On August 26, 2016, the National Labor Relations Board issued a decision in Total Security Management Illinois 1, LLC, in which it held that an employer who is engaged in negotiations for an initial collective bargaining agreement with a recently certified union must provide the union with notice and an opportunity to bargain prior to imposing discipline on an employee within the bargaining unit.  By doing so, the NLRB effectively reinstated its prior decision in Alan Ritchey, Inc., which had previously been invalidated by the Supreme Court in NLRB v. Noel Canning. Prior to Alan Ritchey, employers had been able to continue to impose discipline consistently with past practices while initial negotiations with a recently certified union were ongoing, and they were able to do so without providing notice and an opportunity to bargain.  Employers can no longer comfortably do so without risking a violation of the National Labor Relations Act.  Instead, employers who are engaged in negotiations with a recently certified union will need to provide the union with notice and an opportunity to bargain over any discipline that will materially alter an employee’s terms of employment (i.e., termination, suspension, demotion, etc.). However, the duty to bargain will not apply to discipline that does not materially alter the terms of employment (i.e., a verbal or written warning).  The obligation also does not apply if the employer and the recently certified union have separately agreed on a disciplinary process. Employers who are in the process of negotiating an initial collective bargaining agreement with a recently certified union should be mindful of this obligation going forward.

The following article was published in Employment Law 360 on September 15, 2015. Turn down the lights and roll the film on the recent district court decision to vacate the four game suspension of New England Patriots' quarterback Tom Brady.  The much ballyhooed proceeding known as "Deflategate" holds valuable lessons for all labor practitioners, regardless of whether they cheer for or against the Patriots. The Deflategate Litigation This disciplinary proceeding arose out of allegations that during the first half of the AFC Championship game on January 18, 2015, the New England Patriots used footballs that did not meet the minimum air pressure inflation standards under NFL rules.  The League conducted an investigation, led by outside counsel, Ted Wells of Paul, Weiss, Rifkind, Wharton & Garrison LLP.  As a result of the investigation, Tom Brady was found to have been “generally aware” of the actions of other Patriots’ employees in the deflation of footballs and to have failed to cooperate with the investigation.  For his misconduct, Mr. Brady was suspended without pay for four games. The National Football League Players Association appealed Mr. Brady’s suspension.  Under the parties’ collective bargaining agreement, NFL Commissioner Roger Goodell served as the arbitrator.  After the arbitration hearing, Commissioner Goodell denied the appeal and sustained the four game suspension. In an action in the U.S. District Court in New York, the NFL sought to confirm the arbitration award and the Players Association sought to vacate it.  On September 3, 2015, District Court Judge Richard Berman denied the motion to confirm, granted the motion to vacate, and vacated the four game suspension.  The NFL has subsequently appealed. It is not the intention of this article to analyze the court's decision under the Federal Arbitration Act and the jurisprudence generally limiting judicial review of labor arbitration awards, nor to evaluate the merits of the case for and against Mr. Brady’s suspension.  Rather, we will “break down the film” of the proceeding and the court’s decision, as every good coaching staff does on Monday morning, and identify four critical lessons for labor practitioners to incorporate into their game plans. Four Critical Lessons Learned 1.  Everyone on the Team Needs the Playbook. One of the principal reasons that the district court vacated the arbitration award was the court’s conclusion that Mr. Brady did not have notice of the prohibited conduct and the potential discipline. The concept of notice is fundamental to effective management of employees.  In the discipline context, the first question that is regularly asked in any review (arbitral, administrative or judicial) is whether the employee had adequate notice of the work rule or performance standard at issue and the possible consequences of the failure to meet the expectation of the rule or standard.  Establishing and disseminating clear work rules and performance expectations from the first day a player laces up his cleats is on page one of the HR playbook. The Deflategate proceeding highlights three common sub-issues on this topic.  First, the issue of notice should be analyzed from the player/employee’s point of view.  An employer that provides a handbook to its employees, but also maintains a separate policy manual with distribution limited to management staff, may have difficulty enforcing discipline against employees for violations of policies in the management manual.  We turn to Deflategate for an example.  Each year, the NFL issues to all players the “League Policies for Players,” which not surprisingly contains a rule regarding uniform and equipment violations.  The NFL also maintains a “Competitive Integrity Policy,” but that policy is only issued to team chief executives, presidents, general managers and head coaches.  At the appeal hearing, NFL Executive Vice President Troy Vincent, the author of Mr. Brady’s suspension letter, acknowledged that the investigative report was based on, and the policy against tampering with footballs was contained in, the Competitive Integrity Policy.  The Players Association argued forcefully that the Competitive Integrity Policy, which was not issued to Mr. Brady, could not properly provide a basis for discipline and the district court agreed. Second, the nature of the alleged misconduct here – tampering with equipment in a championship game and obstruction of an investigation – raises the question:  are there circumstances in which no pre-existing rule is necessary because the conduct is so obviously impermissible that proof of wrongdoing can support discipline even in the absence of a specific rule?  Of course, the answer is yes, but the application of this principle can be difficult. In Mr. Brady’s case, the application of the patently obvious misconduct principle was complicated by several factors.  For example, as to tampering, the investigation only concluded “[Mr. Brady was] at least generally aware of the actions of the Patriots’ employees involved in the deflation of the footballs and that it was unlikely that their actions were done without [his] knowledge.”  The League relied on this conclusion when issuing the initial suspension, but the Judge was underwhelmed, asserting “I am not sure I understand what in the world that means, that phrase [generally aware of the inappropriate activities of other Patriot employees].” So we must recognize that reliance on the obvious misconduct principle requires proof of such misconduct.  And, in the absence of clear proof, there is a risk that, on review, the discipline could be overturned because of ambiguities in the application of such principles. Third, the requirement of notice extends not only to the conduct at issue, but the likely consequence or discipline as well.  Some work rules lend themselves to precise discipline.  A point system for attendance violations with a progressive discipline structure based on points accrued is a classic example.  Similarly, Article 42 of the NFL’s CBA contains an extensive list of infractions and maximum penalties that a team may impose on its players. Other employers opt for a more open-ended description of the potential discipline for any violation (e.g., “up to and including termination of employment”).  In those settings, the level of discipline tends to be established over time and with experience.  Arbitrators and reviewing courts look for comparators to judge whether the employee was on notice of the potential consequences and whether the discipline imposed was consistent with prior, similar situations. Again, two aspects of the NFL’s rules and disciplinary practices were problematic for the district court.  The rule in the Players’ Policies relating to equipment and uniform violations stated:  “First offenses will result in fines.”  There was also evidence that obstruction of league investigations was an offense that warranted a fine.  In fact, in one recent arbitration, former Commissioner Paul Tagliabue, serving as the Commissioner’s designated arbitrator, stated in his award that the NFL’s practice was to fine but not suspend players for such misconduct.  