News & Analysis as of

Updated EEOC Retaliation Guidance Suggests Scrutiny for Internal Investigation Practices

The Equal Employment Opportunity Commission takes an expansive position on protection given to persons who make internal complaints about discrimination in bad faith in updated guidance on retaliation law....more

Fifth Circuit Decision Reinforces The Importance of Clearly Communicating Anti-Harassment Policies

A well-drafted anti-sexual harassment policy and complaint procedure can provide useful defenses for employers defending against claims of sexual harassment. However, a recent decision from the Fifth Circuit should remind...more

HR to the Rescue: Prompt Investigation Beats EEOC’s Sex Harassment Claim

Don’t listen to all the doubters – HR truly can save the day. A recent federal court decision from the Western District of Tennessee illustrates the point again: prompt and appropriate investigation of a sexual...more

Personnel Investigation By Outside Attorney Protected From Disclosure In Discovery

Seyfarth Synopsis: California Court of Appeal holds that (1) an outside attorney’s investigation can be privileged even though the attorney simply investigated facts, and (2) the employer does not waive the privilege simply...more

Fifth Circuit Rejects EEOC's Position on Reasonable Belief Standard for Reactive Retaliation Claims

In 2009’s Crawford decision, the U.S. Supreme Court concluded that an employee who participates in an employer’s harassment or discrimination investigation as a third-party witness, falls within federal anti-retaliation...more

Dismissal Denied For Discussing Disability: EEOC Case Against Employer Survives

Anti-discrimination laws command that “thou shall not retaliate…” The recent ruling in EEOC v. Day & Zimmerman NPS, Inc., Case No. 15-CV-01416 (D. Conn Apr. 12, 2016), is a case study in how employers can be taken to task for...more

New Jersey Court Finds Employer Improperly Required Employee to Submit to Fitness-for-Duty Exam

The Superior Court of New Jersey, Appellate Division recently held, in a case of first impression, that the Americans with Disabilities Act (ADA) permits a New Jersey employer to require an employee to undergo a...more

New Year’s Resolution: Internal Investigation Tips For Retail Employers

The first time you learn of an employee’s complaint probably isn’t the day your company is served with a lawsuit. In most cases, the alleged victim complains to the company first. While an initial internal complaint provides...more

Want to keep your internal investigations confidential? There may yet be hope.

In a recent blog post, we discussed the heavy restrictions the National Labor Relations Board (the “NLRB” or the “Board”) has placed on company policies that direct employees who participate in internal investigations to...more

Ingles Solamente Reglas

English-only rules are not as common as they once were, but many employers still require employees to speak English only in the workplace. Justifications for these rules vary, but the Equal Employment Opportunity Commission...more

Wineries Often Overlook Harassment Liability

Harassment training is important in all workplaces, yet is often overlooked at wineries. However, wineries can be hotbeds for harassment suits. Originally published by the North Bay Business Journal. ...more

Board Overrules Longstanding Protections Against Disclosure of Witness Statements

Since 1978, the National Labor Relations Board (NLRB) has treated witness statements as exempt from an employer’s general duty to furnish information to unions under Section 8(a)(5) of the National Labor Relations Act (NLRA)....more

The Frustrating EEOC Conciliation Process

Employers are often frustrated when dealing with the Equal Employment Opportunities Commission (EEOC) regarding employee Charges of Discrimination. Many EEOC charges are legitimate and allow current or former employees an...more

SEC Joins Agency Attack on Confidentiality Clauses in Employee-Related Agreements and Policies

In a recent enforcement action, the Securities and Exchange Commission (SEC) took action against a company for "using improperly restrictive language in confidentiality agreements with the potential to stifle the...more

SEC Applies Whistleblower Protections to Confidentiality Arrangements

Public companies should review their confidentiality arrangements for any provisions that may result in unintended violations of the Dodd-Frank Act’s whistleblower protections....more

The SEC Joins the NLRB and EEOC in the Assault on Employee Confidentiality Agreements and Policies in Workplace Investigations

On April 1, 2015, the United States Securities and Exchange Commission (SEC) announced its first settlement of a whistleblower enforcement action against a company for using confidentiality agreements to stifle the...more

SEC Cracks Down on Agreement Requiring In-House Reporting of Fraud Complaint

The Securities and Exchange Commission (SEC) announced today that it had made good on its prior promises to take a hard look at employment agreements and policies that could be viewed as attempting to keep securities fraud...more

Employment Law Commentary - Volume 27, Issue January 2015: Landmines To Avoid In Conducting Workplace Investigations

With alarming regularity, employers find themselves in the unenviable position of having to investigate workplace complaints made by their employees. These complaints can range from informal allegations of harassment or...more

Conducting Workplace Investigations

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...more

NLRB Overrules Another Longstanding Precedent: Witness Statements No Longer Exempt From Disclosure

The precedents are falling fast. Last week the NLRB overruled the five decade old Bethlehem Steel decision, and now another longstanding precedent has fallen....more

Harassment In The Workplace: Dangerous Liaisons

In This Chapter: WORKPLACE HARASSMENT – WHY IT MATTERS - II. THE DEVELOPMENT OF WORKPLACE HARASSMENT IN THE UNITED STATES SUPREME COURT - III. HARASSMENT LAW IN THE FIFTH CIRCUIT AND TEXAS - A. Sexual...more

NLRB and EEOC May Target Employer Efforts to Keep Employees Quiet During Internal Investigations

A recent decision from the National Labor Relations Board (NLRB) and comments from an Equal Employment Opportunity Commission (EEOC) attorney reveal a risk in prohibiting employees from discussing ongoing internal...more

Silence is Not Golden - Employers Should Rethink Policies that Silence Employees During Internal Investigations

In light of a recent U.S. Equal Employment Opportunity Commission (“EEOC”) communication, employers should review their internal investigation policies to ensure that they do not completely silence employees. In an August 3,...more

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