The Goldstein Law Firm’s Fall 2009 Labor and Employment Seminar, Internal Investigations of Harassment
The Goldstein Law Firm
August 2009 Newsletter
“The Goldstein Law Firm’s Fall 2009 Labor and Employment Seminar, Internal Investigations of Harassment and/or other Unlawful Conduct, and Workplace Privacy”
By: Charles H. Goldstein, Esq.
The Goldstein Law Firm
1. Making Hard Employment Decisions to Survive the Great Recession and Prosper in the Great Recovery:
The Goldstein Law Firm, a nationally recognized labor and employment law firm, is hosting its 32ND Annual Labor and Employment Law Seminar and inviting each of its clients to spend a morning from 9 a.m. to noon on Wednesday, October 14, 2009, at the Cerritos Center for the Performing Arts with me. A continental breakfast will be provided at the Seminar.
I will present my unique insights on how employers can defend themselves against meritless litigation by vexatious employees when making the hard employment decisions necessary to survive the Great Recession and to prosper in the Great Recovery. The economy may be rebounding from the Great Recession of 2007-2009 and therefore, employers must be prepared for the recovery. Before the economic downturn ends, employers will still have to make difficult employment decisions on which employees to layoff and which to keep. When the economy rebounds, employers will have to make the decision whether to recall laid-off employees and/or to hire from the larger pool of qualified job applicants. Employers will still have to make decisions to remove employees who employers see as obstacles to recovery.
Seminar Topics:
· The mistakes employers make when terminating or laying off employees that lead to costly lawsuits and how to avoid them.
· The best way to remove “deadwood” employees who are impeding the company’s recovery.
· How to avoid costly lawsuits during the recovery from disappointed employees who are not recalled to work.
· Avoiding the pitfalls that trigger wage and hour class actions and how to prevent them from ruining your recovery.
· New labor and employment law developments including the proposed Employee Free Choice Act that could trigger, if enacted, a new massive waive of union organizing in the private sector, attempts to ban mandatory arbitration agreements, and new immigration “no match” policy.
2. Internal Investigations of Harassment and/or Other Unlawful Conduct
When faced with complaints of inappropriate workplace conduct, employers should take all harassment and/or other complaints of unlawful conduct seriously and have proper reporting procedures established so that employee complaints are reported through managers and supervisors to appropriate human resource personnel. However, some employers make the mistake of treating a complaint of harassment or other unlawful conduct as being less reliable merely because the complaint comes from an employee that the employer considers troublesome or non-productive. Other employers make the mistake of simply ignoring the employee complaints or allowing these complaints to go unanswered in the hopes that the complaint will simply go away. Remember even a broken clock tells the correct time twice a day.
If an employer does not conduct a timely investigation of a complaint, then the most serious risk that an employer potentially faces is that the employer could be found by a jury to either “have known, or should have known” of the harassment and/or unlawful conduct that the employee had complained about, taking no action to stop the harassment and/or discrimination and therefore could be ripe for the imposition of punitive damages. Therefore, employers should never ignore employee complaints or allow these complaints to go unanswered.
Once an employer has received a complaint, then the employer must decide whether to conduct the investigation themselves by utilizing their human resources department or whether employment counsel should conduct the investigation. Deciding who will conduct the investigation is central to conducting a fair investigation and avoiding challenges to the integrity of the investigation and the investigation’s results later on by either a plaintiff employee’s counsel and/or a skeptical judge or jury. For example, when harassment and/or unlawful conduct allegations are made by an employee against high level members of an organization, such as co-owners, vice presidents, controllers, plant managers, or supervisors; employment counsel should generally conduct these investigations and therefore sidestep potential issues of conflict of interest and undue management influence that could almost certainly be leveled against a lower level human resources manager who conducts such an investigation.
