19

September, 2022

Workplace Investigations: Why Get a Written Report

One of the thorny process questions that eventually arises in any workplace investigation is whether and how to memorialize the findings and conclusions from the investigation. Is it sufficient just to save the notes from the investigation interviews in a file? How about a letter notifying the key parties that the investigation has been closed and the concerns raised were or were not substantiated? Perhaps an executive summary would be helpful to memorialize the concerns raised, the process followed, and the final conclusions? Or should you also capture the factual information considered and assessed in reaching those conclusions?

Retaining Notes
Yes, the notes should be saved from all investigation interviews. So should any other documents, photos, data, recordings, video or other electronic communications that may have been considered. All those items are important to reflect what issues were raised, what information was gathered, and what support exists for the concerns.

Notifying the Parties
Yes, you should notify the key parties whether the concerns raised were or were not substantiated. It is even more helpful if you inform all the parties – not just the complainant(s) and respondent(s) – that the investigation has been closed. Those communications may be verbal or written, depending on your organization’s practice and best determined with the guidance of legal counsel.

What is most important is that the communications actually occur. It provides closure to the parties and those involved in the investigation. That way they know that the issues were considered and appropriate actions have been taken. You thereby enhance confidence in your process — that concerns raised do not fall into a “black hole.” You also stem the tide of gossip.

When there is no follow-up, people wonder whatever happened with the matter that x person raised. Worse still, people conclude that because they heard nothing further it must mean that the organization did nothing with the information that those individuals had provided. All your hard work to investigate becomes for naught.

Drafting an Executive Summary
It often is helpful to prepare at least an executive summary of the investigation that was conducted. The executive summary should:
• Outline the concerns raised and when they were brought to the organization’s attention;
• Identify who was interviewed and their job titles;
• Identify what documents or other information was reviewed; and
• State the conclusions with regard to each concern raised and the key findings in support of those conclusions.

The executive summary serves essentially as a road map.  Decisionmakers can reference it as a basis for considering appropriate responsive action. Should a concern arise in the future involving one or more of the same parties or work group, a subsequent investigator can similarly reference the executive summary to understand the scope of the prior investigation.

While helpful, an executive summary by definition lacks detail. It does not summarize the information provided by each interviewee, it includes limited information about where conflicting accounts were provided and how credibility was assessed, and it most certainly cannot “stand on its own,” should the underlying complaint proceed to an adversarial posture. For that level of detail, you need a full written report.

Advantages of a Written Report
A written report should start with an executive summary and offers all the benefits of that as a road map to the issues, process followed, and conclusions. The written report should go further, though, and tell the full narrative of what concerns have been raised, what the interviewees said in regard to those concerns, where documentary or other evidence was relevant to the concerns, what conclusions were reached, and how those conclusions were derived. In contrast to the executive summary, the written report should provide sufficient detail such that it is not necessary for the investigator to provide any additional information.

A written report thus reflects the investigator’s findings and analysis, and thereby supports the conclusions reached. It memorializes a considered process and demonstrates due diligence by the organization. The report also allows decisionmakers to carefully consider appropriate action, consistent with the investigator’s findings.

Not every workplace investigation results in the drafting of a full written report. Cost and time often are significant factors, as a written report is not something that can be knocked out in a few hours. Where an investigation has found sufficiently serious violations of policy that the organization has decided to terminate the respondent’s employment, some organizations conclude that no written report is necessary. The termination itself is viewed to demonstrate the seriousness with which the issues were considered and addressed. Other organizations in that same situation will conclude that a written report is very much needed to memorialize why the respondent’s employment was terminated. That is particularly so if the terminated individual would have been eligible for some severance package, stock award or bonus, or is to be stripped of a prior award, based on whether employment was terminated “for cause.”

A written report offers other benefits. Sometimes an organization may disclose portions or all of the report to a complainant’s attorney and can use the report to further settlement discussions. Other times, the persuasion is internal, and the report may be impactful in garnering support from senior leaders for changes within the organization.

Ultimately, whether to request or prepare a written report is an individualized determination. Workplace investigations, done properly, take time and care. Organizations that commit that level of effort would do well to ensure they have memorialized their efforts in some fashion. That written record can inform future actions relevant to the individuals and group involved and the organization as a whole, and it can protect the organization in the event a matter proceeds to litigation.

By Tracey I. Levy

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29

August, 2022

Unlimited Time Off Presents Hidden Challenges for Employers

I have increasingly been fielding inquiries from organizations that are looking to implement some version of unlimited time off for their employees. They saw that employees continued to be productive while working remotely during the pandemic, and they want to give them the flexibility to take time off as/when needed – provided the work still gets done. The motives behind these policies are commendable, but the challenge lies in their implementation.

Consider Scope as to Legally Required Time Off
Employers currently face a myriad of paid leave requirements, which vary by state and locality. These laws may mandate paid time for sick leave, domestic violence victims, care of family members, voting, jury service, witness duty, blood donation, bone marrow donation, attending school meetings and activities, public health emergencies, bereavement, or for no specific reason at all. When considering an unlimited time off policy, employers need to determine whether the policy is intended to cover some or all of these paid time off legal requirements.

Employers are also required in various locations to provide a range of unpaid time off, which may include family and medical leave, pregnancy disability leave, military leave, family military leave, leave for first responders, leave for crime victims, and lengthier leave for jury service. Some states offer partial compensation through state-regulated programs for certain periods of unpaid leave. In most circumstances, even the biggest proponents of unlimited paid time off do not intend to pay for the time used during most or all of these leave periods, particularly not for legally required leaves that can extend for months at a time. The scope of the unlimited time off policy in relation to legally required leaves needs to be determined in advance so that policies can be properly drafted.

Is This Just for the Employee’s Self-Care, or Family Too?
Also when considering scope, employers should determine whether they want unlimited paid time to be available for care of family members. Employers may intend for the unlimited paid time to cover employees who are themselves ill or injured, even for extended periods of time, and they can cap their payroll exposure by requiring qualifying employees to apply for short-term and long-term disability benefits for more extended absences. However, most paid sick leave laws are not limited to leave for the employee’s own illness or injury. The sick leave laws extend to family members – often spanning multiple generations and even individuals who are “like” family but with no blood or marital relationship.

Granting unlimited paid time off to care for family members can quickly leave an employer in an awkward situation of trying to balance its broad policy offering, the statutory protections that cover at least part of the leave time, and the need to have the employee get work done. Some employers address this by carving out care of family from their “unlimited” time off policies. They may choose to grant only the legally required leave for care of these individuals, or may provide a benefit that is more generous than the law, but less than “unlimited.” Other employers reframe the unlimited time off policy as intended for discretionary and personal reasons, akin to a combination of vacation, personal days and flexible holidays, and maintain a separate, statutory-compliant paid sick and safe leave policy that caps the amount of time employees can use for their own or a family member’s illness, injury or related medical or safety reasons.

Consider Approvals and Documentation
The temptation and appeal of an unlimited policy is to be free from all the legal mandates related to time off policies. Senior leaders just want employees to be “responsible adults,” take the time they need and make sure they do their jobs.

The reality is that reasonable minds will differ as to when an employee is acting responsibly when determining when and for how long to take off from work. “Unlimited” time does not relieve managers of the responsibility to manage their employees.

While requesting medical or other documentation in support of a time off request may seem superfluous if the time off is “unlimited,” such documentation can be critical to ensure that, when time is being taken for legally protected reasons, it is given appropriate consideration. And when time is being taken “just because,” managers should have greater flexibility to advise employees if the scheduling of that time off would be contrary to business needs, and delay or deny those requests.

