ABA Article re Attorney Investigator

The attached ABA article, entitled “$300,000 Sanctions Award in Title VII Case Reignites Rule 3.7 Discussion,” should serve as a cautionary tale to companies that use legal counsel (either in-house or outside) to investigate personnel complaints.  The featured case resulted in a mistrial and a $300,000 sanctions award in favor of the EEOC and jointly against the employer/law firm because the employer failed to produce the notes of the attorney-investigator who investigated the employee’s harassment, discrimination and retaliation complaint.   The investigator was an attorney with the law firm that represented the employer in the lawsuit filed by the employee who made the complaint.  Because the employer relied on the investigation and its response as a defense to the discrimination claims, the court found the investigator was a fact witness and the investigator’s notes were discoverable.  As a result, the law firm was ethically conflicted from continuing to represent the employer in the lawsuit.

Bottom line – think carefully when selecting an investigator to investigate personnel complaints.  A court may very well conclude the investigator is a fact witness and that his/her investigation notes and  communications will be discoverable.  Given this prospect, you should avoid picking an attorney-investigator if you anticipate engaging that same attorney (or the attorney’s law firm) to represent the company in a legal proceeding related to the investigated complaint.

I regularly serve as outside counsel or independent investigator in connection with a wide variety of personnel complaints and would be happy to serve in either role for your organization or clients.

Last month, the Arizona Court of Appeals adopted a narrow view of the enforceability restrictive covenant agreements in a case brought by Orca Communications Unlimited, LLC (“Orca”) against its former President, Ann Noder.  Orca alleged that Noder started a competitive business and solicited Orca customers in violation of the restrictive covenant agreement (the “Agreement”) she signed during her employment at Orca.

The court struck down the confidentiality, non-compete and non-solicitation covenants contained in the Agreement, finding “the covenants restrict too much information and too much activity.”  For example, the Court held that the definition of confidential information was too broad because it included public information that was only  available through “substantial searching of published literature” or that had to be “pieced together” from a number of publications or sources, as well as any information that Noder came across during her employment at Orca.  Also, the customer non-solicitation provision was deemed too broad because it prohibited the solicitation of persons or entities Orca was “planning to solicit” and former Orca customers.

While the court rejected Orca’s breach of contract claim, it allowed several business tort claims to proceed against Noder based on her alleged disloyal conduct before she resigned. 

Although the Orca case is subject to further appellate review, it is the current law in Arizona and should prompt review of your company’s restrictive covenant agreements to ensure compliance with this new legal standard.  

The Department of Labor (“DOL”) has issued new FMLA forms.  These forms include the Notice of Eligibility and Rights & Responsibilities Form (WH-381) and the various certification forms that an employee must have completed to qualify for FMLA leave for the employee’s own medical condition or to care for a qualifying family member. The DOL has also published a new FMLA poster that employers are required to post in their work sites. The FMLA forms and the poster can be found by clicking on he attached link.  

http://www.dol.gov/whd/fmla/index.htm

The U.S. Immigration and Customs Enforcement has published the new Employment Eligibility Form I-9.  The new Form must be utilized by no later than May 7, 2013.  A copy of the form can be found by clicking on the attached link.

http://www.uscis.gov/files/form/i-9.pdf

It is recommended that you start using these forms immediately.

Effective January 1, 2013, Arizona’s Minimum Wage will increase to $7.80/hour for the vast majority of employers. Attached is the required AZ Minimum Wage Act poster that must be posted in a conspicuous place that is accessible to employees.

Labor_MinWag_MinimumWagePoster_2013_English

The National Labor Relations Board (NLRB) has aggressively pursued unfair labor practice charges against employers that have issued social media policies that the NLRB contends infringe on employees' right to engage in concerted, protected activity.  This flurry of charges has created confusion and concern in the employer community as to the extent of control they can exercise over their employees' use/abuse of social media in a way that is harmful to the employer or its employees.  In an effort to assist employers strike the right balance between prohibiting illegal or harmful activities and protecting the employees' NLRA rights, the NLRB has issued a model "Social Media Policy" (see attachment).  While this model policy may not go as far as employers would like, it does set certain expectations of employee professionalism in using social media that employers should find useful.  And, because this policy has been "blessed" by the NLRB, an employer who adopts it will not be vulnerable to an NLRA charge. 

NLRB Model Social Media Policy