawyers and divorce mediators, most individuals facing divorce are uncertain about the divorce process that occurs in open court.

The unknown is often feared.  Thus, the secrecy of mediation, generally viewed as a positive attribute, can be its own worst enemy particularly in the divorce context.   Dispelling some of the mystery, a sample agenda for a divorce mediation can be accessed here.

To learn more about divorce mediation, there are mediation coaches and frequent seminars offered by One Mediation.  Call 404-720-0599 to register for upcoming seminars or to schedule an appointment with a mediation coach.

Is Instructing an Employee Not to Discuss an Investigation a Violation of Title VII?

by Lorene F. Schaefer, Esq.

It seems that at least some offices of the EEOC may be adopting the position that employers are in violation of Title VII if they have policies that warn employees who participate in an internal investigation that they could be subject to discipline or discharge for discussing the investigation.  In a letter dated August 3, 2012, the Buffalo, NY office of the EEOC notified an employer that it was expanding its investigation into a discrimination charge and giving the employer an opportunity to respond. Here is the relevant excerpt from the letter:

“You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition.  It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination.  So, discussing one’s complaints of sexual harassment with others is protected opposition.  An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.  In this case, telling the ___ women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute a harm under Title VII.  There does not have to be a separate adverse action.  In addition, your written policy is so broad that a reasonable employee could conclude from reading it that she could face discipline or charge for making inquiries to the EEOC about harassment if that harassment is being or has been investigated internally by your organization.”

Obviously, this letter from the Buffalo office is not law and the analysis stated therein may be limited to the Buffalo office and perhaps even to this specific charge.  This letter does, however, highlight some of the challenges and potential pitfalls for employers as they investigate claims of discrimination or harassment in today’s dynamic legal environment.

My understanding is that other offices of the EEOC may be taking similar positions.  I would be interested in hearing from readers who have experience with this issue in other offices of the EEOC.

Insights for Employers

Good employers recognize the importance of having compliance programs that ease the filing of employee complaints and provide for prompt, thorough and impartial investigations.  Employers who establish, disseminate and enforce anti-harassment policies and complaint procedures and conduct prompt, thorough and impartial investigations and take appropriate corrective action are afforded an affirmative defense to sexual harassment complaints.

In my blog last week, I suggested that, in light of the NLRB’s controversial decision in Banner Estralla Medical Center, the need for speed in a workplace misconduct investigation was increased.  If the EEOC intends to take the position that an employer’s confidentiality instruction to an employee during a harassment investigation is itself a violation of Title VII, then the need for a very prompt and well-planned investigation where employees are interviewed quickly (without an opportunity to coordinate their stories) becomes even more critical.

For those employers who conduct internal investigations in-house, ensuring that their investigators keep their skills up-to-date is also crucial. For employers who do not have professional staff with the experience, knowledge, and expertise to conduct legally defensible workplace investigations, I suggest they proactively identify an outside investigator who possesses these qualifications.  Workplace investigators are kind of akin to plumbers – you hope to never to need one, but when you do need one you need a good one and you need them fast.

Minimizing Legal Costs? An Expert’s Tips

This article gives fourteen tips from an experienced divorce attorney on simple things that clients can do to minimize legal expenses in divorce.  Simple.  Practical.

Is Speed the Answer to the NLRB’s Decision on Workplace Investigations?

In this week’s Banner Estrella Medical Center [pdf] decision, the NLRB held that employers may violate employees’ rights to engage in protected concerted activity when requesting employees not to discuss an ongoing investigation into allegations of workplace misconduct.  

In this case, the employer’s standard procedures for internal investigations required investigators to request that employees not discuss an ongoing investigation.  At the trial level, the judge did not find this standard procedure problematic because it served the legitimate business purpose of protecting the integrity of the investigation. The NLRB disagreed and reversed the judge’s decision on this issue.  

While this controversial decision will be tested, employers are left to figure out what to do in the meantime to protect the credibility and accuracy of an internal investigation.  There are three things that employers can do now:

  • Employers should 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.  
  • Employers should ensure that their internal investigation policies provide guidance on when such confidentiality instructions are appropriate.   
  • Employers should focus on increasing the speed of investigations, which means they need to ensure they have identified well-qualified investigators who are ready to go when the need arises and may also mean involving multiple investigators or a team of investigators to complete document review, witness interviews, and follow-up as quickly as possible to combat the risks of witness contamination and more. 

With this decision, the focus on the speed of an investigation will be sharpened.  Employers should consult with local investigation resources or the Association of Workplace Investigators (www.aowi.org) in order to locate and retain competent investigators who can respond quickly and in teams.

Alimony in Georgia: No Guarantees

In Georgia, alimony – a monetary payment of support – is an unpredictable proposition at best.   There is no formula in the statutes that indicates even what the “range” might be for an alimony payment and there is basically only one bright-line rule regarding what divorces will NOT be eligible for alimony.  Unsurprisingly, alimony can be a very contentious issue in Georgia divorces and be a bar to reasonable and rational settlements.

However, there are a few pieces of information about alimony that may help serve as a starting point for understanding and talking about it:

  • There is permanent alimony and temporary alimony.
  • There is periodic payments of alimony and “lump sum” payment of alimony.
  • Certain forms of infidelity can serve as a bar to an award of alimony.
  • No formula exists for calculating alimony, but generally there is a balancing act set forth in the Georgia statutes regarding the “need” of the party seeking alimony and the “ability to pay” by the other party.
  • Alimony has tax implications for the person receiving the monies and for the person paying the monies.   Click here for quick info on this item.

In divorce mediations, negotiating alimony can be an emotionally charged issue that results in irrational positions.  Sometime the dollars spent fighting over alimony or the amount of alimony are much higher than the actual amount of alimony being disputed.  Adding insult to financial injury, alimony may be deducted from the paying party’s income, while legal fees in divorce may not be eligible for deductions (check out Publication 504 for details).

The bottom line on alimony in Georgia is that there are no guarantees, but getting informed on these issues and consulting with good professionals early in the divorce process is critical to avoiding missteps and preserving finances, time, and emotional capital.

 

Workplace Investigations In Caselaw

Think that workplace investigations aren’t that important?  Think Again!

Federal courts are taking close looks at how employers handle indications that harassment, retaliation and discrimination is occurring in the workplace.  These cases highlight the importance of prompt, effective, and impartial investigations into reports of misconduct in the workplace, particularly when the allegations involve discrimination or other civil rights claims.

Below is a listing of several federal cases that have been rendered that involve workplace investigations: