Employment Cases from the Trenches:
Enhancing Diversity,
Avoiding Bias Claims,
Maintaining Privilege,
Conducting Investiga...
6/5/2015
AGENDA
1. Enhancing Diversity: Background, Statistics, Best Practices
2. Avoiding Bias Claims: Cases and Practice...
Elimination of Bias - What Is Bias?
• Bias: a prejudice or preconception that prevents
objective consideration or evaluati...
Why Diversity / Inclusion Matters
1. Diversity adds business value
2. Greater talent pool
3. Retention of talent
4. Reduct...
Why Diversity / Inclusion Matters
Bad Scenario
In-house counsel filed gender discrimination class action lawsuit
• Worked ...
Why Diversity / Inclusion Matters
Good Scenario
National LGBT Bar Association “Out & Proud Corporate Counsel Award”
Award ...
Who is responsible for diversity / inclusion
• General Counsel
• Other In-House Counsel
• Diversity Officer or Chair
• Hum...
History of Gender Bias
• 1875: Wisconsin Chief Justice says that “the natural law destines
and qualifies the female sex fo...
Justice O’Connor
• Top graduate of Stanford Law School
in 1952
• A large California firm offered her only
a secretarial po...
Justice Ginsburg
• Top graduate of Columbia Law
School in 1959
• She did not receive a job offer
from any New York law fir...
History of Racial Bias
• 1865: First African-American admitted to practice before U.S.
Supreme Court
• 1948: U.S. Supreme ...
Justice Marshall
• Great-grandson of a slave
• Denied admission to the University of
Maryland Law School because he was
Af...
Justice Sotomayor
• In 1978, Firm of Shaw, Pittman, Potts &
Trowbridge suggested during recruiting
dinner she was at Yale ...
Statistics - Elimination of Bias
6/5/2015
0
10
20
30
40
50
60
70
80
90
100
White Black Hispanic Asian Pacific
American
200...
Statistics - Elimination of Bias
• WOMEN IN THE LEGAL PROFESSION
6/5/2015
[Source: American Bar Association Commission on ...
Statistics - Elimination of Bias
• WOMEN: FORTUNE 500 GENERAL COUNSEL
6/5/2015
[Source: American Bar Association Commissio...
Statistics - Elimination of Bias
• WOMEN: FORTUNE 500 GENERAL COUNSEL
• ETHNIC COMPOSITION
6/5/2015
[Source: American Bar ...
Statistics - Elimination of Bias
• WOMEN: FORTUNE 501-1000 GENERAL
COUNSEL
6/5/2015
[Source: American Bar Association Comm...
Statistics - Elimination of Bias
• WOMEN: FORTUNE 501-1000 GENERAL COUNSEL
• ETHNIC COMPOSITION
6/5/2015
[Source: American...
Bias Surveys
Race, Disability, Gender, Sexual Orientation
• Race: 77% of minority attorneys reported racial bias in legal ...
Bias Surveys
Race, Disability, Gender, Sexual Orientation
• Gender: 73% of female attorneys reported gender bias in legal ...
10 Best Practices for
Corporate Law Departments
1. General Counsel is committed to diversity
• Demonstrates dedication thr...
10 Best Practices for
Corporate Law Departments
2. Interpret diversity very broadly
Include not only race and gender, but ...
10 Best Practices for
Corporate Law Departments
3. Metrics to measure progress
• Plan is implemented by a diversity commit...
10 Best Practices for
Corporate Law Departments
4. Innovative recruiting techniques
• Announce all open positions – via In...
10 Best Practices for
Corporate Law Departments
5. Focused retention efforts to reduce attrition
• Establish formal mentor...
10 Best Practices for
Corporate Law Departments
6. Key promotion and career development opportunities
• Review / formalize...
10 Best Practices for
Corporate Law Departments
7. Tie compensation to diversity objectives
• Percentage of compensation t...
10 Best Practices for
Corporate Law Departments
8. Influence diversity in outside law firms
• By requesting and measuring ...
10 Best Practices for
Corporate Law Departments
9. Sponsor / invest in “pipeline” programs
• Programs aimed at helping dev...
10 Best Practices for
Corporate Law Departments
10. Network with other organizations that share the company’s
diversity va...
Resources for
Corporate Legal Departments
Association of Corporate Counsel (ACC)
• Corporate Legal Diversity Pipeline Prog...
Bibliography
1. American Bar Association Commission on Women, A Current Glance at Women
in the Law, July 2014
2. American ...
Verdicts: Cases From The Trenches
Lawsuits based on discrimination, including disability, race, sexual
harassment and othe...
Verdicts: Cases From The Trenches
• $8.5 million jury verdict for disability, pregnancy discrimination and
wrongful termin...
The EEOC: Cases From The Trenches
• United States Equal Employment Opportunity Commission has gotten
increasingly aggressi...
Avoiding Bias Claims: Cases From The Trenches
•Disability Claims Increasingly Common
• Almost anyone can claim a disabilit...
Avoiding Bias Claims: Cases From The Trenches
•Case Study: Victory on Summary Judgment
• Employer notified employee unable...
Avoiding Bias Claims: Cases From The Trenches
• Case Study: Bringing Doberman to Work
• Professional on payroll of tempora...
Avoiding Bias Claims: Cases From The Trenches
•Case Study: Misclassification as Contractor
• Non-compliance with wage and ...
Avoiding Bias Claims: Cases From The Trenches
•Case Study: Misclassification as Contractor
• Employee went out on extended...
Avoiding Bias Claims: Cases From The Trenches
•Sexual harassment
• Discrimination claims often threefold:
discrimination, ...
Avoiding Bias Claims: Practice Tips
•Know the highly complex legal framework
• Is the employee in a protected class?
• His...
Avoiding Bias Claims: Practice Tips
•Serious illness (employee, family), disability
• 3 months of family and medical leave...
Avoiding Bias Claims: Practice Tips
•Hiring documentation often provides clues
that later employee problems will occur
•Us...
Avoiding Bias Claims: Practice Tips
• Discipline for performance problems as such
problems arise
• Employees make "preempt...
Avoiding Bias Claims: Practice Tips
•Be strategic about terminations
•Conduct thorough, documented investigation
before te...
Avoiding Bias Claims: Practice Tips
•Review/monitor wage and hour practices
• Problems here lead to other claims, too.
• I...
Avoiding Bias Claims: Practice Tips
•Use attorney-client privilege to protect
communications
•Is your in-house role in the...
Attorney-Client Privilege—What is it?
The attorney-client privilege protects:
• Communications,
• between the attorney and...
Attorney-Client Privilege—Who is the Client?
• The privilege applies when the client is a corporation.
Upjohn Co. v. Unite...
Beneficial Dual Representations?
• Should counsel represent both the corporation and one or more of its
officers, director...
What Communications are Privileged?
“Confidential” (Cal. Evid. Code § 952)
• Communication must be made in confidence: as ...
When Does the Privilege Attach?
 Generally, privilege only attaches when attorney is giving legal advice.
 There is no p...
Who Can Assert and Waive the Privilege?
• The power to waive corporate attorney-client privilege rests with the
corporatio...
Exceptions to Attorney-Client Privilege
Crime-Fraud Exception
• If advice is sought in order to aid someone to commit or p...
Exceptions to Attorney-Client Privilege
Joint Representation
• Privilege does not apply when communications are made to an...
How is Attorney-Client Privilege Destroyed?
The privilege attaches but is lost-
• Privilege can be destroyed:
• Third part...
Investigation of Harassment
and Other Misconduct
• Develop strategy
• Maintain privilege
• Conduct interviews
• Review doc...
Develop Strategy
• Identify investigator(s)
• Determine whom to interview
• Determine order of interviews
• Decide what do...
Maintain Privilege
• Internal documents/emails
not privileged
• Use of word “confidential”:
no privilege
• Use lawyer to p...
Conduct Interviews
• Interviews provide facts for conclusions about
what occurred and action to take
• Facts to determine ...
Conduct Interviews (cont.)
• The Incidents
• When, where, and how each incident
occurred
• Context of incidents and what w...
Review Documents
• Personnel files of relevant parties
• Electronic communications
• Business records
• Documents of third...
How to Elicit Information in
Orderly and Logical Way
•Chronology
•Chronology
•Chronology
6/5/2015 65
Questions for Complainant
• Complainant can be co-worker (e.g., harassment) or
supervisor (e.g., dishonest conduct, such a...
Other Interviews: Witnesses and the
Accused
• Determine other witnesses
• Decide whether to interview other witnesses befo...
Electronic Communications
in the Workplace
• Electronic communications (including emails) belong to
employer per written p...
Recommendations to the Prudent:
Emails, Voicemails
• If you would not write it in a memorandum, don’t write it
in an email...
Prepare Notes/Reports
• Undocumented investigation may later seem
like no investigation at all
• Memory is best just after...
Investigation Report
• Complaint or other event prompting
investigation
• Matters investigated, dates of investigation,
st...
Assessment of Discipline
• Effect of employer policies/practices
• Employee’s status and how affects decision as to level
...
Document Results
• Investigatory Notes
• Investigative Report/Conclusions
• Documentation to accused of discipline
imposed...
What do businesses see as the top 3 challenges of cross-border
investigations?
1. Privacy or information issues (46%)
2. L...
• Who conducts the interview?: Role of local
counsel, US counsel, and HR
• Attorney as interviewer: percipient witness,
et...
• Limited application outside the United States.
• Privilege versus principles of confidentiality
• May apply only to coun...
• Coordination between Human Resources, employment counsel, and
compliance employees
• Investigation of whistleblower comp...
Thank You!
We are very interested in your feedback -
please take a moment to leave a note about this class and
presenter(s...
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Employment Cases From the Trenches: Enhancing Diversity, Avoiding Bias Claims, Maintaining Privilege, Conducting Investigations

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The day-to-day activities of in-house counsel, in
their dual roles as legal advisors and company
managers, pose a broad range of employmentrelated
challenges. These include achieving a diverse
and ethical workplace, responding to complaints,
overseeing investigations and managing litigation.
This program will address common challenges in the
arena of employment law faced by in-house counsel
and share practice tips to avoid legal liability.

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Employment Cases From the Trenches: Enhancing Diversity, Avoiding Bias Claims, Maintaining Privilege, Conducting Investigations

  1. 1. Employment Cases from the Trenches: Enhancing Diversity, Avoiding Bias Claims, Maintaining Privilege, Conducting Investigations. Sandra McCandless Partner Dentons San Francisco / Silicon Valley +1 415.882.2412 sandra.mccandless@dentons.com CLE Seminar for In-House Counsel June 5, 2015 Chicago, Illinois
  2. 2. 6/5/2015 AGENDA 1. Enhancing Diversity: Background, Statistics, Best Practices 2. Avoiding Bias Claims: Cases and Practice Tips 3. Maintaining Privilege 4. Conducting Investigations 2
  3. 3. Elimination of Bias - What Is Bias? • Bias: a prejudice or preconception that prevents objective consideration or evaluation • Bias: many forms and arises in many employment situations • Bias: exists in dealing with subordinate or co-worker • Bias: can occur in relationship with client, opposing counsel or judiciary 6/5/2015 3
  4. 4. Why Diversity / Inclusion Matters 1. Diversity adds business value 2. Greater talent pool 3. Retention of talent 4. Reduction of legal risks 5. Positive reputation 6/5/2015 4
  5. 5. Why Diversity / Inclusion Matters Bad Scenario In-house counsel filed gender discrimination class action lawsuit • Worked in legal department for 13 years • Promoted to GC of Division in 2005 until later demoted • Sought $500 million in damages for class • Claimed more than 1,000 female lawyers and executives were subjected to “systemic, companywide discriminatory treatment” – including lower pay and fewer promotions • Claimed number of women in officer and senior executive positions was stagnant • Lawsuit settled; employee no longer with company 6/5/2015 5
  6. 6. Why Diversity / Inclusion Matters Good Scenario National LGBT Bar Association “Out & Proud Corporate Counsel Award” Award given for promoting LGBT equality through words and actions to create more secure and welcoming workplaces • Prudential • Google • McKesson • Wells Fargo • Allstate Insurance Company 6/5/2015 6
  7. 7. Who is responsible for diversity / inclusion • General Counsel • Other In-House Counsel • Diversity Officer or Chair • Human Resources Director • Compliance Officer • All Employees 6/5/2015 7
  8. 8. History of Gender Bias • 1875: Wisconsin Chief Justice says that “the natural law destines and qualifies the female sex for the bearing and nurture of children of our race and for the custody of the homes of the world…” • 1879: First woman admitted to practice before United States Supreme Court • 1944: U.S. Supreme Court accepts first female law clerk (for Justice Douglas) • 1960: Only approximately 3% of attorneys are female • 1996: American Bar Association elects first female president 6/5/2015 8
  9. 9. Justice O’Connor • Top graduate of Stanford Law School in 1952 • A large California firm offered her only a secretarial position • She refused the job and instead took a job as a deputy county attorney 6/5/2015 9
  10. 10. Justice Ginsburg • Top graduate of Columbia Law School in 1959 • She did not receive a job offer from any New York law firm • Some law firms said she should apply to work as a secretary 6/5/2015 10
  11. 11. History of Racial Bias • 1865: First African-American admitted to practice before U.S. Supreme Court • 1948: U.S. Supreme Court accepts first African-American law clerk (for Justice Frankfurter) • 1961: Reynaldo Guerra Garza is first Hispanic-American to be appointed to the Federal Bench (Southern District of Texas) • 1971: Herbert Young Cho Choy is first Asian-American (Korean- American) to be appointed to the Federal Bench (9th Circuit) • 2002: ABA elects first African-American president 6/5/2015 11
  12. 12. Justice Marshall • Great-grandson of a slave • Denied admission to the University of Maryland Law School because he was African-American • Attended Howard University Law School and graduated first in his class in 1933 • First African-American Justice appointed to U.S. Supreme Court (1967) 6/5/2015 12
  13. 13. Justice Sotomayor • In 1978, Firm of Shaw, Pittman, Potts & Trowbridge suggested during recruiting dinner she was at Yale only as a result of affirmative action • Formal complaint filed with law school • Firm’s apology in December of 1978 made news in the Washington Post • First Hispanic Justice appointed to U.S. Supreme Court (2009) 6/5/2015 13
  14. 14. Statistics - Elimination of Bias 6/5/2015 0 10 20 30 40 50 60 70 80 90 100 White Black Hispanic Asian Pacific American 2000 2010 LAWYER DEMOGRAPHICS: RACE / ETHNICITY % [Source: American Bar Association, Lawyer Demographics (2000, 2010 U.S. Census, Bureau of the Census)] 14
  15. 15. Statistics - Elimination of Bias • WOMEN IN THE LEGAL PROFESSION 6/5/2015 [Source: American Bar Association Commission on Women, A Current Glance at Women in the Law, July 2014 (American Bar Association Market Research Department, April 2013)] Women, 34% Men, 66% Women Men 15
  16. 16. Statistics - Elimination of Bias • WOMEN: FORTUNE 500 GENERAL COUNSEL 6/5/2015 [Source: American Bar Association Commission on Women, A Current Glance at Women in the Law, July 2014 (MCCA's 14th Annual General Counsel Survey: The Continuing Climb: Diverse GCs Power Up. Minority Corporate Counsel Association, September/October 2013)]] Women, 21.0% Men, 79.0% WOMEN IN CORPORATIONS 16
  17. 17. Statistics - Elimination of Bias • WOMEN: FORTUNE 500 GENERAL COUNSEL • ETHNIC COMPOSITION 6/5/2015 [Source: American Bar Association Commission on Women, A Current Glance at Women in the Law, July 2014 (MCCA's 14th Annual General Counsel Survey: The Continuing Climb: Diverse GCs Power Up. Minority Corporate Counsel Association, September/October 2013)] 10% 2% 0% 82% 6% Caucasian African American Hispanic Asian American/Pacific Islander Middle Eastern WOMEN IN CORPORATIONS 17
  18. 18. Statistics - Elimination of Bias • WOMEN: FORTUNE 501-1000 GENERAL COUNSEL 6/5/2015 [Source: American Bar Association Commission on Women, A Current Glance at Women in the Law, July 2014 (MCCA's 14th Annual General Counsel Survey: The Continuing Climb: Diverse GCs Power Up. Minority Corporate Counsel Association, September/October 2013)] Women, 16.8% Men, 83.2% WOMEN IN CORPORATIONS 18
  19. 19. Statistics - Elimination of Bias • WOMEN: FORTUNE 501-1000 GENERAL COUNSEL • ETHNIC COMPOSITION 6/5/2015 [Source: American Bar Association Commission on Women, A Current Glance at Women in the Law, July 2014 (MCCA's 14th Annual General Counsel Survey: The Continuing Climb: Diverse GCs Power Up. Minority Corporate Counsel Association, September/October 2013)] WOMEN IN CORPORATIONS 1.2% 0.0% 91.7% 7.1% 0.0% Caucasian African American Hispanic Asian American/Pacific Islander Middle Eastern 19
  20. 20. Bias Surveys Race, Disability, Gender, Sexual Orientation • Race: 77% of minority attorneys reported racial bias in legal workplaces as a major or moderate problem • Disability: 66% of disabled attorneys considered bias against attorneys with disabilities in legal workplaces to be a major or moderate problem • Sexual Orientation: 32% of GLBT attorneys agreed it was safe for GLBT attorneys to be open about their sexual orientation at work 6/5/2015 20
  21. 21. Bias Surveys Race, Disability, Gender, Sexual Orientation • Gender: 73% of female attorneys reported gender bias in legal workplaces as a major or moderate problem. Two examples of bias women agreed occurred most: 1. 70% stated comments are made about the physical appearance or apparel of female attorneys when no such comments are made about male attorneys 2. 69% stated they are asked if they are attorneys when male attorneys are not 6/5/2015 21
  22. 22. 10 Best Practices for Corporate Law Departments 1. General Counsel is committed to diversity • Demonstrates dedication through ongoing support and evaluation of internal and external diversity efforts • “For legal departments, the commitment of the general counsel is essential. It is clear that the higher up in the organization the commitment to diversity, the more pervasive it becomes throughout the organization.” 6/5/2015 22
  23. 23. 10 Best Practices for Corporate Law Departments 2. Interpret diversity very broadly Include not only race and gender, but also ethnicity/national origin, age group, sexual preference, veteran status, disabilities, parental status, lifestyle, and educational background 6/5/2015 23
  24. 24. 10 Best Practices for Corporate Law Departments 3. Metrics to measure progress • Plan is implemented by a diversity committee or task force comprised of members of the department • “Majority of law departments interviewed have developed some form of written ‘diversity action plan’ that includes diversity initiatives, goals, and metrics in key areas, such as staffing and outside spending” • “People who work in the legal field like structure and formality…They believe you are serious about it and more committed to it if you have it in writing. You also hold yourself more accountable if you have a written strategy and set written metrics.” (GC Gap, Inc.) 6/5/2015 24
  25. 25. 10 Best Practices for Corporate Law Departments 4. Innovative recruiting techniques • Announce all open positions – via Internet / on campus • Require internal / external recruiters to present diverse candidates • Establish policies for handling applications and standardize the interview process • Ask women and minorities in the department to play active roles 6/5/2015 25
  26. 26. 10 Best Practices for Corporate Law Departments 5. Focused retention efforts to reduce attrition • Establish formal mentorship programs • Provide networks of communication through committees / periodic meetings • Create an environment in which people want to stay • Feel secure and accepted • Included as part of the team • Have others like them in leadership positions as role models • Have mentors who are interested in their success 6/5/2015 26
