Workplace Investigations

News & Analysis as of

Best Practices for Preventing Workplace Harassment Claims

A few weeks ago, the U.S. Equal Employment Opportunity Commission (EEOC) held its second public meeting in Los Angeles with a group of experts selected to serve on the EEOC’s Select Task Force on the Study of Harassment in...more

Update – New OSHA Maximum Penalty Amounts Become More Clear – October, 2015 CPI Released

As we mentioned in our previous blog, the bipartisan budget signed by President Obama on November 2, 2015 contains provisions that will allow OSHA to raise maximum penalties for the first time in 25 years. The maximum...more

It’s Time to Review and Update Safety and Compliance Regimens – OSHA Penalties Set to Surge in 2016

For the first time since 1990, the Occupational Safety and Health Administration (OSHA) has been authorized to increase its civil penalties. The provision was inserted into the expansive Bipartisan Budget Act of 2015, which...more

D.C. Circuit Upholds NLRB's Continued Targeting of Workplace Rules

The National Labor Relations Board (NLRB or the Board) has continued its trend of subjecting employer work rules to scrutiny as to whether they unlawfully restrict workers' rights to form or join labor organizations, bargain...more

Caution: Your Workplace Accident Investigation May Be Used Against You!

Last week, I posted about OSHA’s expected final rule on a public database of workplace injuries and illnesses. While that expected rule would require employers to submit their injury and illness records to OSHA electronically...more

Socially Aware: The Social Media Law Update Volume 6, Issue 4

Five social media law issues to discuss with your clients - The explosive growth of social media has clients facing legal questions that didn’t even exist a few short years ago. Helping your clients navigate this...more

Top 10 Workplace Investigation Mistakes: Part II

In part one of this two-part series, we covered five of the most common mistakes that employers make while conducting workplace investigations, including poor complaint mechanisms, ignoring employee complaints, failing to...more

OSHA Updates its Field Operations Manual

The Occupational Safety and Health Administration (OSHA) has just released a substantial update to its Field Operations Manual (FOM), CPL 02-00-159 (October 1, 2015). The FOM is a reference document for OSHA field personnel...more

Questions Remain About Social Media Privacy Rights During Workplace Investigations

Employees’ social media activities often play a key role in workplace investigations. For example, an employee may complain that a coworker sent a harassing Facebook message or posted something offensive on Twitter...more

Be Aware of Public Employees Disciplinary Proceedings Protections: Loudermill, Wiengarten and Garrity

This post is primarily for public sector employers such as state agencies, municipalities and districts. By virtue of being employed by the government and quite likely represented by a labor union, public sector employees in...more

Can Employers in the Fifth Circuit Be Liable for Retaliation Under Title VII When the Decision Maker Had No Retaliatory Motive?

In Zamora v. City of Houston, 14-20125 (Aug. 19, 2015), the Fifth Circuit joined the Sixth, Eighth, and Tenth Circuits in holding that the “cat’s paw” theory of causation can also be utilized in Title VII retaliation cases,...more

The Employment Law Authority - July/August 2015

A federal appellate court recently reinstated a lawsuit brought by a dining services employee who claimed that she was sexually harassed by a male coworker. According to the Sixth Circuit Court of Appeals, a reasonable jury...more

That is SO last week - September 2015

Labor Day was the backdrop for a big announcement from President Obama. Beginning in 2017, federal contractors must grant paid sick leave to employees. The new Executive Order requires contractors to provide one hour of...more

The NLRB's Assault on Employee Handbooks: Potentially Illegal Workplace Rules and Policies

Most employers and their legal counsel take pride in rules and policies that have become standard fare in the workplace. Employee Handbooks almost always contain, and certainly should contain, conspicuous provisions that...more

OSHA Updates Emphasis Program on Amputations – Cites Employer and Places It on Severe Violators List

Last week OSHA issued its updated National Emphasis Program on Amputations (NEP). Instruction CPL 03-00-019 (June 30, 2015). Take that juxtaposed against OSHA’s citation in a recent case where on his first day on the job a...more

That is SO last week - August 2015 #3

Last week, The New York Times reported on Amazon’s “bruising workplace” and described Amazon’s theory that “conflict brings about innovation.” According to the article, Amazon employees are encouraged to criticize each other,...more

MSHA Increases Scrutiny

If you operate or work at a metal/nonmetal mine be ready for significant changes on how the Mine Safety and Health Administration (MSHA) will enforce its workplace examination standards.The MSHA recently issued a policy...more

Think Fast: HR’s Prompt Investigation Key Factor in Sexual Harassment Case Win for Employer

A recent ruling from a Tennessee appeals court reinforces that a prompt and reasonable investigation can help save an employer from liability in response to sexual harassment charges....more

Lessons from Deflategate: 5 Ways to Avoid Workplace Investigation Fumbles

Over the years, the topic of workplace investigations has gained increasing importance in the HR and employment law world. Now, with investigations routinely making headlines, they have become a part of our popular culture as...more

MSHA Workplace Examination “Clarification” Places Enforcement Target Squarely on Operators

Over the years, the Mine Safety Health Administration (MSHA) has tried on two different occasions to overhaul the workplace examination standard at 30 CFR §56/57.18002 by issuing program policy letters. The agency’s primary...more

NLRB Removes Blanket Exemption on Mandatory Disclosure for Witness Statements. What’s an Employer To Do?

The NLRB recently reversed 37 years of precedent in deciding to adopt a new standard for a union’s access to witness statements taken in pre-grievance arbitration employer investigations. For years, under the blanket...more

Need To Investigate Employee Misconduct While the Employee is on FMLA Leave? Follow This Employer's Lead

Even once in awhile an employer has handled an FMLA situation so effectively, you just want to shout out, “You Go Girl!” . . . or let out a fist pump (like you just sank a 70-foot birdie) . . . or initiate a wild chest bump...more

The National Labor Relations Board Expands Union Access to Witness Statements

On June 26, 2015, in a split 3-2 decision, the National Labor Relations Board (Board), overturned the 37-year-old standard protecting the confidentiality of witness statements taken by employers during workplace...more

“Unpredictable and Potentially Messy”?: NLRB Ruling Could Complicate Employers’ Workplace Investigations

In its June 26 split decision in American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers- West, 362 N.L.R.B. No. 139 (Case No. 32-CA-063475) (“Piedmont...more

NLRB Overturns 37-Year Precedent Regarding Duty to Provide Witness Statements to Unions

On June 26, 2015, the National Labor Relations Board (NLRB) reversed its 37-year precedent, ruling in American Baptist Homes of the West, d/b/a Piedmont Gardens, that employers must disclose to unions confidential witness...more

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