In 40 years with the League, there was no record of any player being suspended for obstructing an investigation. 2.  Consistent Treatment of All Players Matters. This last point on notice reinforces another lesson:  the importance of consistent treatment for similar misconduct.  Both the Players Association and the NFL identified prior disciplinary actions and arbitration decisions to support their respective positions on the appropriateness of a four game suspension.  Judge Berman was persuaded by the Players Association’s precedent that a fine, and not a suspension, was the appropriate discipline for the asserted violations.  Former Commissioner Tagliabue’s arbitration award citing 40 years of such history was compelling to the court. So what can a new commissioner, coach, CEO or HR Vice President do to make a change -- to enforce more rigorous discipline, change priorities or enhance performance standards?  Clearly, on a prospective basis, work rules and performance standards can be modified to reflect new priorities and initiatives.  Often, collective bargaining agreements provide management with the right to establish reasonable rules with proper notice to the union and employees.  In the absence of a contractual right, such rule changes would be a subject for negotiations. When faced with a particular incident, and the opportunity to set a new precedent, the new decision maker may seek to make a subtle change based on nuanced circumstances that differentiate the present case from prior incidents.  There is also a school of thought that endorses making a substantial change to the status quo, for example a significant suspension for conduct that previously gave rise to a fine, recognizing that the action may be challenged in arbitration or on judicial review.  Even if it is overturned or reduced on review, the new management has remained true to its espoused principles.  It is also possible that such a significant change in precedent is the opening position in an anticipated negotiated resolution, which may well include a new, more rigorous standard for future cases in exchange for a compromised penalty in the present case.  Certainly, Judge Berman in the weeks before his decision, created opportunities for such a negotiated resolution of Mr. Brady's suspension, but to no avail. 3.  Calling an Audible During an Employment Proceeding Can Leave the Team Exposed. One of the uncommon elements of the player discipline procedure under the NFL’s CBA is the provision that allows the Commissioner to serve as the final and binding arbiter of discipline disputes.  Typically in a discipline arbitration, the parties select a neutral arbitrator and the employer bears the burden of proving “just cause” for the discipline based on the facts the employer had obtained through its investigation prior to imposing the discipline.  By contrast, in the NFL’s discipline appeal procedure, following the initial assessment of discipline, there is an evidentiary hearing, after which the Commissioner (or his selected designee) renders a final decision based on a preponderance of the evidence – new and old – under a standard described in the CBA as discipline “for conduct detrimental to the integrity of, or public confidence in, the game of professional football.” As a result, the specific rationale for the discipline may change based on the evidence presented at the appeal hearing.  Such was the case with Mr. Brady’s suspension.  The Commissioner relied heavily on the evidence, newly revealed at the appeal hearing, that Mr. Brady had “destroyed” his cell phone on or about the day he was interviewed by Investigator Wells and as a consequence the 10,000 text messages on that phone were no longer available.  This information was not contained in the investigative report and was not known at the time of the initial discipline.  The Commissioner found this information “very troubling” and concluded:  “there was an affirmative effort by Mr. Brady to conceal potentially relevant evidence and to undermine the investigation” and that he “willfully obstructed the investigation.”  The Commissioner also re-assessed Mr. Brady’s culpability for the tampering of the footballs by the equipment staff, based on the hearing evidence and his assessment of credibility.  He found that Mr. Brady “knew about, approved of, consented to, and provided inducements and rewards in support of” a scheme to tamper with the footballs, which constituted conduct detrimental to the integrity of the game. These changes in the rationale for Mr. Brady’s suspension, although sanctioned by the NFL’s CBA, were ruled incomplete by Judge Berman.  The District Court recognized that the Commissioner’s finding of Mr. Brady’s culpability for tampering went “far beyond” the finding of “general awareness” of others’ misconduct contained in the investigative report and the initial suspension letter.  In addressing the Commissioner’s rationale, Judge Berman held that reliance on the “broad CBA ‘conduct detrimental’ policy – as opposed to specific Player Policies regarding equipment violations – to impose discipline on Brady is legally misplaced” (emphasis supplied).  In other words, the broad authority negotiated in the CBA for the Commissioner to discipline players for conduct detrimental to the game is now, as a matter of law, reduced to sanctioning players for violations of specific player policies.  This holding of the Deflategate decision, if it stands, may prove particularly problematic for the NFL. While not directly on point, these facts should remind employers that presenting alternative, more robust explanations for their employment decisions in arbitration, or administrative or judicial proceedings can be risky.  As the Seventh Circuit has explained in the employment discrimination context:  "If at the time of the adverse employment decision the decision maker gave one reason, but at the time of trial gave another reason which was unsupported by the documentary evidence the jury could reasonably conclude that the new reason was a pretextual after-the-fact justification."  Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. 1991), cert. denied, 505 U.S. 1205 (1992). 4.  Teams Can Be Penalized for Unnecessary Roughness. One final observation arises in part from a specific holding in Judge Berman’s decision and in part from its tone.  To support the suspension, Commissioner Goodell had largely looked past the precedents involving equipment tampering and obstruction of investigations, and instead had clearly and forcefully relied on the discipline imposed for a violation of the performance enhancing drug policy.  He described a steroid use violation as the “closest parallel” to Mr. Brady’s misconduct, both warranting a four game unpaid suspension – 25% of the regular season.  It plainly appears that Commissioner Goodell was making a statement to Mr. Brady and the League about the seriousness of the misconduct, which he described as an effort “to secure an improper competitive advantage” and “to cover up the underlying violation.”  It bears noting, in evaluating the appropriateness of the discipline, that there were no allegations of prior misconduct by Mr. Brady, he was the starting quarterback on the Super Bowl winning franchise, and has been described in the public press as the “Golden Boy” and, by some, as one of the 5 best quarterbacks in League history. Judge Berman flatly rejected the Commissioner’s comparison.  He described the negotiated steroid use policy as “sui generis” and opined that he could not “perceive” any comparability between steroid use and Mr. Brady’s conduct.  He quoted Commissioner Tagliabue’s arbitration decision again to the effect that a sharp change in discipline can be arbitrary and an impediment to, rather than an instrument of, change.  He also noted that Mr. Brady’s performance in the Championship game improved in the second half after the footballs were properly inflated.  While the legal issues on appeal will address whether or not Judge Berman overstepped his authority in limiting the Commissioner’s discretion to issue discipline under the CBA, the clear lesson for employers is that a wide array of circumstances matter in the evaluation of employment decisions.  An employer that acts without fair consideration of all relevant factors is like a team running a naked bootleg, both do so knowing there are significant risks. The Deflategate decision presents a strong cautionary tale for employers.  Managers who conduct workplace investigations and make employment decisions must be well-trained and thoughtful in effectuating their game plans.  They need to understand and evaluate the short run and potential long run implications before they speak or write the first time about those decisions.  Employers must also recognize that even the best game plans cannot always anticipate the reaction of arbitrators, judges and juries – the ball can take an unexpected bounce.