Spell It All Out in Writing
An unlimited paid time off policy must address all the above considerations and the parameters that the employer has chosen to set with regard to the scope, use, timing, and ancillary requirements under its policy. To the extent that paid or unpaid leave laws may require specific language or provisions to be included, that too should be folded into the unlimited time off policy – if the leave law is intended to be satisfied through the unlimited paid time off policy. And if the legally protected leave is being carved out as an exception to “unlimited” paid time off, then that needs to be made clear in the written policies as well.

Finally, in those locations where paid sick leave and other specific time off accruals and usage need to be reflected on pay stubs or elsewhere, employers should consult with legal counsel and their payroll provider as to where and how accruals should be reflected. Some jurisdictions have held that no accruals need to be posted when a policy grants unlimited time, while other jurisdictions have been less clear on how that notice requirement is to be satisfied.

Keep Perspective
Legislators mean well when they adopt new paid and unpaid leave requirements. But these laws are often written from the perspective of protecting employees from miserly employers. They can feel unduly constricting to generous employers that want to give employees time to relax and manage their personal obligations, but do not want to run afoul of the law.

Some version of “unlimited” time off is achievable even in the most regulated localities. The policies just need to be thought through in advance, in the context of applicable leave laws, and drafted to cover the relevant parameters. This is one of those situations in which it would be prudent to seek guidance from legal counsel.

By Tracey I. Levy

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16

August, 2022

Employer’s Enforcement of Social Media Policies May Turn on State Law

Can you discipline or even fire an employee for postings on a personal social media account that convey a message inconsistent with the values of the organization?  The answer may depend on geography.

State borders affect employees’ workplace rights.  One example of this is the varying approaches that New Jersey, New York and Connecticut have taken with regard to employees’ “free speech” rights.  Technically, employees working in the private sector have no First Amendment free speech rights, as I recently discussed in a prior blog article, because the Bill of Rights only applies to government action.  But state laws can also grant employees free speech protections.  Connecticut has done so; New Jersey has not; New York is sort of in the middle.

Connecticut Protects Employees’ Free Speech

Connecticut prohibits all employers from disciplining or discharging  an employee for exercising rights guaranteed by the First Amendment or similar provisions in the Connecticut Constitution, provided the activity does not “substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”   On its face, the law does not protect all forms of employee speech, and the courts have interpreted the law to include two additional limitations, consistent with constitutional law principles:

  1. 1. The employee’s speech must pertain to a matter of public concern, and not merely an employee’s personal matters; and
  2. 2. (a) The employee generally needs to be speaking as an individual, and not in an official or representative capacity for the employer; or

(b)The employee’s speech in an official capacity must be related to a matter of significant public interest that involves dishonest or dangerous practices by the employer, and the employee’s interest in speaking up must outweigh the employer’s right to control its own employees and policies.

There are few reported cases in which an individual working for a private employer successfully established protection under the statute.

The current legal standard for analyzing these claims was outlined by the Connecticut Supreme Court in Trusz v. UBS Realty (CT 2015).  In the subsequent history of that case, the federal district court in Connecticut held that the head of UBS Realty’s valuation unit could proceed to trial with a claim that he was wrongfully terminated under Connecticut’s free speech law for a whistleblower complaint.  Trusz complained that he had repeatedly raised concerns that the employer’s failure to disclose property valuation errors to investors and adjust its management fees based on those errors was a violation of the company’s fiduciary, legal and ethical obligations to its investors.

Subsequent courts have allowed claims to proceed against private employers in analogous whistleblowing contexts:

  • for declining a supervisor’s direct request and expressing discomfort with creating fraudulent time sheets for services a non-profit had not provided, to be presented at an upcoming state audit;
  • for twice objecting to driving a tractor trailer transporting hazardous waste on public highways using vehicles that presented safety issues; and
  • for expressing concerns to the owner of a used car dealership that a supervisor was having firearms delivered to the office and storing them unlocked under his desk.

In contrast, the courts have declined to allow claims to proceed that involved matters of employer policy or individual behaviors.  For example:

  • dismissing a claim based on a manager internally raising a pay inequity among supervisors;
  • striking an employment discrimination claim that an employee was disciplined because of her personal friendship with a former CEO; and
  • striking a claim based on concerns raised in an open workplace forum that the company was paying large bonuses to executives in a poor economic climate that would hurt shareholders and the public good.

