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AWI Asks Court of Appeal to Publish Waters Opinion
The Association of Workplace Investigators (AWI) and other participants in the case have filed requests for publication with the California Court of Appeal of its “unpublished” opinion in Waters v. City of Petaluma, A145437.
In the opinion, the Court of Appeal upheld the attorney-client privilege protection of an impartial attorney-investigator’s report. AWI filed an amicus curiae (friend of the court) brief in the case. The trial court had ruled that the privilege did not apply on the theory that the attorney-investigator performed a fact investigation and did not provide legal advice. In upholding the privilege, the Court of Appeal found that the attorney-investigator performed legal services for the City when she conducted the impartial investigation, even though she did not provide legal advice as to which course of action to take to the City. An article about the Waters case is available on the AWI website.
The Court of Appeal originally issued its opinion in the Waters case as an “unpublished” opinion, which generally means that it cannot be cited as precedent in future cases. However, the court can change its mind and decide to “publish” the opinion if it decides the opinion is important enough that it should be available for use as precedent in future cases. In their requests for publication, that is exactly what the attorneys for AWI and other participants in the case have asked the court to do.
AWI’s request for publication was filed on behalf of AWI by its attorney Sarah Banola of Cooper, White & Cooper in San Francisco. “In particular,” Ms. Banola explains on behalf of AWI, “the opinion’s analysis of the attorney-client privilege and work product doctrine in the context of task-based representation by an outside attorney investigator who conducts a factual investigation of a sexual harassment complaint in her capacity as an attorney using her employment law expertise and skills, but who does not render any legal advice, is of significant interest to employers and their counsel.”
“We know of no other opinion in California,” AWI’s request continues, “that provides clear guidance on the application of the privilege and work product doctrine to this type of task-based representation, which is becoming more prevalent in today’s legal environment.” “This guidance will further the important policy goal of encouraging employers, when appropriate, to engage outside attorney investigators to conduct independent and rigorous investigations,” AWI’s request concludes.
AWI anticipates that the Court of Appeal will decide whether to publish the Waters opinion by July 8.
Last Updated on Thursday, June 30, 2016 12:13 PM
EEOC Harassment Task Force Issues Report Including Contributions by Four AWI Members
The US Equal Opportunity Employment Commission (EEOC) Select Task Force on the Study of Harassment in the Workplace has issued its report. The report is based on over a year of hearings and study by the Task Force, including testimony and articles by four leading members of the Association of Workplace Investigators (AWI).
The Task Force was co-chaired by EEOC Commissioners Chai R. Feldblum, who before her appointment in 2010 was a law professor at Georgetown University in Washington, DC, and Victoria A. Lipnic, who before her appointment in 2010 was of counsel to the Seyfarth Shaw law firm in Washington, DC.
The AWI members whose testimony and/or articles are part of the Task Force report are Amy Oppenheimer of Berkeley, California; Patricia Perez of San Diego, California; Michael Robbins of Los Angeles, California; and Sindy Warren of Cleveland, Ohio. Ms. Oppenheimer and Mr. Robbins are directors and past presidents of AWI. Ms. Perez and Ms. Warren have served as speakers at AWI programs and leaders in AWI committees.
In addition to their involvement in AWI and their professional practices, Ms. Oppenheimer is Chair of the State Bar of California Labor and Employment Law Section, Ms. Perez is a Commissioner on the California Fair Employment and Housing Commission, and Mr. Robbins is Chair of the Labor and Employment Law Section of the Los Angeles County Bar Association.
The Task Force report is a comprehensive and up-to-date study of workplace harassment in the United States, which includes detailed recommendations for the EEOC, other federal government agencies, researchers, employers, employer groups, labor unions, employee advocacy organizations, colleges, universities, and online education providers. The recommendations are designed to “reboot” workplace harassment prevention efforts to achieve the goal of reducing workplace harassment in the United States to the lowest level possible.
The Task Force report includes several important observations and recommendations in the area of workplace investigations. The first concerns the interplay between the need to keep workplace investigations as confidential as possible and recent decisions of the National Labor Relations Board:
“We heard strong support for the proposition that workplace investigations should be kept as confidential as is possible, consistent with conducting a thorough and effective investigation. We heard also, however, that an employer's ability to maintain confidentiality - specifically, to request that witnesses and others involved in a harassment investigation keep all information confidential - has been limited in some instances by decisions of the National Labor Relations Board ("NLRB") relating to the rights of employees to engage in concerted, protected activity under the National Labor Relations Act ("NLRA"). In light of the concerns we have heard, we recommend that EEOC and NLRB confer and consult in a good faith effort to determine what conflicts may exist, and as necessary, work together to harmonize the interplay of federal EEO laws and the NLRA.”
The Task Force report includes a series of observations regarding employer harassment reporting and investigations systems.
“Based on what we have learned over the last year, we believe there are several elements that will make reporting systems work well and will provide employees with faith in the system. These are largely consistent with the recommendations made above regarding the content of an effective anti-harassment policy:
Employees who receive harassment complaints must take the complaints seriously.
The reporting system must provide timely responses and investigations.
The system must provide a supportive environment where employees feel safe to express their views and do not experience retribution.
The system must ensure that investigators are well-trained, objective, and neutral, especially where investigators are internal company employees.
The privacy of both the accuser and the accused should be protected to the greatest extent possible, consistent with legal obligations and conducting a thorough, effective investigation.
Investigators should document all steps taken from the point of first contact, prepare a written report using guidelines to weigh credibility, and communicate the determination to all relevant parties.”
The report synthesizes the Task Force’s recommendations regarding harassment reporting systems, investigations, and corrective actions as follows:
“In light of what we have learned in this area, we offer the following recommendations:
Employers should adopt and maintain a comprehensive anti-harassment policy (which prohibits harassment based on any protected characteristic, and which includes social media considerations) and should establish procedures consistent with the principles discussed in this report.
Employers should ensure that the anti-harassment policy, and in particular details about how to complain of harassment and how to report observed harassment, are communicated frequently to employees, in a variety of forms and methods.
Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
Employers should periodically "test" their reporting system to determine how well the system is working.
Employers should devote sufficient resources so that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.
EEOC and the National Labor Relations Board should confer, consult, and attempt to jointly clarify and harmonize the interplay of the National Labor Relations Act and federal EEO statutes with regard to the permissible confidentiality of workplace investigations, and the permissible scope of policies regulating workplace social media usage.
Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the behavior(s) at issue and the severity of the infraction. Employers should ensure that discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
In unionized workplaces, the labor union should ensure that its own policy and reporting system meet the principles outlined in this section.
EEOC should, as a best practice in cases alleging harassment, seek as a term of its settlement agreements, conciliation agreements, and consent decrees, that any policy and any complaint or investigative procedures implemented to resolve an EEOC charge or lawsuit satisfy the elements of the policy, reporting system, investigative procedures, and corrective actions outlined above.
EEOC should, as a best practice in cases alleging harassment, seek as part of its settlement agreements, conciliation agreements, and consent decrees, an agreement that researchers will be allowed to work with the employer in assessing the impact and efficacy of the policies, reporting systems, investigative procedures, and corrective actions put into place by that employer. While we encourage EEOC to seek such an agreement when appropriate, we do not suggest that the agency must do so in all instances, or that failure to obtain such an agreement should derail otherwise acceptable settlement proposals.
Groups of employers should consider coming together to offer researchers access to their workplaces to research the effectiveness of their policies, reporting systems, investigative procedures, and corrective actions put into place by those employers, in a manner that would allow research data to be aggregated in a manner that would not identify individual employers.”
AWI recommends the EEOC Task Force report to all of its members, and to the many stakeholders in preventing workplace harassment who are identified in the report. AWI thanks Ms. Oppenheimer, Ms. Perez, Mr. Robbins, and Ms. Warren for their important contributions to the work of the Task Force, and for their many contributions to AWI.