  27. 27. 10 Best Practices for Corporate Law Departments 6. Key promotion and career development opportunities • Review / formalize promotion plan • Effective evaluation and promotion processes • Formal management training / development program • Increase opportunities for career development through rotational job assignments • Announce all promotional opportunities • Include those involved with equal employment opportunities (EEO) in all promotional processes 6/5/2015 27
  28. 28. 10 Best Practices for Corporate Law Departments 7. Tie compensation to diversity objectives • Percentage of compensation tied directly to diversity objectives and measurable results • Microsoft pays bonuses for outside counsel diversity – to both the firms / senior in-house attorneys who work with them 6/5/2015 28
  29. 29. 10 Best Practices for Corporate Law Departments 8. Influence diversity in outside law firms • By requesting and measuring diverse counsel representation on legal matters • By developing preferred partner relationships based in part on diversity progress of outside firms • “Measuring diversity of outside law firms was one of the most notable changes found in the latest research. Many legal departments view their dollars spent with outside firms as a major way to increase legal work done by minorities and women.” 6/5/2015 29
  30. 30. 10 Best Practices for Corporate Law Departments 9. Sponsor / invest in “pipeline” programs • Programs aimed at helping develop the career path for a greater number of diverse attorneys • Partner with selected law schools • Establish summer intern programs • Establish multicultural and achievement scholarships • Participate with local high schools (e.g., Career Day functions) 6/5/2015 30
  31. 31. 10 Best Practices for Corporate Law Departments 10. Network with other organizations that share the company’s diversity values • Minority bar associations and diverse business groups • Way to advance the diversity principles of the law department and cultivate a network of diverse lawyers for future internal hiring or outside counsel retention • “Many of those interviewed encourage staff not to just join, but to also become active members. Many noted that specific staff held leadership roles in these organizations and help direct the diversity initiatives of the organizations.” 6/5/2015 31
  32. 32. Resources for Corporate Legal Departments Association of Corporate Counsel (ACC) • Corporate Legal Diversity Pipeline Program • www.acca.com Minority Corporate Counsel Association (MCCA) • In-House Resources • www.mcca.com American Bar Association (ABA) • American Bar Association, Center for Racial and Ethnic Diversity • American Bar Association, Commission for Women in the Profession • www.abanet.org 6/5/2015 32
  33. 33. Bibliography 1. American Bar Association Commission on Women, A Current Glance at Women in the Law, July 2014 2. American Bar Association, Lawyer Demographics 3. MCCA's 14th Annual General Counsel Survey: The Continuing Climb: Diverse GCs Power Up. Minority Corporate Counsel Association, September/October 2013 4. The Lawyer Statistical Report, American Bar Foundation, 1985, 1994, 2004, 2012 editions 5. www.americanbar.org 6/5/2015 33
  34. 34. Verdicts: Cases From The Trenches Lawsuits based on discrimination, including disability, race, sexual harassment and other protected categories can lead to large verdicts • $26.1 million age discrimination verdict against Staples; employee fired for stealing a 68 cent bell pepper after expressing his plans to continue working for Staples until "he was physically able to." [22.8 million in punitive damages] • $21.7 million disability discrimination and wrongful termination verdict [$16.5 million in punitive damages] 6/5/2015 34
  35. 35. Verdicts: Cases From The Trenches • $8.5 million jury verdict for disability, pregnancy discrimination and wrongful termination; model terminated from The Price is Right after 8 years subsequent to pregnancy leave • $1.2 million jury verdict for wrongful termination based on sexual orientation • $1,050,000 jury verdict for sexual harassment; employee was fired due to "corporate downsizing" after complaining about sexual harassment by supervisor • Settlements for race, sex and disability discrimination claims often range between $300,000 - $1,000,000 6/5/2015 35
  36. 36. The EEOC: Cases From The Trenches • United States Equal Employment Opportunity Commission has gotten increasingly aggressive • EEOC has taken new legal positions against employer policies • EEOC has refused to cease its processing of charges even when employee and employer have reached settlement • EEOC uses one charge as basis for broad investigation • In the past, it was easy to "beat" an EEOC charge and avoid litigation; that EEOC approach could become "history" • Avoidance of litigation/agency investigation should be at the forefront 6/5/2015 36
  37. 37. Avoiding Bias Claims: Cases From The Trenches •Disability Claims Increasingly Common • Almost anyone can claim a disability or serious illness •Legal Department/HR/management must know/how to spot issues • Interplay between ADA/FMLA/IHRA • Supervisor with lack of knowledge can get employer in trouble which becomes hard to fix 6/5/2015 37
