LexisNexis® Legal Newsroom
Workplace Investigations: $300,000 in Sanctions Highlights Risks of Using Employer’s Regular Counsel

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 liability...

Note to Employers: Investigate Harassment Claims

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...

Miami Dolphins Investigation Good Example of Well-Done Internal Workplace Investigation

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...

Workplace Investigations: Tips & Templates for Preserving the Privilege

Although the attorney-client privilege is firmly established as a legal doctrine that protects confidential communications between lawyers and their clients, a recent federal court decision stands as a stark reminder that its application is not absolute. In United States ex rel. Barko v. Halliburton...

Harassment Investigations: New NLRB Decision Complicates Them Even More

A recent decision by the National Labor Relations Board (“NLRB”) has complicated even further the already challenging world of conducting investigations into allegations of workplace harassment. In light of this new ruling, it’s ever more important employers use well-trained investigators...

We Are Always Being Watched—Ray Rice and Workplace Investigations

On Monday, the NFL indefinitely suspended, and the Baltimore Ravens terminated the contract of, Ray Rice after TMZ published security camera footage of Rice hitting his then-fiancée. What’s surprising about this story isn’t that the footage existed, but that it took the NFL six months...

How Swift Response to Racial Slurs and Graffiti Defused a Discrimination Claim

You have an employee handbook, an anti-harassment policy, training, the whole nine. But, sometimes, notwithstanding your best efforts to create a positive, respectful workplace, you receive a complaint from an employee who claims to be the victim of harassment based on [insert protected class]. ...

Workplace Investigations: Ravens Ray Rice Termination Demonstrates Importance of Considering Video Camera Surveillance

Just 12 hours after a video tape of Ravens Ray Rice beating his now wife on February 15, 2014 in a hotel in Atlantic City was published by TMZ , the Ravens had terminated his contract and the NFL had indefinitely suspended him from playing for any NFL team. The video is taken from the surveillance camera...

The Ravens' Tale: Investigations

The Baltimore Ravens are not your typical employer. The NFL is not your typical industry. That being said, the Ravens' handling of the Ray Rice matter is a lesson in what not to do. In hindsight, the organization realized its initial reaction was inappropriate and was able to use the release of a...

Everyone’s Known About Rape Allegations Against FSU’s Winston, But Only “Now” Does FSU Investigate?

Last Friday, FSU posted an “An open letter to the Florida State University community” on its website in response to what it called “misinformation.” In its Open Letter, FSU acknowledges that FSU Campus Police knew of the sexual assault allegations against FSU student and football...

3 Tips for Harassment Investigations

Investigating complaints of inappropriate workplace conduct is a difficult challenge for any number of reasons. But conducting an immediate and thorough investigation is critical to both preventing lawsuits and to avoiding liability should a lawsuit arise. Human-resource professionals often ask for tips...

Sexual Harassment Investigations

by Jami K. Suver Your policies look good on paper, but are you prepared to conduct an effective investigation of workplace sexual harassment? When you receive a complaint of harassment, you need to quickly commence and complete an investigation. Of course, your approach and the questions you ask will...

Facebook Threats Constitute Legitimate Grounds for Termination

Earlier this week, I wrote about the issue of threats made via Facebook constitute constitutionally protected speech. Today’s post also is about threats made via Facebook but in the context of the workplace. The case, decided by the Court of Appeals of Ohio, is timed perfectly for my road trip...

What Can You Learn From Wal-Mart’s Screw Up?

In December 2014, a federal judge here in Atlanta sanctioned Wal-Mart Stores Inc. for destroying evidence in an employee discrimination case. The sanction was twofold: (1) Wal-Mart was ordered to pay $19,980.00 in attorney’s fees to the employee’s attorney; and (2) the federal judge held...

When the Government Comes Knocking, Don’t Forget Not to Retaliate

Last week, I wrote about what to do when OSHA comes knocking . One issue I did not address is the potential for retaliation against employees who provide information to, or otherwise cooperate with, the government. Thankfully, the Department of Labor, on its own blog, recently provided a not-so-subtle...

“Stop Harassing Me!” = Protected Conduct to Support Retaliation Claim, Says Sixth Circuit

What happens when the alleged perpetrator of sexual or other unlawful harassment is also the person to whom the victim lodges a complaint of harassment? If the alleged perpetrator later fires (or causes the firing of) the victim, has the victim engaged in protected conduct (opposition of the harassment...

Given the Stakes, Should the NFL Have Selected a Different Investigator in Deflategate?

Tuesday’s press conference by Ted Wells defending the independence of his internal investigation should serve as a reminder of the importance of selecting an investigator who will not only be independent and impartial but also be perceived as independent and impartial. Wells and his law firm...

Criticisms of Deflategate vs. Domestic Violence Punishments Ignore Critical Fact

The media frenzy continues today as Tom Brady is anticipated to appeal his four-game suspension and connection with DeflateGate. Brady’s suspension has been criticized for being out of proportion with other disciplinary decisions, namely that other players’ domestic violence incidents have...

“Must-Haves” for Your Harassment Investigation

Last week, I posted about harassment “must-haves” for employers , and talked in detail about the first two: a good policy, and training. This week I’d like to talk about “must-have” no. 3 – a prompt, thorough, and fair investigation. PROMPT. “Prompt,”...

Harassment “Must-Have” No. 4: The Determination

It’s the moment of truth! ( Dum-dum-DUM! ) Two weeks ago, we talked about harassment “must-haves” 1 and 2: a good, plain-language policy, and training . Last week, we talked about “must-have” 3: the investigation . Now it’s time to talk about “must-have”...

A Lesson in How Not to Respond to a Harassment Complaint

Diana Retuerto worked in the office of Berea Moving & Storage. She claimed that the company’s owner, Willard Melton, made “verbal advances” towards her, including comments about dreams he was having about her, her physical appearance, and questions about her makeup and hair. Over...

5 Privilege Lessons for Employers from Deflategate

As I wrote about earlier this week, among the challenges Tom Brady is making in the appeal of his 4-game suspension is a challenge to the NFL’s assertion that the investigation file and the communications between the NFL and the attorney who conducted the Deflategate investigation are privileged...

No More Busch in the Gardens: The NLRB Discards 37 Years of Precedent Protecting Witness Statements

by Mark C. Dean Recently, the National Labor Relations Board (“NLRB”) officially overruled longstanding protections against disclosure of witness statements taken by employers during an internal workplace investigation. Since 1978, the Board has maintained that the general duty on an employer...

Don’t Forget to Check Social Networks During Your Workplace Investigations

Cleveland.com reports that a former bi-racial employee has sued a Steak ‘n Shake restaurant for race and disability discrimination: A discrimination lawsuit contends that two employees of a Steak ‘n Shake restaurant in Aurora used racial slurs, including n-----, to refer to a black co...

Rookie Mistake: NFL Ignored Conflict of Interest in Deflategate

The NFL’s decision to use the same law firm to both conduct the “independent” investigation in Deflategate and to advocate for the NFL in the subsequent lawsuit was a rookie mistake. In fact, I think that the judge’s decision today overturning the 4-game suspension can be traced...