Conducting workplace investigations is one of the most challenging and most important duties that Human Resource professionals must take on.  With the slew of existing laws, how Human Resource professionals respond to complaints about harassment or other misconduct can have huge legal and practical implications for the employer.  Unfortunately, Einstein’s definition of insanity -- doing things the same way and expecting a different result -- all too often is at play when it comes to conducting effective investigations.  Unfortunately, employers make the same mistakes time and again, exposing themselves to potential legal liability.  These common mistakes often result in lawsuits being filed by the complaining employee or by the employee who is fired or disciplined.  Here is a list of 10 common mistakes Human Resource professionals should avoid to minimize unnecessary legal exposure. 1.  Failing to Investigate or Ignoring Complaints Failing to take action when a complaint is made is one of the biggest mistakes employers can make.  Choosing not to conduct an investigation after acquiring knowledge of the alleged inappropriate conduct will result most likely in the company being legally responsible for harm caused to any employee, client, and others due to the inappropriate conduct.  Regardless of how frivolous or unfounded the complaint appears, or who made the complaint, an investigation should be conducted.  Even allegations made by employees who have a history of making complaints or are regarded as “troublemakers” at work should not be ignored.  Equally important, the mere fact that the complaint may be anonymous does not excuse the failure to investigate.  Obviously, the task is more difficult but the investigation nonetheless should be conducted. 2.  Not Creating an Investigation Plan Failing to create a preliminary plan for the investigation creates serious issues because it often results in the purpose of the investigation being misunderstood or forgotten.  Before diving into the investigation, make sure you’ve thought about the five W’s:  (1) Why are you investigating?; (2) Who will conduct the investigation?; (3) Who are the witnesses that need to be interviewed?; (4) What evidence needs to be collected?; and (5) What is your investigation timeline? 3.  Taking Too Long to Investigate Delaying the initiation of the investigatory process after being notified of an issue may lead to employer liability.  Particularly in harassment and discrimination cases, an employer’s decision to delay an investigation may be viewed as subjecting the employee to additional unlawful behavior.  Nonetheless, making sure an investigative plan is properly prepared remains important.  Therefore, Human Resource professionals must strike a balance between adequately preparing for the investigation and avoiding unreasonably long delays. 4.  Not Having Trained and Ready Investigators or Selecting the Wrong Investigator A failure to have trained investigators prepared to promptly respond to complaints can result in an ineffective and drawn out investigation.  Employers should have a few employees trained to conduct an impartial, professional, and credible investigation.  Another option is to hire a trusted Human Resources colleague or use in-house or outside counsel to conduct the investigation.  No matter who you choose as the investigator, making sure that the investigator is trained and able to begin the investigation promptly is key. Depending on the nature of the allegations, you also need to be sure you have selected the right person for the job.  For example, having a former senior law enforcement official interview relatively young employees regarding highly sensitive allegations of a sexual nature may not be the most effective way to get the truth! 5.  Not Doing a Thorough Investigation Conducting a sloppy investigation by failing to interview necessary witnesses, failing to review relevant documents, and ignoring potential issues that come up during the investigation can create just as much legal exposure as not doing an investigation at all.  You should make sure that every investigation is thorough, not only to ensure that the alleged misconduct is properly dealt with, but also to counteract any accusations by an employee that the investigation was ineffective. 6.  Conducting Unlawful Searches Searching an employee’s personal belongings or monitoring certain communications without consent can result in the employer breaking several federal and state laws.  To avoid liability, it is good practice for employers to make employees aware of its surveillance policies and obtain consent from employees to monitor and access communications and information contained on any electronic devices employees are given access to at work. 7.  Using Aggressive or Unwelcoming Interview Styles An employer may become the target of a lawsuit if its investigators are overly aggressive when interviewing employees about alleged misconduct.  Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions, just to name a few.  More practically, the employer risks not getting the whole story, dissuading employees from cooperating in the investigation, and not reaching the correct conclusion in the matter.  To avoid aggressive interviewing, you should consider appropriate locations to conduct the interviews, outline questions in advance, and use open-ended questions when able, to get the entire story.  As noted above, the “right” investigator can and often does make a big difference in making witnesses feel comfortable so that they will be cooperative instead of obstructing the investigation. 8.  Making Confidentiality Promises Although it is reasonable for an employer to encourage everyone involved in the investigation to keep the matter private, an employer should never promise an employee that his or her complaint will remain confidential.  There will always be certain information that must be disclosed in order for a thorough investigation to be completed.  Moreover, depending again on the nature of the allegations, employers run the risk of a possible violation of federal labor law (considering the NLRB's Banner Health decision) if they demand absolute confidentiality by the witnesses. 9.  Failing to Create a Report Don’t underestimate the value of documenting investigations and credibility determinations to help support the company’s action or inaction regarding the allegations.  Not appropriately documenting necessary evidence, information provided during interviews, and any other relevant findings is just as bad as failing to conduct an investigation.  “The dog ate my homework” does not work very well in the legal arena.  When there is no record of the information obtained to support your determination, there is no way to show that a proper investigation was done and that an appropriate determination was reached.  An investigatory report should be prepared for every single investigation and should include a summary of the matter, the identity of the complainant, the accused, and all witnesses, a description of the relevant documents, findings, credibility determinations, and the recommended action. 10.  Failing to Make a Determination Failing to reach a conclusion and take the necessary steps to stop misconduct and prevent it from occurring in the future will ultimately result in the employer once again exposing itself to legal liability.  Once the report has been completed, a determination should be made regarding whether the misconduct occurred and what appropriate actions should be taken.  Make sure, especially in cases of harassment, that the complainant does not suffer any adverse employment actions resulting from the determination unless you can prove that the allegations were made in bad faith.  When a determination is made, you should consider not only if the chosen action appropriately corrects the problem, but whether it also sends a message to coworkers of what the consequences are for harassing behavior or misconduct. Following these basic common sense steps should go a long way in helping you ensure your employer avoids unnecessary liability.

