Join me in a discussion on the increasingly nuanced landscape of employee workplace investigations and best practices in managing their effect on corporate brand, attorney-client privilege and obligations to applicable governmental entities.
2017 is in the books and 2018 is now upon us. A dramatic close to 2017 on Capitol Hill ushered in sweeping changes to the tax code that will begin to impact both employers and employees in a number of ways – some more immediately – from employers losing deductions for sexual harassment settlement payouts, to penalties for high nonprofit executive compensation, to tax deferral on exercise of stock options for public company executives, to employee benefit plans. Wage and leave-related issues are also likely to dominate in 2018, as more states (and employers on their own initiative) increase wage thresholds and broaden employee paid and unpaid leave entitlements (even for some smaller employers). Salary history bans, such as those already enacted in New York City, Massachusetts, and California, will continue to get traction in 2018 as more states and municipalities jump on that bandwagon. We also expect to continue to witness a significant shift in the NLRB’s enforcement policy and decision-making; the NLRB’s new General Counsel has already announced a number of changes that are sure to make employers sigh with relief. Also in 2018, employers could continue to face rising uncertainty with respect to health plans in the wake of the tax bill’s repeal of the individual mandate that was central to keeping health plans affordable under the Affordable Care Act. Finally, so that we can help keep you accountable to the five New Year’s resolutions we made for you over the holidays (that we know you were eager to adopt as your own), we have collected them for you here: (1) review and refresh your non-harassment policies and training; (2) update your leave policies; (3) make sure your job applications comply with new state ban-the-box laws and salary history inquiry bans; (4) assess the strength and enforceability of your post-employment covenants under changing state law; and (5) make sure your employee benefit plans are compliant.
Taking note of the #MeToo movement, Congress included a new provision in the tax code overhaul bill — Section 13307 – which is titled “Denial of Deduction for Settlements Subject to Nondisclosure Agreements Paid in Connection with Sexual Harassment or Sexual Abuse.” While the title of the section makes its purpose clear, the provision raises more questions than it answers.
It’s been a terrific run. A real Cinderella story. Who would have thought that a little blog out of the northeast region could make so much noise in the thought leadership world?! We learned a lot along the way and we hope you did too. While we celebrate by cutting down the (inter)net (or better yet, by removing the keys from our keyboard), here’s a quick recap of where we’ve been:
This past week, the D.C. Circuit Court of Appeals issued an important decision addressing two on-the-bubble workplace confidentiality policies – one which made the cut, while the other one made its way over to the legal equivalent of the NIT. The decision explored the boundaries of workplace directives related to the discussion of salary and employee discipline information and non-disclosure in investigations.
As excitement builds for the March Madness Final Four on Saturday and the championship game next Monday, another exciting event is also rapidly approaching – Mintz Levin’s Third Annual Employment Law Summit. And just as South Carolina, Gonzaga, Oregon and North Carolina have so far refused to go quietly from the NCAA tournament, one of the topics we’ll be covering is how to handle employees who resist efforts to manage their performance and conform their behavior to professional norms. This panel discussion will feature three superb guests moderated by Mintz Member Dick Block and promises to be a spirited and engaging event.
Harassment has long been an Achilles’ heel of the workplace. Believe it or not, like the NCAA’s tournament TV ratings, the number of harassment-related lawsuits has held rather steady since the 1990s! And like most NCAA tournament games, the workplace can often be fast-paced and exhilarating, but it requires participants to play by the rules and when conduct goes out of bounds, participants must be benched or even ejected. In this regard, an employer must ensure that it has (1) the right players-personnel; and (2) systems in place not just for a successful season here and there, but for sustainable success over time that allows it to compete for the championship year after year. So what does this look like?
My colleague Alta Ray, was quoted in a Business Insurance article entitled, Injury Records Rule May Lead to More Citations in which she provides steps for employers to avoid retaliation against employees who report workplace injuries. The article examines the new anti-retaliation provisions to the U.S. Occupational Safety and Health Administration’s electronic record-keeping rule and the challenges the provisions pose to employers.
The Fifth Circuit recently held that a third party witness who was fired after providing information in response to her employer’s investigation of a coworker’s harassment allegations had to demonstrate she had a “reasonable belief” that the conduct she reported violated Title VII in order to prove her retaliation claim.
Just last month, two federal district courts reached different conclusions, further contributing to the confusion as to whether notes taken during a Human Resources department investigation of a discrimination or harassment complaint are protected from disclosure in subsequent litigation. Continue Reading Are Your HR Investigation Notes Protected Against Disclosure? Maybe, Maybe Not.