  38. 38. Avoiding Bias Claims: Cases From The Trenches •Case Study: Victory on Summary Judgment • Employer notified employee unable to keep her position open beyond six months: undue hardship • Dentons assisted with termination letter • Case filed in state court: large verdicts common • Removed to federal court: fraudulent joinder of individual defendants; won remand motion • But victory in court is costly and time-consuming 6/5/2015 38
  39. 39. Avoiding Bias Claims: Cases From The Trenches • Case Study: Bringing Doberman to Work • Professional on payroll of temporary agency • Joint employment always more complicated • Employee requested accommodation: PTSD • Entity where work to be performed took month to allow accommodation; asked many questions • EEOC charge resolved at mediation where employee able to regain feeling of respect 6/5/2015 39
  40. 40. Avoiding Bias Claims: Cases From The Trenches •Case Study: Misclassification as Contractor • Non-compliance with wage and hour laws can lead to multiple legal issues (not just class actions) • "Problem" individual hired as contractor • Poor performance • Claimed disability/demanded medical insurance • Employer had to "hire" him to avoid becoming self- insurer of his medical problems 6/5/2015 40
  41. 41. Avoiding Bias Claims: Cases From The Trenches •Case Study: Misclassification as Contractor • Employee went out on extended leave • Employee status at that time minimized problems • Counsel consulted to obtain back pay for overtime performed during contractor period • Counsel filed federal wage and hour claim and, stating that state court provided bigger damages, filed state discrimination case to inflate case value 6/5/2015 41
  42. 42. Avoiding Bias Claims: Cases From The Trenches •Sexual harassment • Discrimination claims often threefold: discrimination, harassment, retaliation • Retaliation claims most difficult to defend • Most common claims involve off premises conduct • General Counsel who listened to employees' exploits • Supervisor who drank with employee, then made "pass" • "Favoritism" when supervisor/employee "too close" 6/5/2015 42
  43. 43. Avoiding Bias Claims: Practice Tips •Know the highly complex legal framework • Is the employee in a protected class? • Historical: sex, race, national origin, age • Today: disability, family leave, LGBT, veteran • Disability, family care: ADA, FMLA, IHRA, laws of other states/localities, workers' compensation • New: state and local sick leave laws, Fair Chance Ordinances (criminal records) 6/5/2015 43
  44. 44. Avoiding Bias Claims: Practice Tips •Serious illness (employee, family), disability • 3 months of family and medical leave does not allow subsequent termination • Extended leave: reasonable accommodation • Many requests now to work at home • When does leave become so indefinite that it allows termination? • Undue hardship defense 6/5/2015 44
  45. 45. Avoiding Bias Claims: Practice Tips •Hiring documentation often provides clues that later employee problems will occur •Use employment applications •Review resumes carefully •Use multiple interviewers 6/5/2015 45
  46. 46. Avoiding Bias Claims: Practice Tips • Discipline for performance problems as such problems arise • Employees make "preemptive" employment claims • Once claim is made, later discipline leads to retaliation claim • Documentation should be direct, objective specific • Appraisals should be accurate • Termination letters with details recommended 6/5/2015 46
  47. 47. Avoiding Bias Claims: Practice Tips •Be strategic about terminations •Conduct thorough, documented investigation before termination for misconduct •Categorize as position elimination or termination: employer honesty is key •Decide whether or not to provide separation pay/use release agreement 6/5/2015 47
  48. 48. Avoiding Bias Claims: Practice Tips •Review/monitor wage and hour practices • Problems here lead to other claims, too. • Is classification as exempt correct? • On what exemption(s) are you relying? • Is time properly recorded for non-exempts? • Are "contractors" working without employer "right to control" ("running own business")? 6/5/2015 48
  49. 49. Avoiding Bias Claims: Practice Tips •Use attorney-client privilege to protect communications •Is your in-house role in the matter as manager or as counsel; do you intend to assert privilege? •Be mindful of possibility of electronic discovery •Be sure your managers avoid "smoking gun" electronic communications •Managers, too, need training to spot issues 6/5/2015 49
  50. 50. Attorney-Client Privilege—What is it? The attorney-client privilege protects: • Communications, • between the attorney and client, • made in confidence, • when the lawyer is acting in his capacity as a legal advisor, • and legal advice of any kind is sought, • unless waived. 6/5/2015 50
  51. 51. Attorney-Client Privilege—Who is the Client? • The privilege applies when the client is a corporation. Upjohn Co. v. United States, 449 U.S. 383, 390 (1981). • Model Rule of Professional Conduct 1.13: “A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” [Adopted by Iowa, Kansas, Missouri, North and South Dakota, Michigan and Illinois.] 6/5/2015 51