In prior blog articles, we’ve visited the battle field with Sun Tzu to learn the art of defending employment litigation, Santa’s Workshop for a holiday reminder that we can be sued for just about anything, and the major league baseball diamond with A-Rod for a lesson in swinging for the fences with the faithless servant doctrine.  Our next stop on the Employment Law Express is to confer with one of the foremost Zen-masters on a more peaceful approach to our day-to-day employment matters.  That master is none other than the venerable Winnie the Pooh. Often thought of only as a cuddly focal point in children’s fiction, Pooh Corner offers a host of spiritual wisdom that has broad applications as to how we can best manage our day-to-day strife in the world of human resources.  So let’s take a careful look at some of the more astute Pooh-isms and what they tell us about how best to minimize the agita in our work. "It's more fun to talk with someone who doesn't use long difficult words but rather short easy words like, 'What about lunch?'" Indeed, though apparently Winnie the Pooh has never had lunch with a lawyer.  Not using (I thought about using the word “Eschewing”) long difficult words is not only wise but an absolute necessity in the world of employment law.  Take, for example, company handbooks and policies.  Their whole purpose is to provide clear notice to employees of the rules governing their employment.  The use of “long difficult words” defeats this purpose.  Ambiguity and uncertainty breed escape hatches for employees which, in turn, disrupt the tranquility of human resources operations. The use of “long difficult words” also becomes a serious problem when trying to enforce a non-compete agreement.  Some courts will hold that ambiguous non-compete clauses are either not enforceable at all or require a full-blown trial to enforce them.  Consequently, it is “more fun” to enforce a non-compete clause that is worded using short easy words that make the employee’s obligations crystal clear.  This holds true with any type of employment, separation or severance agreement -- they should contain short, easy language that even a bear who forgets to wear pants can understand. "People say nothing is impossible, but I do nothing every day!" While most of our employees are dedicated and hard-working, there are always a few exceptions who put a great deal of effort into doing nothing.  Think George Costanza.  The problems with these type of employees are many and include lost productivity and loss of morale among other employees who do not have the luxury of doing nothing all day.  So we need to make doing nothing all day impossible.  The caveat here is that nothing-doers tend to sue for discrimination when their reign of nothingness is put to an end.  To avoid such claims, or make them easily dismissible, ironically requires hard work on our part.  This means well-written (short easy words) counseling and disciplinary memos documenting the lack of performance and failure to follow specific directives. This played out in the interesting case of Sanzo v. Uniondale Union Free School District.  The plaintiff school custodian sued his former employer claiming that he was unlawfully terminated on the basis of his disability, narcolepsy, which caused him to occasionally fall asleep on the job.  The well-documented personnel file, however, demonstrated that discrimination was not at all at play.  The plaintiff was not fired because he fell asleep, but rather he was fired because he declined to do his job when he was awake. In the end, what Pooh is telling us is that some people will find it possible to do nothing at least until such time as someone with supervisory authority affirmatively makes it impossible. "You can't stay in your corner of the forest, waiting for others to come to you; you have to go to them sometimes." There are certainly days when sanity dictates that we stay in our own corner of the proverbial forest.  Staying too long, however, is like saying “open sesame” to the door of liability.  This often comes up in the context of workplace harassment and bullying investigations.  We’ve all gotten much better at the initial response to complaints and we conduct our investigations promptly and fairly.  The problem arises, however, when the harassment, if established, is not sufficiently severe to warrant terminating the alleged harasser so some other resolution is formulated (e.g., the harasser is separated from the complainant).  With such a remedial measure, our job is done, right?  Actually, the seeming completion of a workplace investigation is precisely not the time to retreat to our corner of the forest.  Rather, that is the time to periodically go out to see the complainant to make sure that no further harassment is taking place.  Our anti-harassment policies become viable defenses when they are not just initially followed but continually followed to stop any ongoing harassment.  Getting out of our corner of the forest means being proactive and being proactive defeats lawsuits. Although we all continue to get older and more experienced, the answers to many of our day-to-day problems nonetheless can still often be found in the pages of books long left unopened on our children’s bookshelves (or Kindles, I-Pads, etc.). Note:  All of the Pooh-isms in this blog article can be found in A.A. Milne's Winnie the Pooh and Pooh's Little Instruction Book.