The modest number of private sector cases under the Connecticut free speech law is indicative of the limitations in its reach, and none appear to have considered the law in the context of an employee’s social media activity.

The Trusz case and other decisions suggest that social media posts that pertain to whistleblowing activity may fall within the protections of the free speech law.  Employers that are looking to discipline employees for social medial activity on other subjects, such as political expressions on race, religion, abortion, or other sensitive matters that may not align with the employer’s expressed values, should first consult with legal counsel as to whether the employees’ conduct is likely to be considered protected.

New Jersey Does Not Provide Free Speech Protection

The hypothetical situation of the employee posting on social media was directly considered by the New Jersey Appellate Division in McVey v. Atlanticare Medical System (May 20, 2022).  The case originated in 2020, during the height of the nationwide protests responding to the death of George Floyd.  The plaintiff, who held the title of Corporate Director of Customer Service, participated in a Facebook discussion related to the Black Lives Matter movement and responded that she found the phrase to be racist and bothersome because it “causes segregation.”  In response to a further post that Black Lives Matter is bringing attention to the plight of Black people who are dying in America, she replied, “’[T]they are not dying…they are killing themselves,” and she later posted that she “’support[ed] all lives . . . as a nurse they all matter[,] and [she] d[id] not discriminate.’”

The employee’s job title and affiliation with her employer were clearly identified on her Facebook profile, and her postings came to the attention of senior management, who asked her about them.  The employee acknowledged the posts, and in a subsequent meeting with senior managers she revealed she was recording the conversation.  The employee was promptly terminated for “repeated instances of poor management judgment” and a “failure to uphold the company’s values.”

The employee sued, asserting that she had been wrongfully terminated in violation of public policy, citing the First Amendment and the corollary protections under the New Jersey Constitution.  The New Jersey Appellate Division held that neither the First Amendment nor the New Jersey Constitution reflect a clear mandate of public policy that prohibited the employee’s termination.  The Court observed that these constitutional protections apply to state action, and not actions taken by a private employer toward an at-will employee, and specifically noted that New Jersey had no corollary to Connecticut’s free speech law.

New York’s Middle Ground

New York law does not expressly provide employees with free speech protections in the private sector, but it does protect employees’ right to engage in certain lawful activities outside of work.  Four types of activities are expressly protected by New York law:

  • certain political activities – running for public office, campaigning for a political candidate, or fund-raising for a candidate, political party or political advocacy group – if conducted completely outside of work;
  • legal use of “consumable products” (ie: alcohol, tobacco products and now marijuana) if conducted completely outside of work;
  • legal recreational activities – sports, games, hobbies, exercise, reading, watching television or movies and similar leisure time activity – if conducted completely outside of work; and
  • union membership or related organizing activities.

Evan as to those protected activities, the law expressly allows employers to take actions to protect trade secrets, proprietary information and other business interests; to direct employees into a substance abuse or alcohol program; and to align with union contracts.

The statute’s limited definition of “political activities” would not extend to most employee social media activity.  Rather, such activities may fall within the third category of “legal recreational activities.”  There is a difference, however, between an employer disciplining an employee for blogging or posting in general on social media, and an employer responding to the content of specific messages or images that an employee may post or respond to on social media.  The former is likely protected; the latter may not be.  Again, employers should consult with legal counsel before taking disciplinary action in this context.

Employers Should Proceed with Caution

The McVey decision should give New Jersey employers some comfort and bright-line principles for addressing employees’ social medial activity, at least where employees have directly identified their employer affiliation in their postings.  Employers in Connecticut and New York should be mindful that there are legal protections that extend to employees in this context, and should seek legal advice relative to specific factual situations before taking responsive actions.

