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Call for Articles
The AWI Journal is seeking proposals for articles to be published in the quarterly publication of the Association of Workplace Investigators. AWI Journal articles focus on the many different aspects of workplace investigations, such as legal issues (how the law applies to the work of investigators), practical matters, similarities and differences between workplace investigations and other fields of endeavor, and developments in the law.
Articles include: 1.) substantive feature articles (3,000 to 5,000 words) usually authored by an attorney or a human resource professional; 2.) case notes (900 words), shorter articles focusing on recent legal decisions or laws and their potential impact; and 3.) articles that examine past employment laws or court decisions that affect workplace investigations today (900 to 2,000 words).
Our readership spans 35 U.S. states and territories, Canada, and a few other countries, so please no local issues unless they have larger implications on workplace investigations.
The AWI Journal is read by all members of the Association of Workplace Investigators, a professional membership association for attorneys, human resource professionals, private investigators, and many others who conduct, manage, or have a professional interest in workplace investigations. Some of our members are internal workplace investigators who work inside a company, and some are external investigators. AWI's mission is to promote and enhance the quality of impartial workplace investigations. For more information, please visit our website www.awi.org.
If you would like to write an article, please send a brief one- or two-paragraph description to editor Susan Woolley at email@example.com. If you have URLs to previously published articles that are relevant to your pitch, please include them in your email. Please do not send unsolicited manuscripts.
AWI has begun the process of transitioning its management from SBI Association Management to a stand-alone staff with a permanent Executive Director.
SBI is an accredited association management company located in Seattle, Washington. SBI has been managing AWI for the past 18 months. Andrew Estep, CAE, of SBI, has been serving as AWI's Executive Director.
During this transition Stephen Angelides, JD, MPP, CAE, who previously served as AWI's Executive Director, and has been serving as AWI's Training Administrator, will again be serving as Executive Director, on an interim basis. AWI's staff will consist of Joan Hamasu, who has returned to AWI as Membership & Events Coordinator, and a new Education & Communications Coordinator. AWI is currently recruiting for this new position. The next step in the transition will be recruiting a permanent Executive Director.
"AWI is grateful to Andrew and the entire SBI team for the growth in membership and programs AWI accomplished over the past 18 months under their guidance," said Sue Ann Van Dermyden, AWI's President. "We are also pleased that Steve is willing to step back in as Executive Director on an interim basis as we grow our own staff and recruit a permanent Executive Director," Ms. Van Dermyden said.
"SBI remains grateful for the opportunity to serve AWI, and our team enjoyed meeting members, learning about the emerging profession of Workplace Investigators, working with leadership to implement growth initiatives. We wish AWI all the best in the future!" says Marlis Korber, President of SBI.
The first phase of AWI's management transition, from SBI to AWI's stand-alone staff, is currently underway and should be completed within the upcoming month. The second phase of the transition, to a permanent Executive Director, should be completed within the upcoming year. Further details will be announced on the AWI website and in the AWI Weekly email newsletter as the transition progresses.
2016 AWI Annual Conference
Registration is now open for the 2016 AWI Annual Conference! Conference! This year the annual conference will be held on November 3-5 at the Sofitel Hotel San Francisco Bay. The theme is Innovations in Investigations. AWI is committed to bringing workplace investigators from around the world together to exchange information and ideas, and the annual conference is a great way to learn, network, and catch up with colleagues. Visit our conference webpages for more information about pricing, the hotel, and sponsorship opportunities.
We'll see you in San Francisco!
Last Updated on Monday, August 01, 2016 09:10 AM
California Court of Appeal Orders Waters Opinion Published
The California Court of Appeal has ordered that its opinion in City of Petaluma v. Superior Court (Waters), A145437, be published.
In the opinion the court upheld the attorney-client privilege protection of an impartial attorney-investigator’s report. The Association of Workplace Investigators (AWI) filed an amicus curiae (friend of the court) brief in the case.
The court had originally issued the opinion as an “unpublished” opinion on June 8, 2016, which meant that it could not be cited as precedent in other cases. But the employer in the case, the City of Petaluma, California, and other participants in the case including AWI, filed requests for publication. On June 30, the court decided that these requests showed good cause for publishing the opinion, and ordered that it be published. As a result, the opinion can now be cited as precedent in future cases.
The City 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” and 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 as to which course of action to take.
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 in the Waters case and reached the same conclusions as did the Court of Appeal. 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 700 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, that the Court of Appeal agreed with AWI that the attorney-client privilege can apply to such investigations, and that its opinion can now be cited as precedent in future cases. 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.”
Last Updated on Friday, July 01, 2016 11:10 AM
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.