Stericycle, Inc.: The Pendulum Swings Again on Confidentiality Restrictions
In Stericycle, Inc., 372 NLRB No. 113 (2023), the National Labor Relations Board again changed course regarding the standard to evaluate facially neutral workplace rules under the National Labor Relations Act. The decision directly impacts the use of confidentiality restrictions relating to workplace investigations. Stericycle returns the inquiry to a case-by-case determination, under which a workplace rule is presumed unlawful if it could reasonably be interpreted to infringe on employee’s Section 7 rights. An employer can overcome the presumption if it proves that (1) the rule advances a legitimate and substantial business interest, and (2) the employer is unable to achieve that interest with any narrower rule.
Investigations in Hollywood: It’s the Same, But Different
From the perspective of a workplace investigator, the entertainment industry is unique. (It is unique for other reasons as well.) This article explores the differences in conducting investigations in the entertainment industry and provides practical guidance for both the investigators conducting them and the companies engaging those investigators. This guidance also extends to similar issues that may arise in other industries.
Seven Rules of Professional Conduct Every Investigator Needs to Know
All California attorneys, including attorney investigators, should be familiar with the State Bar’s Rules of Professional Conduct. Some of these rules can have unique or surprising implications for attorneys who conduct or supervise investigations. Here are seven Rules of Professional Conduct that attorneys involved in workplace investigations should pay attention to closely.
King v. U.S. Bank: 17.2 Million Reasons to Select the Right Investigator
On July 28, 2020, the California Court of Appeal dramatically raised the stakes on an employer’s obligation to select a knowledgeable and experienced workplace investigator. Based largely on U.S. Bank’s inadequate investigation, the Court awarded the plaintiff an astounding $17.2 million in compensatory and punitive damages for defamation, wrongful termination, and breach of the implied covenant of good faith and fair dealing.
Conducting Adequate Investigations: Five Cases Every Investigator Needs to Know
California law clearly requires employers to adequately investigate any employee’s claims of discrimination, retaliation, or harassment. But what makes an investigation “adequate”? These five cases provide insight as to what does—and what does not—constitute an adequate investigation under California law.
How to Investigate Anonymous Hotline Reports
Many of our clients are experiencing a surge in investigations as companies start to come back to work after the coronavirus lockdowns. In particular, there have been more complaints arising via company hotlines, possibly because many employees have been working remotely from home. Investigating hotline complaints – especially anonymous ones – can pose unique challenges. This article offers guidance by way of a hypothetical.
California Gives Hollywood the Go-Ahead to Resume Production
On June 1, 2020, a group of entertainment industry organizations and companies dubbed the Industry-Wide Labor-Management Safety Committee Task Force (the “Task Force”) sent a 22-page proposal to the governors of California and New York with guidelines to safely resume film and television productions. Although specific to productions, Hollywood’s plans may also be helpful to other industries trying to develop their own procedures for safely reopening.
Six Types of Investigations Coming Soon to a Workplace Near You
COVID-19 has forced everyone to made sudden and dramatic changes to almost every aspect of their lives. Restrictions put into place to slow the spread of the virus have forced many businesses to either close or abruptly shift to telework. Numerous workers have had their hours or compensation reduced or have lost their jobs entirely.
As businesses begin to slowly reopen, employees’ concerns about health, safety, job security, and fairness may fuel a variety of COVID-related complaints, increasing the need for workplace investigations. Here are six areas to watch as employees return to the physical workplace.
Six Tips to Conduct Effective Remote Witness Interviews
Conducting investigations remotely is quickly becoming the new standard procedure as both investigators and employees have found themselves routinely working from home. Here are six tips to help remote investigators conduct witness interviews like a pro.
Big Names, Big Stakes: Navigating Challenges in High-Profile Investigations
Investigations involving high-profile or powerful accused parties—like those publicized in the news media in recent months—present particular challenges for both investigators and the outside counsel who advise affected companies. This article shares some of our insights gained in conducting these high-stakes investigations, built upon our firm’s collective experience conducting over 500 investigations across a wide variety of subjects and industries.
DFEH Releases New Workplace Harassment Guide for California Employers
In May 2017, the Department of Fair Employment and Housing (DFEH) released a new Workplace Harassment Guide for California Employers to help California employers understand their obligation to take reasonable steps to prevent and correct workplace harassment. It provides detailed new guidance regarding how to respond to and investigate reports of harassment, including harassment based on sex.
Common Investigation Pitfalls and How to Avoid Them, Part 1: Gearing Up
In an increasing trend, parties to employment lawsuits find themselves litigating not only the plaintiff’s underlying employment claims but also the company’s investigation – or lack thereof – into the plaintiff’s complaints.
A variety of potential pitfalls can compromise the actual and perceived quality of an investigation. That, in turn, can cast a shadow on the company and its motives, either to the jury in a future lawsuit or in general to other employees. This first installment of the three-part series will identify common investigation mistakes and how to avoid them.
Common Investigation Pitfalls and How to Avoid Them, Part 2: Doing It Right
A variety of potential pitfalls can compromise the actual and perceived quality of an investigation. That, in turn, can cast a shadow on the company and its motives, either to the jury in a future lawsuit or in general to other employees. This second installment of the three-part series will identify common investigation mistakes and how to avoid them.
Common Investigation Pitfalls and How to Avoid Them, Part 3: Wrapping Up
A variety of potential pitfalls can compromise the actual and perceived quality of an investigation. That, in turn, can cast a shadow on the company and its motives, either to the jury in a future lawsuit or in general to other employees. This third and final installment of the three-part series will identify common investigation mistakes and how to avoid them.
When Should You Hire an Outside Investigator?
In many circumstances, a company’s internal HR personnel can and probably should conduct investigations into allegations of workplace misconduct. On the other hand, we have also seen companies come to regret decisions to use internal investigators. This article discusses situations in which an outside attorney investigator should be considered.
Independent Investigator Hiring Checklist
Hiring the right outside independent workplace investigator is important, but it’s not always easy. If you hire the right investigator, you’ll have a timely, fair and thorough investigation and meet any legal obligations your organization might have. But hiring the wrong investigator could subject your company to potential legal liability and result in unnecessary disruption to the business. This article provides a checklist to consider when hiring an independent, neutral workplace investigator.