By Tracey I. Levy

 

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8

August, 2022

New Private Employee Protections in Connecticut Curtail Employer Political/Religious Communications

Private Connecticut employers must be careful about imposing their political or religious views on their employees, as a result of a new restriction on employer speech that took effect July 1, 2022.  While apparently intended to target union opposition, the law has much broader application.

Titled “An Act Protecting Employee Freedom of Speech and Conscience,” the law has largely been discussed and presented in the media and on other blogs as targeting “captive audience meetings,” in which employers would address the union organizing process and present their case for why a union may not be beneficial for their employees.  In prior years, the Connecticut attorney general had advised that a law specifically prohibiting employers from requiring employees to attend those meetings was likely to be invalidated on the grounds that it was preempted by the federal National Labor Relations Act.

The Connecticut legislature therefore went broader – much broader – and tacked a passing reference to unions on to what is now a law that grants Connecticut employees a protected right to refuse to:

  • attend any employer-sponsored meeting, or
  • otherwise listen to or view communications,

that are primarily intended to communicate the employer’s opinion on religious or political matters.  If you want to know more about the union organizing implications of this law, I encourage you to read the articles posted by Ogletree Deakins and Littler on the subject.  I instead want to focus on the scope of the law beyond the union context.

“Political matters” are defined to include elections, political parties, proposed legislation or regulations, and “the decision to join or support any political party or political, civic, community, fraternal or labor organization.”  “Religious matters” are defined to relate to religious affiliation and practice and the decision to join or support any religious organization or association.  Employers who discipline or threaten to discipline an employee for refusing to attend an employer meeting or listen to or view a communication on one of these subjects are liable to the employee for gross loss of wages, costs and reasonable attorney’s fees.

Given the breadth of the law’s opening language and the potential chilling effect on workplaces as employers parse what comprises political or religious speech, the law offers a few limited and somewhat vague exceptions, to exclude communications:

  • of legally required information;
  • of information that is necessary for employees to perform their job;
  • that are part of coursework, symposia or an academic program involving an institution of higher education;
  • amounting to casual, non-mandatory conversations between employees or with an agent or representative of the employer; or
  • that are limited to the employer’s managerial and supervisory employees.

Religious organizations also are generally exempt from the act with regard to speech to employees on religious matters.

This is a somewhat frought time for employers to face restrictions on what they can communicate pertaining to political and religious views.  Some employers, wrestling with the Supreme Court’s recent abortion decision in Dobbs v. Jackson Women’s Health Org. and employee reactions to that decision, have been modifying their benefit programs, holding support sessions, or otherwise communicating perspectives related to abortion.  In Connecticut, these employers now need to ensure that their messaging and meetings steer clear of the restrictions imposed by the new “freedom of speech and conscience protections.”  

 And similarly, as we head into a contentious election year, Connecticut employers must be extra cautious about not requiring or pressuring employees to attend meetings the employer may host with politicians, and in reviewing any communications the employer may make on the elections, legislative proposals, and other political issues.  It often is not a good practice for employers to impose their political views on employees – it can hurt morale and may not serve any business purpose.  But when “political matters” are defined to include both proposed legislation or regulations – which often do pertain quite directly to business issues – and arguably more innocuous or even desirable actions like “get out the vote” drives that are not specific to any one political party, employers need to undertake careful calculations to ensure their conduct is not deemed to run afoul of the free speech law.  Those employers who are uncertain how to proceed should consult with legal counsel.

By Tracey I. Levy

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4

August, 2022

Workplace Investigations: Video vs. In-Person Interviews

Prior to the pandemic, in-person interviews were generally considered the preferred method of conducting workplace investigations. They allowed the investigator to build rapport with the interviewee, the investigator could observe behaviors by the interviewee that might be relevant to credibility, and the investigator could know who was present for the interview and ensure a private meeting.  But in March 2020, that all had to change.  My Cornell colleagues and I wrote an article at that time, assessing the opportunities that videoconferencing offered as a virtual alternative to in-person interviews and identifying the caveats and precautions for which the investigator should be prepared.

