Discipline, Internal Investigations and Grievances

This Note addresses employee performance reviews, including the benefits and potential risks of conducting reviews, how reviews can be used in employment litigation and practical tips for conducting effective reviews. This Note addresses federal law. For information on state law requirements, see the State Q&A Tool under Related Content to the right.

This Practice Note outlines special obligations for private sector employers that discipline and discharge employees in a unionized workplace. These obligations flow from the National Labor Relations Act (NLRA) as enforced by the National Labor Relations Board (NLRB), and collective bargaining under the NLRA. Labor law in the private sector is primarily governed by federal law, including the NLRA and the Railway Labor Act (RLA), and this resource only covers the NLRA. This Note includes references to NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

A Note describing internal investigations into employee misconduct, including the types of workplace issues warranting an investigation, legal risks associated with conducting an investigation and best practices for conducting an investigation. This Note outlines the steps to be taken when conducting an internal investigation and post-interview activities. This Note addresses federal law.

This Note outlines special obligations for private sector employers that conduct investigative interviews of employees in a unionized workplace. These obligations flow from the National Labor Relations Act (NLRA) as enforced by the National Labor Relations Board (NLRB). Labor law in the private sector is primarily governed by federal law, including the NLRA and the Railway Labor Act (RLA), and this resource only covers the NLRA. This Note includes references to NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

A standard form for employees to inform an employer about complaints of alleged discrimination or harassment in the workplace. This Standard Document has integrated notes with important explanations and drafting tips. It complies with federal law. For information about state law on discrimination and harassment, see the State Q&A Tool under Related Content to the right.

A standard form for recording details relevant to an employee counseling session for poor work performance or workplace misconduct. This Standard Document applies only to private, non-unionized workplaces. It is jurisdiction neutral. State or local law may impose additional or different requirements but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

An agreement that allows parties with similar legal interests, who are involved in an investigation or legal proceeding, to share information with each other without waiving the attorney-client privilege, work product protection or other applicable privilege or protection. This agreement may also protect against the disqualification of one party's counsel as a result of sharing confidential information with the other parties to the agreement. This Standard Document has integrated notes with important explanations and drafting tips.

A memorandum from in-house counsel advising company employees on how to maintain the attorney-client privilege over their communications with the company's attorneys, and further explaining the nature of counsel's relationship with the company and its employees.

Model questions for interviewing the complaining employee, witnesses and the alleged harasser when investigating a sexual harassment complaint. This Standard Document has integrated notes with important explanatory and drafting tips. This Standard Document is based on federal law, including Title VII of the Civil Rights Act of 1964. For information on state law requirements, see the State Q&A Tool under Related Content to the right.

Guidelines for supervisors when listening and responding to employee concerns about workplace problems. This Standard Document has integrated notes with important explanatory and drafting tips.  

Social media guidelines for a public company for both personal social media use and social media use as an authorized company spokesperson. These guidelines incorporate social media best practices under US securities and disclosure laws and regulations. This Standard Document has integrated notes with important explanations and drafting tips, including discussion of the impact of National Labor Relations Board (NLRB) review of social media policies. 

This Standard Clause can be included in a collective bargaining agreement (CBA) to set out standards for, and reserve rights for employers to, discipline and discharge union-represented employees. It is based on the National Labor Relations Act (NLRA), but may be used by private sector employers governed by another federal law or public sector employers. This Standard Clause has integrated drafting notes with important explanations and negotiating tips.

A Checklist of best practices for employee discipline, including for poor performance, inappropriate conduct, policy violation and unlawful activity, as well as for creating related policies and procedures.

A Checklist of issues for employers to consider when determining whether they may lawfully discipline or terminate a unionized or nonunionized employee for objectionable social media postings. Factors include whether the postings constitute protected concerted activity under the National Labor Relations Act (NLRA), as well as consideration of state laws protecting lawful off-duty conduct. The Checklist is jurisdiction-neutral. This Checklist references NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

A Checklist to help employers minimize the legal risks presented by employer-sponsored holiday parties. This checklist addresses sexual harassment prevention, avoiding harms created by alcohol consumption, workers' compensation liability, and wage and hour claims. This resource is jurisdiction-neutral. For information on state law requirements, see the State Q&A Tools under Related Content to the right.