As many school districts are aware, it is not uncommon for a district to receive a request to disclose allegedly relevant student records to a tenured teacher facing disciplinary charges in the context of an Education Law Section 3020-a proceeding.  However, as school districts are also aware, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of student educational records and prohibits the disclosure of such records except in limited circumstances.  Thus, the teacher’s right to access evidence relevant to his/her defense must be balanced against a student’s right to privacy in his/her educational records.  The decision recently issued by the Appellate Division, Fourth Department, in In re Watertown City School District v. Anonymous is a good reminder to school districts that a teacher's right to access student records in a disciplinary proceeding is not absolute. At issue in the Watertown City School District case was whether a tenured teacher could compel the school district to disclose student records that the teacher claimed were “highly relevant” and “necessary” to the teacher’s defense to disciplinary charges.  The teacher served on the district a broad subpoena seeking the production of all student records for all student witnesses who would be testifying against the teacher during the disciplinary hearing.  The sole limitation on the teacher’s request was that records prior to seventh grade were not requested; all other student records were requested under the subpoena. The district objected that the student records sought were irrelevant and protected under FERPA, and ultimately brought a proceeding in New York State Supreme Court to quash the subpoena.  The Supreme Court disagreed with the district, and ordered the district to produce all of the records requested under the subpoena. However, on appeal, the Appellate Division reversed the lower court's ruling, and granted the school district's petition to quash the subpoena.  The Appellate Division explained that the teacher was required to come forward with a factual basis establishing the relevance of the documents sought.  The Court held that the teacher failed to meet this burden, principally because the allegations of misconduct against the teacher involved activities outside the classroom and the teacher did not provide any specific information regarding how the students' educational records were relevant to her defense. In light of the Appellate Division’s ruling in the Watertown City School District case, school districts can breathe at least a small sigh of relief knowing a tenured teacher facing disciplinary charges cannot gain unfettered access to student records in search of evidence to use in his/her defense.  At a minimum, the teacher must establish a factual basis demonstrating that the student records sought are relevant and reasonably related to the teacher’s defense.

Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes.  While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion.  The Center for Disease Control and Prevention reports that 1 in 4 women and 1 in 10 men have experienced physical or sexual violence or stalking by an intimate partner.  Only a small fraction of these cases involve millionaire athletes. Whether it is obvious or not, domestic violence impacts workplaces across the United States on a daily basis.  When this happens, an employer is often left struggling with the question of how – if at all – it should acknowledge and react to an employee’s sensitive and highly personal situation.  While the nature of the problem makes it impossible to predict every issue that might arise, the following questions are frequently asked by employers when domestic violence affects their workplace. Question:  Do any job protections exist for domestic violence victims? Answer:  Yes.  In several states, including New York, domestic violence victim status is a protected category, meaning that an employer cannot take adverse job actions against an individual on that basis.  While federal law does not expressly provide this same protection, Title VII of the Civil Rights Act (Title VII) makes it unlawful for an employer to treat an employee differently due to sex-based stereotypes, such as the assumption that there will inevitably be “distractions” in the workplace if a female employee is involved in an incident of domestic violence.  This is not to say that domestic violence victims are insulated from employment actions taken for legitimate work deficiencies or other non-discriminatory reasons.  It does mean, however, that an employer will be expected to prove that a challenged action occurred for a non-discriminatory reason. It is also important to remember that the Americans with Disabilities Act (ADA) and analogous state laws prohibit discrimination on the basis of covered physical or mental impairments.  Those same laws also require employers to provide disability-related accommodations, which could include modifying certain job responsibilities or employment policies, unless doing so would cause an undue hardship to the business.  Although an incident of domestic violence would not itself implicate these laws, the accompanying physical and emotional harm could constitute a disability resulting in employee coverage. Question:  Is an employer required to provide victims of domestic violence time off from work? Answer:  The New York Penal Law makes it a misdemeanor offense for an employer to penalize the victim of a crime who, after giving advance notice, takes time off from work to appear in court as a witness, consult with a district attorney, or obtain an order of protection.  In addition, the federal Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid leave to recover or receive treatment for serious health conditions, which could include counseling for any physical or psychological conditions resulting from domestic violence.  The ADA and equivalent state laws may also require that some amount of unpaid leave be offered as a form of reasonable accommodation. An employer would also be expected to grant domestic violence victims time off from work pursuant to internal leave policies if leave is normally available to employees experiencing other types of personal matters. Question:  Is an employer obligated to ensure a safe workplace for domestic violence victims? Answer:  The Occupational Safety and Health Administration considers workplace violence to be an occupational hazard which can be prevented or minimized with appropriate precautions.  Included within the agency’s definition of workplace violence is violence by someone who does not work at a given location, but who has a personal relationship with an employee.  Under the Occupational Safety and Health Act’s “General Duty Clause,” employers are required to provide a place of employment that is free from recognizable hazards that cause or are likely to cause harm to employees.  An employer that has experienced acts of workplace violence – or is on notice of threats, intimidation, or other indicia to show a potential for workplace violence – is required under the general duty clause to implement feasible abatement measures. Question:  What if my employee is not the victim, but is the person accused or found guilty of engaging in criminal acts often associated with domestic violence? Answer:  New York and many other states make it unlawful for an employer to discipline, discharge, or take other adverse action against an employee who was accused of a crime if the charges have been dropped, dismissed, or otherwise resolved in the employee's favor.  At least in New York, that same protection is not afforded to pending charges, but an employer motivated by mere allegations that an employee has perpetrated a crime could nevertheless find itself defending against claims of discrimination on other grounds.  This includes a claim that the challenged action was the result of an employer policy or practice which adversely impacts one or more groups protected by Title VII, as addressed in recent enforcement guidance issued by the Equal Employment Opportunity Commission.  If the accused employee belongs to a union, additional protections may be afforded under a collective bargaining agreement provision requiring “just cause” prior to disciplinary action. In regards to criminal convictions, several states restrict an employer’s ability to fire an individual because he or she has been convicted of a crime.  In New York, an employer considering such action must evaluate eight factors, such as the nature of the offense, the time elapsed, the age of the individual when the offense occurred, and any evidence of rehabilitation.  Only after evaluating these factors will an employer be in a sufficient position to determine whether a direct relationship exists between the offense and the job, or whether the person’s employment involves an unreasonable risk to property or safety, either of which would provide a defense to a discrimination claim based on a prior conviction. For either arrests or convictions, an employer should investigate the underlying facts to determine if an individual’s conduct justifies termination or some other employment action.  Failure to do so may hurt the employer’s chances of successfully defending against allegations of discrimination, prevailing at arbitration, or avoiding negligent hiring or retention claims. In sum, employers must become familiar with the various legal obligations that arise when an employee is involved in domestic violence, either as the victim or the accused.  If the employee is known to be suffering the effects of an abusive relationship, the employer should be prepared to grant leave or make other work-related adjustments to facilitate the employee's physical and emotional recovery or participation in the legal process (including obtaining an order of protection).  If the employee is accused or convicted of a violent or threatening act, the employer should determine if the underlying conduct impairs his or her continued employment, recognizing that the law generally disfavors employment actions taken because of an individual’s arrest or conviction record.  In either situation, merely ignoring the problem is never a good strategy.