Nearly two and a half years later, while employees have returned to their workplaces to varying degrees, I continue to conduct virtually all my workplace investigations by videoconference. Yes, it saves me a commute, but I actually like getting out into the world with people and I care deeply about ensuring the integrity of my investigations, so saving the commute would not suffice if it compromised my quality standards. Rather, over the period that remote interviews were the only viable option, I have come to appreciate some enduring advantages that they offer over in-person interviews.

Ensuring Privacy

Pre-COVID, one of the greatest challenges I faced when conducting in-person interviews was in securing a private location for those meetings. Most workplaces have shifted to glass-walled offices and conference rooms, many with little or no shading to afford visual privacy. I would strategically situate myself so that I faced outward, and only the interviewee’s back would be visible to passers by, but that afforded only a limited degree of anonymity. I would request to use a conference room or office that was off the beaten path, or at least in a different location than the coworkers of the people I would be interviewing – with mixed success.

For one investigation, I visited nearly every coffee house in a five-town radius of the client’s office.  No interviewee felt comfortable that the office could afford privacy and each had a different idea, in relation to their own hometown, as to where our presence would go unnoticed.  Investigation interviews can be conducted successfully in a coffee house or similar public space, but it requires the right mix of variables – other people conversing, so that my interview will not be a prominent sound in the space; a table spaced far enough from others such that it will be difficult for the people closest to us to eavesdrop; and frequent turnover or activity so that if we lingered longer it would not be noticed.

Videoconferencing spares me most of those logistical challenges. With the caveat that my interviews are generally conducted in areas where wifi access is abundant, I have extremely rarely had to shift from video to audio only interviews. Even employees who do not have a laptop or tablet are able to meet through their smartphone. The challenge with videoconferencing is that you never know who may be offscreen, just as you never know if your conversation is being recorded, so confirming the person is in a private place to speak sets a baseline expectation.

Keeping Everyone Safe

Videoconferencing offers the ultimate assurance of social distancing. While we may have moved past the worst of the pandemic, the need to quarantine or isolate due to exposure to COVID-19 can still arise at any time, and side-line plans for in-person meetings.

Videoconferencing also reassures all parties against exposure to other infectious diseases and milder ailments.  Years ago, when I was conducting investigations internally as an Employee Relations specialist, I once came to work while fighting a bad head cold so I could proceed with the scheduled interview of the respondent, a relatively senior manager who had a very busy schedule. After the interview, I received feedback from the HR Business Partner that the respondent complained I had been sneezing throughout our meeting. Rather than being  appreciated for my perseverance and commitment, I had made the manager uncomfortable by my physical presence. It was an interview that I should have postponed, or taken from the safer distance of a video screen.

More recently, I met in person to interview the respondent for a particularly sensitive matter.  Having just recovered from COVID-19 and completed my 10 days of isolation, I was feeling unusually secure about meeting in-person.  The day after the interview, I developed symptoms and tested positive for a rebound of COVID, and was put in the uncomfortable position of having to reach out to the respondent and others who had been present for that interview to advise them of their possible exposure.  Meeting by videoconference ensures that the investigator, the interviewee, and any third-party representatives are all safe from infection.

Moving Things Along

One of the other benefits of videoconferencing is that it enables speedier coordination of meetings.  Scheduling time to meet with individuals who travel frequently or work in multiple locations is much simpler when they can join via videoconference from virtually anywhere.

Making Exceptions

Notwithstanding these benefits, there still are times when videoconferencing may not be an ideal option. In particular, videoconferencing makes it slightly more challenging to build rapport and make the interviewee comfortable enough to provide the investigator with responsive information.  For that reason, when conducting interviews of individuals who report having experienced traumatic situations, such as sexual assault, in which building and maintaining that rapport and comfort is essential, the benefits of meeting in-person may outweigh the challenges.

There is no one right way to conduct workplace investigation interviews, provided there is a considered process behind decisions that are made.  Videoconferencing offers advantages, and my old bias toward in-person interviews has given way to a new reality.

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In this Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

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