A Checklist of issues and obligations for employers to consider when investigating employee misconduct and determining whether to discipline or discharge a unionized employee. It addresses special obligations for private sector employers that conduct investigative interviews of, and discipline, unionized employees. These obligations flow from the National Labor Relations Act (NLRA) as enforced by the National Labor Relations Board (NLRB), and collective bargaining under the NLRA. Labor law in the private sector is primarily governed by federal law, including the NLRA and the Railway Labor Act (RLA), and this resource only covers the NLRA.

A Checklist of steps to take when responding to Equal Employment Opportunity Commission (EEOC) charges, particularly sexual harassment charges. This Checklist addresses federal law. For information on state law requirements, see the State Q&A Tool under Related Content to the right. 

An expert Q&A with Rob Porcarelli of Starbucks Coffee Company on best practices in light of the National Labor Relations Board (NLRB)'s recent holding that employers may not ask employees not to discuss ongoing investigations.

In Leshinsky v. Telvent GIT, S.A., the US District Court for the Southern District of New York held that a plaintiff employee made out a prima facie case of retaliation against a whistleblower under Section 806 of the Sarbanes-Oxley Act of 2002 (SOX) when he was terminated after reporting a suspected violation to his supervisor. In so holding, the court clarified the definition of protected activity under the whistleblowing provision.

In Bechtel v. Administrative Review Board, the US Court of Appeals for the Second Circuit clarified the burden-shifting framework applicable to whistleblower retaliation claims under the Sarbanes-Oxley Act of 2002 (SOX). The Second Circuit denied the petitioner employee's petition for review, holding that the Administrative Review Board (ARB) did not act arbitrarily or capriciously, or abuse its discretion, when it affirmed the decision of the Administrative Law Judge (ALJ) dismissing the petitioner's complaint.

This Legal Update highlights resources to help employers manage requests by employees to access their personnel files.

President Obama signed into law the National Defense Authorization Act for Fiscal Year 2013 (NDAA), which expands whistleblower protections for employees of contractors and subcontractors with the Department of Defense (DOD) and the National Aeronautics and Space Administration (NASA) and establishes a four-year pilot program to enhance whistleblower protections for most other federal contractors and subcontractors.

This Legal Update offers best practices tips for avoiding liability connected to an employer-sponsored holiday party.

The US Department of Labor's Occupational Safety and Health Administration (OSHA) announced the launch of a pilot alternative dispute resolution (ADR) program for whistleblower complaints filed with its Whistleblower Protection Program.

This Law Firm Publication by Jackson Lewis LLP discusses Assembly Bill 1844 and Senate Bill 1349, two bills signed by California Governor Jerry Brown on September 27, 2012. Assembly Bill 1844 limits when employers may ask applicants and employees for their social media passwords and account information, although the law allows employers to ask an employee to reveal personal social media activity that it reasonably believes is relevant to an investigation into employee misconduct. Senate Bill 1349 creates similar prohibitions for postsecondary education students. The laws take effect on January 1, 2013.

In Banner Estrella Medical Center, the National Labor Relations Board (NLRB) held that an employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by asking employees who make complaints not to discuss ongoing investigations with co-workers.    

The Occupational Safety and Health Administration (OSHA) issued final regulations on July 9, 2012 on the whistleblower provisions of the Consumer Product Safety Improvement Act of 2008, establishing the final procedures and time frames for handling retaliation complains under the Act.

The US Court of Appeals for the Second Circuit recently issued a decision in NLRB v. Starbucks Corp., ruling that Starbucks could prohibit its employees from wearing more than one pro-unionization button on their work clothes.  The Second Circuit reversed the holding of the National Labor Relations Board (NLRB) that Starbucks's policy was an unfair labor practice. 

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the Arizona Court of Appeals' recent holding in The Salvation Army v. Bryson, that attorney-client privilege under Section 12-2234 of the Arizona Revised Statutes covers any communications between a corporate lawyer and corporate employees made to obtain information in order to provide legal advice to the entity, employer or employee. The decision confirms that the Arizona legislature intended to expand attorney-client privilege beyond communications regarding a corporate employee's own conduct in the scope of his employment.

The SEC has released its Annual Report on the Dodd-Frank Whistleblower Program for fiscal year 2011.

An updated Whistleblower Investigations Manual has been issued by the Occupational Safety and Health Administration (OSHA). The new manual includes updated guidance for OSHA's handling of retaliation complaints under the whistleblower provisions of 21 statutes.

In Reynolds v. Dept. of the Army, the US Court of Appeals for the Third Circuit held that a performance improvement plan, standing alone, is not an adverse employment action under the Age Discrimination in Employment Act.  The Third Circuit is now in accord with the Seventh, Eighth and Tenth Circuits on this issue.