Last Updated on Friday, June 24, 2016 09:11 AM
June 2016 AWI Journal Published
By Susan Woolley, AWI Journal Editor
Greetings AWI Friends and Colleagues,
I am very happy to announce that with this issue the AWI Journal welcomes our first managing editor, Chuleenan Svetvilas. The board created this position to ensure that the editorial process would run smoothly and in a timely manner. (The editor of the Journal, who makes editorial decisions with the publications committee, will remain an AWI volunteer position.) Chuleenan previously worked as the editor and managing editor of California Lawyer magazine, and has a wealth of publishing experience. Please give her a warm AWI welcome!
Leading off this issue, Toronto authors Jennifer MacKenzie and Monica Jeffrey take an in-depth look at recent cases in their article, “Update: Workplace Investigations in Canada.” It will be a good resource for Canadian practitioners and an introduction for Americans who are unfamiliar with Canadian jurisprudence. Their discussion of “procedural fairness” is particularly interesting as it addresses the concept of what duty an employer or a third-party investigator might (or might not) have to the subject of investigation.
Next up in these pages is “Opening the Mediator’s Toolbox: Practical Skills for the Investigator,” an article by mediator Milan Slama and attorney Samantha Blake. As workplace investigations continue to develop, it behooves all of us to learn from other neutral professionals. The skills discussed, including the ability to observe, listen, and relate to people, certainly are critical to good investigations practice.
In her article “Keeping the Independence in Internal Investigations,” Elizabeth Gramigna discusses some of the challenges faced by internal investigators. The differences between internal and external investigations are of particular interest to me. I was pleased to observe a robust discussion of this issue at the Institute this spring and I am looking forward to hearing more. I encourage investigators working inside of organizations to speak out (and, of course, to write) about internal investigations and ways in which they differ from externals. We learn the most when we learn from each other.
If you are interested in writing for the AWI Journal, please send a brief one-paragraph description of your proposed article to our managing editor (chuleenan@ gmail.com), who will ensure that I read your proposal. Articles should focus on the work of investigators, including legal issues, practical matters, or similarities and differences between workplace investigations and other fields of endeavor.
In closing, I’d like to give a special thank you to Steve Angelides, who has valiantly worked on the production side of the Journal for years. Without his tireless efforts (when does he sleep?) there would not be an AWI Journal. Luckily, we continue to benefit from Steve’s many talents through his ongoing work with AWI.
California Court of Appeal Upholds Privilege of Impartial Attorney-Investigator’s Report in Case in Which AWI Filed Amicus Brief
The California First District Court of Appeal has upheld the attorney-client privilege protection of an impartial attorney-investigator’s report in Waters v. City of Petaluma, A145437. The Association of Workplace Investigators filed an amicus curiae (friend of the court) brief in the case, on which the court’s opinion was largely based.
The employer in the case, the City of Petaluma, California, had retained the attorney-investigator to use her legal expertise to perform an impartial fact investigation and prepare a report on the findings of the investigation. The impartial attorney-investigator in the case was Amy Oppenheimer, a founding member and past president of AWI. Oppenheimer and the City entered into a retention agreement that provided the investigator “will not render legal advice as to what action to take as a result of the findings of the investigation” but that such advice would be provided solely by the City Attorney.
The plaintiff in the case, Andrea Waters, a former firefighter and paramedic for the City, sued the City for harassment, discrimination, and retaliation, and asked the City for the investigative report in that case. The City claimed the report was protected by the attorney-client privilege. The trial court ruled against the City on the privilege issue on the theory that the attorney-investigator performed a fact investigation and did not provide legal advice.
The City sought review of the trial court’s ruling by the Court of Appeal, which initially declined to review the ruling. The City then appealed to the California Supreme Court, which ordered the Court of Appeal to review the trial court’s ruling. Upon review, the Court of Appeal upheld the attorney-client privilege protection of the impartial investigation report: “…the City established a prima facie claim of privilege by presenting undisputed evidence that Oppenheimer was retained to use her legal expertise to conduct a factual investigation that would, in turn, be the basis for the City Attorney to provide legal advice to the City.” In upholding the privilege, the court found that Oppenheimer performed legal services for the City when she conducted the impartial investigation, even though she did not provide legal advice to the City.
