HR heads are still spinning as they try to digest what the National Labor Relations Board has tried to accomplish this year.
The Acting General Counsel has issued confusing reports on social media . The Board has also attempted to create quickie union elections , and require companies to abide by...
Earlier this month, I took the NLRB to task for its holding in Banner Estrella Medical Center that an employer's request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees' rights to engage in protected concerted...
by Phyllis Katz
Recently, when advising a client who was investigating a
complaint of sexual harassment, I had the opportunity to revisit the EEOC's
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment
by Supervisors (issued on June 18, 1999).
The information contained...
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...
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
I'm thrilled to be joining my fellow faculty members
later this month to teach at the 5-day national training institute presented by
the Association of Workplace
Investigators ("AWI") in Santa Barbara, CA. The AWI is a
nonprofit with a stated mission "to promote and support workplace...
How do lawyers who represent employees decide which of
the employees who contact them to represent? According to Nina Pirrotti, an
attorney with Garrison, Levin-Epstein, Richardson, Fitzgerald & Pirrotti,
P.C., one of her "first lines of inquiry in evaluating a prospective client's
In 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,
Paper , the Division of Advice reviewed an employer's confidentiality rule
and found it to be unlawfully overbroad. The rule was overbroad because it did
not provided for confidentiality on a case by case basis consistent
with the Board's ruling in Banner Health System , 358 NLRB...
Most employers and their regular counsel and HR managers
are by now well aware of an employer's legal duty to promptly, thoroughly and
impartially investigate any complaint of perceived discrimination, harassment,
or retaliation. They also generally understand that an employer may avoid
When an employer has a procedure for investigating harassment complaints and fails to do so, it will held against the employer in subsequent litigation. The 6th Circuit's decision in Waldo v. Consumers Energy Company serves as a reminder to employers [ an enhanced version of this opinion is available...
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...