The manner in which an investigation is done is just as important an issue as who does the investigation. The seminal case in California dealing with internal workplace investigations is Cotran v. Rollins Hudig Hall International, Inc. et al., 17 Cal.4th 93 (1998), in which the California Supreme Court held that in considering whether an employer wrongfully terminated an employee: “the question critical to defendants’ liability is not whether plaintiff [employee] in fact sexually harassed other employees, but whether at the time the decision to terminate his employment was made, defendants, acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing plaintiff had done so.” Therefore, it is essential that all witnesses mentioned by the employee making the complaint as supporting his or her harassment and/or unlawful conduct claim should be interviewed as well as all documents including e-mails reviewed. By timely investigating these workplace complaints, employers are in a proactive, rather than a reactive posture and will be in a better position to defend potential employee suits based on wrongful termination, harassment and/or other unlawful conduct.
3. The California Supreme Court and Videotape Surveillance:
In Hernandez v. Hillsides Inc. et al., Plaintiffs Abigail Hernandez and Maria-Jose Lopez were employed by Hillsides, Inc., and Hillsides Children Center, Inc., which operated a private nonprofit residential facility for neglected and abused children, including the victims of sexual abuse. Both Hernandez and Lopez shared an enclosed office and performed clerical work during daytime business hours. John Hitchcock, the director of the facility, learned that late at night, after Hernandez and Lopez had left the premises, an unknown person had repeatedly used a computer in their office to access the Internet and view pornographic websites, which conflicted with company policy and with Hillsides’ purpose of providing a safe haven for the children.
Hitchcock, who was concerned that the culprit might be a staff member who worked with the children, and without notifying Hernandez and Lopez, set up a hidden camera in their office. The camera could be made operable from a remote location, at any time of day or night, to permit either live viewing or videotaping of activities around the targeted workstation. The parties to the lawsuit did not dispute the fact that the camera was not operated for either of these purposes during business hours and, as a consequence, that Hernandez and Lopez’ activities in the office were not viewed or recorded by means of the surveillance system. Hitchcock did not expect or intend to catch Hernandez or Lopez on the tape.
In September 2003, Hernandez and Lopez filed suit against Hillsides and Hitchcock over the use of video surveillance equipment in their office. The Complaint alleged that Hillsides and Hitchcock intruded into a protected place, interest, or matter, and violated their right to privacy under both the common law and the state Constitution. The Trial Court granted Hillsides and Hitchcock’s motion for summary judgment and dismissed the case. The Court of Appeals reversed, finding triable issues that Hernandez and Lopez did suffer: (1) an intrusion into a protected zone of privacy that (2) was so unjustified and offensive as to constitute a privacy violation. The California Supreme Court agreed to hear the case and examined the issue by considering: (1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests.
When considering the reasonable expectation of privacy issue, the Court found that because employees who share an office, and who have four walls that shield them from outside view may perform grooming or hygiene activities or conduct personal conversations during the workday; privacy is not wholly lacking because the occupants of an office can see one another or because colleagues, supervisors, visitors and security and maintenance personnel have varying degrees of access. The Court also found that employees who retreat into a shared or solo office and who perform work and personal activities in relative seclusion there would not reasonably expect to be the subject of televised spying and secret filming by their employer. However, the Court did not find that the intrusion was highly offensive and constituted an egregious violation of prevailing social norms based on the following reasons: (1) Hernandez and Lopez were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape; and (2) activation of the surveillance system was narrowly tailored in place, time, and scope, and was prompted by legitimate business concerns: providing a safe haven for the children.
The Court reaffirmed in Hernandez the general legal proposition that when employees receive notice of, and consent to an impending intrusion, this can “inhibit reasonable expectations of privacy.”
It is essential that Employers draw the following significant lesson from Hernandez – Employers should have specific handbook employment policies and warning signs posted prior to utilizing video cameras and/or recording devices in work areas, even enclosed offices.
The Goldstein Law Firm
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Beverly Hills, California 90211
Telephone: (310) 553-4746
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