The National Labor Relations Board (“NLRB”) continues to issue rule-changing decisions that create troubling results for employers.  We recently reported, for example, on the NLRB’s reversal of decades-old precedent when it ruled that a dues checkoff provision survives the expiration of a collective bargaining agreement.  Two days after issuing that decision, the NLRB issued a decision in Alan Ritchey, Inc., holding that an employer must bargain with a union under certain circumstances prior to imposing discretionary discipline on an employee who is represented by a union.

This new rule will apply only in the absence of a binding agreement between the employer and the union to address discipline, such as a grievance-arbitration procedure.  Therefore, as the NLRB explained, this obligation to bargain over employee discipline will typically arise only after a union is newly certified, but before the parties have agreed to a first contract.

In Alan Ritchey, Inc., after the union was certified and while negotiations were being conducted for a first contract, the employer continued to rely on its pre-existing five-step progressive disciplinary system set forth in its employee handbook to discipline several employees for absenteeism, insubordination, threatening behavior, and failure to meet efficiency standards.  Pursuant to the handbook, the employer reserved the right to exercise discretion in the enforcement of policies, and the employer admittedly exercised this discretion in setting the levels of discipline with regard to the employees in this case.  For example, when imposing discipline for failing to meet performance standards, three employees were treated leniently because of extenuating circumstances -- one employee’s husband died, another worked in a low volume area, and another was unable to work consecutive days in the same position.

The Union filed unfair labor practice charges to challenge these disciplinary actions, taking the position that it should have first been notified and given an opportunity to bargain.  The NLRB agreed.  It held that even though the employer’s existing discipline system represents the status quo that can and must be continued during bargaining for a first contract, the employer was not privileged to exercise any discretion with regard to that discipline system without negotiating with the union.  Rather, the employer was required to provide the union with notice and an opportunity to bargain each time it seeks to exercise any discretion with regard to employee discipline.  Recognizing that it had never articulated this requirement before, the NLRB opted to apply the rule only prospectively.

The NLRB set forth a few limiting principles in laying out this rule:

• First, the employer will only be required to provide the union with notice and an opportunity to bargain prior to implementing the discipline where it seeks to impose a suspension, demotion, or discharge.  For lesser forms of discipline, such as warnings and counselings, there is still a bargaining obligation, but the employer can delay providing the notice and opportunity to bargain until after the implementation of the discipline.
• Second, where there is an obligation to provide pre-implementation notice and opportunity to bargain, the employer need not bargain to agreement or impasse at this stage.  The employer need only provide sufficient notice, and provide responses to union information requests, if any.  If the parties cannot reach an agreement, the discipline can be imposed, and the bargaining obligation continues after imposition (albeit with the possibility that the discipline may have to be rescinded or altered).
• Third, no prior notice is required where “exigent circumstances” exist.  The NLRB defines this as a reasonable, good faith belief that “the employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel.”  This includes situations where the employer believes the employee is engaging in unlawful conduct, is posing a significant risk of imposing legal liability on the employer, or threatens safety, health, or security inside or outside the workplace.

In its decision, the NLRB expressed its view that this new bargaining obligation will not “unduly burden” employers.  It is difficult to agree with this assessment.  This new obligation presents a significant impediment to an employer's ability to manage its workforce while bargaining for an initial contract.  Although the employer need not complete bargaining regarding the discipline before imposing the proposed discipline, the obligation to provide meaningful notice and to respond to union information requests prior to imposing the proposed discipline will certainly create significant delays in the disciplinary process.

On September 10, 2012, the U.S. Court of Appeals for the Second Circuit reversed a 2010 District Court decision and rejected a claim by a terminated public school district employee that she was subjected to retaliation for engaging in protected speech under the First Amendment to the U.S. Constitution.  In Ross v. Lichtenfeld, the Second Circuit held that the employee's complaints upon which she based her retaliation claim were not protected by the First Amendment, and determined that the school district's superintendent was entitled to summary judgment.