AWI’s amicus curiae brief was filed by Sarah J. Banola and Mark L. Tuft of the law firm Cooper, White & Cooper LLP in San Francisco. As the brief explains, “Even if a lawyer is not hired to provide specific legal advice on whether the conduct at issue violates the law, or on the employer’s legal obligations and potential remedies, findings and conclusions in regard to the factual investigation require the exercise of professional judgment and constitute legal services by the lawyer acting in the capacity of an attorney.”
“Further,” the brief goes on to explain, “any suggestion that because the investigation was intended to be impartial, Ms. Oppenheimer could not be acting as an attorney, fundamentally misconceives the various roles that attorneys play in assisting clients… A conclusion that attorneys may not offer impartial investigations in their capacity as attorneys would deprive clients and the public of an important function that attorneys are especially suited to perform.”
“The reality of modern day legal practice”, the brief continues, “involves lawyers who provide specialized and limited scope legal services like many of AWI members whose practice focuses on performing workplace investigations. The movement towards further specialization and unbundled legal services has been driven by client needs for competent and efficient legal services. Clients should not be deprived of the protection of the attorney-client privilege because they turn to specialists to obtain discrete task representation.”
AWI has been in the forefront of these issues since its inception. In 2011, AWI published a leading article by legal ethics expert Mark Tuft and AWI Board member Lindsay Harris; that article anticipated a number of the issues raised in the Waters case and reached the same conclusions as did the recent Court of Appeal decision. The Court of Appeal decision thus comes as welcome validation of the longstanding guidance that AWI has been providing to its members and the public.
AWI is an international professional association of lawyers, internal human resources professionals, licensed private investigators, and others who perform or have a professional interest in impartial workplace investigations. AWI’s mission is to promote and enhance the quality of impartial workplace investigations.
AWI was founded in 2009 and now has approximately 680 members in the United States, Canada, Australia, and several other countries. AWI publishes a quarterly peer-reviewed professional journal, has annual conferences, and holds three annual week-long training institutes, seminars, and local circles, in various locations in the US and Canada.
“Impartial workplace investigations are of growing importance to the public and are central to AWI’s mission,” said AWI President Sue Ann Van Dermyden.” “We are pleased that the issue in the Waters case was important enough to capture the attention of the California Supreme Court, and that the Court of Appeal agreed with AWI that the attorney-client privilege can apply to such investigations.”
AWI is grateful to Sarah Banola, Mark Tuft, and Lindsay Harris for their excellent work presenting this issue to the court on behalf of AWI.
The Court of Appeal in the Waters case issued its decision as an “unpublished” opinion. However, AWI anticipates that that court will be asked to publish its opinion so it can be cited as precedent in future cases.
Last Updated on Friday, June 24, 2016 10:41 AM
AWI & CAWI Complete First International Institute
The Association of Workplace Investigators (AWI) and the Canadian Association of Workplace Investigators (CAWI) completed their first joint International Training Institute for Workplace Investigators on May 6, 2016 in Niagara-on-the-Lake, Ontario, Canada.
Fifty-six students and fourteen faculty members participated. The students were from across the US and Canada, and from Australia, India, Ivory Coast, and New Zealand. Twenty-four students were human resources professionals, eighteen were lawyers, and fourteen were from other professional disciplines. Seven faculty members were from Canada and seven were from the US.
The Institute runs for four and one-half days. The curriculum includes the AWI/CAWI Guiding Principles for Conducting Impartial Workplace Investigations, Bias, Investigations and the Law, Planning the Investigation, Credibility, Report Writing, Ethics, Non-Human Rights Harassment, Internal Investigations, Protective Investigations, Representatives, Evidence, and Litigation. It also includes a full-day Mock Investigation and Report, and individual student-faculty meetings to review the report.
In 2017 the Institute sessions will be in Monterey, California, in February, Baltimore, Maryland, in May, and Austin, Texas in September. Each Institute session is limited to sixty students. Subscribe to the AWI Weekly for registration updates.