  52. 52. Beneficial Dual Representations? • Should counsel represent both the corporation and one or more of its officers, directors, or employees? • Can save the cost of hiring outside counsel. • Can keep control of the matter within the corporation. • Allowed subject to the provisions of applicable Rules of Professional Responsibility. • But detailed analysis must occur. • Is there current adversity? • If not, will there be adversity later? 6/5/2015 52
  53. 53. What Communications are Privileged? “Confidential” (Cal. Evid. Code § 952) • Communication must be made in confidence: as far as the client is aware, the communication is not disclosed to any third party other than those who are reasonably necessary for the transmission of the information. • The attorney-client privilege may extend “to communications with third parties who have been engaged to assist the attorney in providing legal services.” • U.S. v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). • However, the third party must be assisting and reporting to the attorney. • Example: When an investigator was retained by an attorney to discover details of a marijuana growing operation, conversations with the client were not privileged when the client told the investigator not to relay the conversation to the attorney. • U.S. v. Haynes, 216 F.3d 789, 798 (9th Cir. 2000). • May extend to communications between non-lawyers within corporation if includes advice received from in-house counsel. [Missouri Trial Court Decisions.] 6/5/2015 53
  54. 54. When Does the Privilege Attach?  Generally, privilege only attaches when attorney is giving legal advice.  There is no privilege when the attorney is engaged in non-legal work like rendering business advice or performing human resources functions.  If legal advice is only incidental to a discussion of business policy, the communication may not be protected.  There is no exact moment privilege attaches. It is a balancing of the reasons for the communications and the advice given.  This is a very significant E-Discovery issue for in-house counsel. 6/5/2015 54
  55. 55. Who Can Assert and Waive the Privilege? • The power to waive corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985). • The privilege stays with the corporation, not the managers. • Displaced managers cannot assert the attorney-client privilege, and new management can waive the privilege with respect to communications made by former officers and directors. 6/5/2015 55
  56. 56. Exceptions to Attorney-Client Privilege Crime-Fraud Exception • If advice is sought in order to aid someone to commit or plan to commit a crime or fraud; or • If the attorney reasonably believes that disclosure of the information is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death or substantial bodily harm to an individual. 6/5/2015 56
  57. 57. Exceptions to Attorney-Client Privilege Joint Representation • Privilege does not apply when communications are made to an attorney by joint clients regarding a matter of common interest (e.g. employment dispute) where the matter of common interest later becomes the subject of an action between the joint clients. 6/5/2015 57
  58. 58. How is Attorney-Client Privilege Destroyed? The privilege attaches but is lost- • Privilege can be destroyed: • Third parties are present during conversations. • Later disclosure of confidential information to third parties. • Giving non-legal (business) advice. • Email—Be careful who you cc and bcc! • An initial email with an attorney may be privileged. Forwarding email to people not included in the attorney-client relationship destroys the privilege. • Who retains consultants/agents and for what purpose (clear representation) 6/5/2015 58
  59. 59. Investigation of Harassment and Other Misconduct • Develop strategy • Maintain privilege • Conduct interviews • Review documents • Prepare reports • Assess Discipline • Document results • Follow Up
  60. 60. Develop Strategy • Identify investigator(s) • Determine whom to interview • Determine order of interviews • Decide what documents to review • Plan for note-taking • Maximize confidentiality • How to deal with the accused in interim 6/5/2015 60
  61. 61. Maintain Privilege • Internal documents/emails not privileged • Use of word “confidential”: no privilege • Use lawyer to protect drafts • Use phrase “attorney- client privileged”
  62. 62. Conduct Interviews • Interviews provide facts for conclusions about what occurred and action to take • Facts to determine include: • The People • How came to employer attention • Identity of accusor(s), accused, key witnesses • Work history of those involved • Reporting, work, and personal relationships 6/5/2015 62
  63. 63. Conduct Interviews (cont.) • The Incidents • When, where, and how each incident occurred • Context of incidents and what was said or done • As to harassment, what occurred to suggest conduct welcome or unwelcome • Identity of other witnesses • Chronology of key events 6/5/2015 63
  64. 64. Review Documents • Personnel files of relevant parties • Electronic communications • Business records • Documents of third parties, such as clients 6/5/2015 64
  65. 65. How to Elicit Information in Orderly and Logical Way •Chronology •Chronology •Chronology 6/5/2015 65
  66. 66. Questions for Complainant • Complainant can be co-worker (e.g., harassment) or supervisor (e.g., dishonest conduct, such as theft) • Prepare to take contemporaneous detailed notes (as with all witnesses) • Elicit facts in who, what, why, when, where format • Obtain complete and specific list of acts, statements, documents forming basis of complaint • Review complainant’s documentation, if any • Do not promise absolute confidentiality 6/5/2015 66