Risa Ross was a payroll clerk typist for the Katonah-Lewisboro Union Free School District.  Her duties included processing the school district's payroll, transmitting direct deposits, mailing checks, and notifying appropriate personnel of payroll mistakes.  Between 2003 and 2006, Ross met with the school district's superintendent numerous times to express concern about payments that she believed to be improper.

In 2006, Ross was suspended with pay by the school district after it was discovered that Ross had failed to disclose on her employment application that she had been employed by three other school districts and had been discharged from her employment at each of those three school districts.  During her suspension, Ross wrote to members of the board of education regarding the concerns she had previously expressed to the school district's superintendent about financial malfeasance, and her belief that she had been suspended in retaliation for raising those concerns.  In those letters, Ross stated that, although she was an employee of the school district, she was writing on a "personal note" to express her frustration with the school district's administration.

The board initiated a disciplinary hearing.  The hearing officer found that Ross had knowingly made false statements on her employment application, and recommended that her employment be terminated.  The board then voted unanimously to terminate Ross' employment.

Ross filed four claims against the superintendent, including a claim that she was discharged in retaliation for exercising her First Amendment rights.  The District Court granted the superintendent's motion for summary judgment on every claim except the First Amendment retaliation claim, which it determined should proceed to trial.

The superintendent subsequently appealed the District Court's denial of summary judgment with respect to the First Amendment retaliation claim.  In its decision, the Second Circuit cited well-established precedent that a public employee speaking "as a citizen . . . on a matter of public concern" is entitled to First Amendment protection for that speech.  However, a public employee speaking pursuant to his or her official duties -- and not as a private citizen -- is not entitled to First Amendment protection for that speech, even if the employee's speech is a matter of public concern.  In determining whether a public employee's speech is pursuant to his or her official duties, courts examine the nature of the employee's job responsibilities, the nature of the speech, and the relationship between the two.

Ross argued, among other things, that her letters to board of education members were sent as a private citizen because she specifically stated in those letters that she was writing on a "personal note" rather than as an employee of the school district.  The Second Circuit rejected this argument, holding that "an employee's characterization of her own speech is not dispositive."  The Second Circuit also rejected Ross' other arguments, and held that Ross' concerns about improper payments and/or financial malfeasance were raised pursuant to her job duties as a payroll clerk typist.

Accordingly, the Second Circuit reversed the District Court's decision and determined that the superintendent was entitled to summary judgment on Ross' First Amendment retaliation claim.  In so holding, the Second Circuit reinforced well-established principles of what constitutes protected free speech by public employees.

Every employer, regardless of size, will eventually face the need to investigate a workplace misconduct issue.  Whether necessary to resolve a dispute between coworkers or to address unethical or unlawful behavior (e.g. alleged harassment of recently married same-sex couples), a properly conducted workplace investigation is a critical part of doing business.  Of course, most employers expect their HR professionals to properly handle even the most delicate investigations, and more importantly, protect the organization from potential liability resulting from either the misconduct or the investigation itself. As illustrated in a decision from the United States Court of Appeals for the Sixth Circuit upholding a jury verdict of over $1 million, juries are not reluctant to award plaintiffs substantial punitive and compensatory damage awards when employers fail to conduct proper investigations in response to complaints of workplace discrimination. For these reasons, it is imperative that every organization have a process in place to properly investigate workplace issues.

The most effective workplace investigation policies should require prompt investigation of all suspected misconduct. Employers should investigate a claim of wrongdoing even if a formal complaint is not filed. For example, the obligation to investigate may arise from an informal complaint, anonymous tip, information obtained from non-employees, information obtained during exit interviews, or any other means that brings the matter to the employer’s attention. “It wasn’t in writing,” or “she asked me to keep it confidential,” are not acceptable excuses for failing to conduct an investigation.
 

There are exceptions, of course, for example when the accused employee admits to the allegations right away or when the complaint is very minor, but even in these situations it is advisable to conduct a limited investigation to determine the full scope of the misconduct. At a minimum, conducting an investigation will stop the misconduct if it is occurring, send a message to employees that all workplace misconduct will be taken seriously, create a documented record, and put the organization in a much stronger position to defend against subsequent claims.

Next, select the right person to conduct the investigation. Selecting an individual who is experienced and is neither biased nor perceived as biased is essential to maintaining the integrity of the investigation. The investigator should be empowered to decide who to interview, decide what issues to pursue, engage outside resources if necessary, maintain confidentiality where possible, and be expected to make recommendations to management regarding an appropriate response to the complaint.

Developing a strategic investigation plan helps ensure the investigation is comprehensive and thorough, and substantially increases the probability of identifying material facts necessary to determine appropriate action by the employer. Although workplace investigations often take unanticipated turns, a well-documented plan will provide the road map necessary to accomplish the goals of the investigation. Similarly, properly documenting each interview, including obtaining a confirming signature from the complaining employee, is essential to completing a quality investigation. Documents never have bad memories.

Although it is obviously important for an investigation to be done promptly, it is also critical for the investigator to pursue the investigation wherever the facts may lead. Interviewing additional witnesses, reviewing relevant documents, and re-interviewing witnesses to obtain their response to the statements of others should never be avoided for the sake of expediency.

Quality investigations do not reduce the risk of an employer liability unless they have been properly completed. This requires communicating preliminary findings to the target employee to give the employee the opportunity to provide rebuttal information that may undermine the initial determination or require further investigation. Other essential steps include communicating with the complaining employee once conclusions are reached, administering appropriate discipline (if any), preparing a final investigation report, destroying all preliminary drafts (unless a “litigation hold” is required), maintaining the report in a location separate from the complaining employee’s personnel files, ensuring no retaliation is taken against the complaining employee, and disseminating information received during the investigation on a “need to know basis” only. It is also advisable, depending on the seriousness of the potential misconduct and potential employer liabilities, to have a “fresh set of eyes” independently review the investigator’s preliminary findings.
 

A recent decision from a United States District Court in Texas is a reminder of the risk created by an adverse employment action which follows closely in time the employer’s first knowledge of an employee’s disability or other protected characteristic. The situation where an employer learns of a disability, often through a leave request, just as it is about to impose discipline for performance problems or violations of policy is not at all uncommon. And it is very similar to the situation created when an employee who is about to be disciplined complains of discriminatory harassment. When such events occur, the employer is faced with a real dilemma: either impose the discipline and risk a retaliation or discrimination claim, or sit on the discipline for some undetermined period of time. Which course is best depends on a variety of facts and operational considerations. But one thing is certain. No action should be taken unless and until a complete and thorough investigation of the underlying performance issue or policy violation is completed. We have ridden the investigations hobby horse in other contexts. The Texas case plainly illustrates its importance in this context as well.

According to the Court’s opinion, a restaurant manager was discharged three days after he informed his supervisor that he had brain cancer and would need leave to seek treatment. The former manager sued for disability discrimination and for interference with his rights under the FMLA. The employer defended by arguing that it terminated the manager for improperly altering the time records of the employees who reported to him to deprive them of pay for time worked, a contention denied by the manager and at least some of the employees whose records were altered.

According to the Court’s opinion, which denied the employer’s motion for summary judgment, there were several holes in the employer’s argument. All of those holes were attributable to a poor investigation of whether the manager had in fact improperly altered time records to deprive employees of payment for time worked. For example, the Court noted that before the employer concluded the manager had committed a dischargeable offense, it never spoke to the employees whose records were altered, never spoke to the manager who altered the records, and never considered whether the time removed from the records was break time for which the employees failed to punch out. In addition, there was evidence suggesting that the plaintiff manager had been treated differently than other managers who engaged in the same conduct. Similar treatment for similar offenses is another basic principle of discharge and discipline investigations. All of these flaws could have been avoided through a proper investigation. The Court found that in light of these holes in the employer’s story, a reasonable jury could conclude that the employer did not have a good faith belief the manager had improperly altered time records, and could draw an inference of disability discrimination from the timing of the firing. That combination was enough to send the case to trial.
 

As Henry J. Kaiser once said, “Problems are only opportunities in work clothes.” So it is with annual performance evaluations -- supervisors should see them as an opportunity to improve employee performance, or, if that does not work, as a valuable tool in defending against employment litigation claims. Instead, most supervisors dread them and, as a result, put them off as long as possible. Lawyers for ex-employees love them because, as a general rule, the evaluations: (i) are not brutally honest about poor performance because the supervisor is still “working” with the employee; (ii) conflict with later positions taken by the employer in litigation; and (iii) lack specific examples and often closely resemble the evaluation of employees given dissimilar raises or who are still employed. In my litigation travels, I have been both greatly helped and hurt by evaluations. I have also learned many lessons, some the hard way. Here are a few performance evaluation do’s and don’ts for supervisors:

1. Planning.  Start to think about the evaluation at the beginning of the evaluation period, not the end. Keep track of good and bad performance examples throughout the year. If you evaluate all of your employees at the last minute because you are up a against a submission deadline, you may rush them and tend to generalize. This, in turn, creates a risk that the evaluations of your employees will tend to resemble each other.

2. The Good, the Bad and the Ugly.  You should note good and bad behaviors, even if the overall evaluation is poor, unsatisfactory or fails to meet expectations. Such an evaluation appears much more balanced, fair and unbiased, even if it is overwhelmingly negative as a whole.

3. Support Your Conclusions.  Nothing makes an evaluation more powerful than specific and concrete examples (date, time, place, deadlines met or missed, attendance, employee response after counseling or discipline, etc.). Keeping a folder or a log during the year will greatly assist you in recounting specifics in the evaluation. Assumptions and conclusions not supported by specifics are as unpersuasive in this context as any other.

4. Document Carefully.  If you keep a folder or log during the year, keep in mind it is discoverable by the ex-employee’s lawyer in litigation. So make sure there is nothing inappropriate written (just the facts). We often see reviews that speculate about the causes for the performance issue through comments which attribute the poor performance to family problems, medical problems, stress, etc. Avoid this speculation and stick to the facts. In addition, make certain you can demonstrate that you keep similar logs or folders for all your employees. The employer must avoid any appearance that it “built a file” to justify an adverse employment decision. Also, supervisors should inform themselves about company policy on the required time period for retaining such a file after completion of the evaluation.

5. If You See Something, Say Something.  If you notice trends or repeat behavior, don't igore them.  Note them in the review, particularly if the behavior has continued despite intervening counseling or discipline. This is a very powerful “specific.” (Note -- supervisors get extra credit for using the log to correct behavior or improve performance by communicating with the employee at the time the behavior or performance deficiency occurs, rather than waiting to write about it in the evaluation.)

6. Watch Your Language.  Too often, our first meeting with a supervisor to review an evaluation relevant to a litigation begins with the dreaded words, “I probably should have chosen a different word, but what I meant was… .” Obviously, supervisors must guard against any stereotyping and against mentioning factors that tend to indicate a retaliatory or discriminatory motive. Have Human Resources or another manager review your comments. Consider drafting the evaluation well before it is due. Then put it aside and pick it up again after a few days. Doing so provides an opportunity to examine it with fresh eyes and to make needed changes.

7. Get Help If You Need It.  Supervisors and managers are required every day to do more with less in order to accomplish the mission of their organizational units. Owners and Human Resource Professionals owe it to those supervisors to provide training and assistance in completing evaluations. This means doing more than just establishing a system, a form, and a deadline for completion. If your organization has not offered you that kind of training and assistance, don’t be afraid to ask. You and your organization will be better off in the long run.