  67. 67. Other Interviews: Witnesses and the Accused • Determine other witnesses • Decide whether to interview other witnesses before accused party • May need to suspend accused pending investigation • Do not suggest “guilt” to third parties • Conduct of interview of accused depends upon nature of complaint (harassment where interviews are critical v. embezzlement where documents may be key) • Have a detailed strategy for interview of the accused; open-ended questions may be best; elicit specific answers 6/5/2015 67
  68. 68. Electronic Communications in the Workplace • Electronic communications (including emails) belong to employer per written policy • Electronic communications: sword/shield • “Deletion” does not mean disappearance • Best record of what happened: what was written or said at the time • Electronic communications are “discoverable” • Supervisor emails/voicemails often used against employer in litigation • Employers use emails/voicemails as a defense 6/5/2015 68
  69. 69. Recommendations to the Prudent: Emails, Voicemails • If you would not write it in a memorandum, don’t write it in an email or say it in a voicemail • How would you look in the newspaper if it were published? • Keep records just as you would with letters, memoranda • Treat emails, voicemails about employees as if they were “personnel documents” • “Confidential” communications are best delivered in person over the telephone 6/5/2015 69
  70. 70. Prepare Notes/Reports • Undocumented investigation may later seem like no investigation at all • Memory is best just after interviews • Notes/reports prepared with review by outside third parties/litigation in mind’ • Can use drafts and revise as time allows • Whether or not to have written statements provided 6/5/2015 70
  71. 71. Investigation Report • Complaint or other event prompting investigation • Matters investigated, dates of investigation, steps taken • Critical information • Credibility determinations • Action taken and to be taken • Recommendations (appropriate level of discipline/no discipline and why) 6/5/2015 71
  72. 72. Assessment of Discipline • Effect of employer policies/practices • Employee’s status and how affects decision as to level of discipline • Severity and frequency of any misconduct • Type of misconduct (negligence v. intentional) • Any prior counseling/discipline • Whether or not accused lied • Expressions of attitude (apologetic v. defiant) • Length of employment and past record • Employer past practice • Remedy sought by complaint, where appropriate 6/5/2015 72
  73. 73. Document Results • Investigatory Notes • Investigative Report/Conclusions • Documentation to accused of discipline imposed • Documentation to complainant(s) • Decisions as to placement of notes/reports in personnel and investigatory files • Response to any later request by accused for personnel file 6/5/2015 73
  74. 74. What do businesses see as the top 3 challenges of cross-border investigations? 1. Privacy or information issues (46%) 2. Lack of internal investigation resources (42%) 3. Cultural differences (37%) 4. Legal or regulatory environment (35%) 5. Language differences (32%) (KPMG Survey on Cross-Border Investigations 2013) Challenges of Cross-Border Investigations 6/5/2015 74
  75. 75. • Who conducts the interview?: Role of local counsel, US counsel, and HR • Attorney as interviewer: percipient witness, ethical issues overseas? • What if employee has retained counsel? • Other worker representatives? • Hindrance on discipline? • Cultural differences, litigation-style questioning • Interpreters, cultural liaisons • Sharing results with whistleblower, attorney, or representative? Interviewing the Whistleblower: Cross-Border Scenario 6/5/2015 75
  76. 76. • Limited application outside the United States. • Privilege versus principles of confidentiality • May apply only to counsel; may not protect client • On the other hand: strict confidentiality protections overseas may conflict with US discovery Attorney-Client Privilege: Cross-Border Scenario 6/5/2015 76
  77. 77. • Coordination between Human Resources, employment counsel, and compliance employees • Investigation of whistleblower complaint versus investigation of claims of underlying wrongdoing • Risk of compromising legal position • Risk of establishing lack of effective compliance practices by showing employee committed wrongdoing • Risk of jeopardizing employer’s ability to discipline employee depending on nature of investigation. • Risk of one hand not knowing what the other is doing • Risk of not sharing information in pursuing goal of not “tainting” the respective investigations Other Internal Corporate Issues: Investigations ─ Roles of HR and Compliance 6/5/2015 77
  78. 78. Thank You! We are very interested in your feedback - please take a moment to leave a note about this class and presenter(s) on the back side of your evaluation form. © 2015 Dentons. Dentons is an international legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Please see dentons.com for Legal Notices. Sandra McCandless Partner Dentons San Francisco / Silicon Valley +1 415.882.2412 sandra.mccandless@dentons.com dentons.com

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