1 © Copyright 2015 All Rights Reserved Presented by: Jennifer B. Sandberg Terri Stewart Direct: (404) Direct: (404) Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport · Houston · Irvine · Kansas City · Las Vegas Los Angeles · Louisville · Memphis · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego San Francisco · Seattle · Tampa · Washington, DC Employment Law: Compliance to Litigation Preparation and Everything in Between

2 © Copyright 2015 All Rights Reserved Today’s Topics Keeping Compliance From Keeping You Up At Night Investigations and Early Litigation Preparation – Minimize Risk and Avoid Common Pitfalls

3 © Copyright 2015 All Rights Reserved Keeping Compliance From Keeping You Up At Night Presented by : Jennifer B. Sandberg Direct: (404)

4 © Copyright 2015 All Rights Reserved Compliance Concerns Ensuring you’re not a Federal Government Contractor Curing merger and acquisition blues Keeping up with paid sick leave Correctly completing the world’s most difficult one page form Understanding that the FCRA covers more than credit Catching wage-hour nightmares you don’t know exist Ensuring leave management is under control

5 © Copyright 2015 All Rights Reserved Ensuring You’re Not A Federal Government Contractor Check your EEO-1 reports Interview the sales team Study your customers Check usaspending.gov Review your contract database

6 © Copyright 2015 All Rights Reserved Curing Merger and Acquisition Blues Try to find time for employment overview pre-close Learn the new business Coordinate/consolidate policies/practices

7 © Copyright 2015 All Rights Reserved Keeping Up with Paid Sick Leave States/Cities require PSL States/Cities considering PSL Feds considering PSL Government contractors preparing for PSL as of January 1, 2017

8 © Copyright 2015 All Rights Reserved Correctly Completing Form I-9 Train your team Audit their work Consider an electronic system

9 © Copyright 2015 All Rights Reserved Understanding the FCRA Covers More Than Credit Really? Really! Review your information sources and processes Audit your 3 rd party vendor

10 © Copyright 2015 All Rights Reserved Catching Wage-Hour Nightmares You Don’t Know Exist Conduct a self-audit –gift cards –bonuses –erroneous job titles –time clock programming –training/meetings –working through lunch

11 © Copyright 2015 All Rights Reserved Ensuring that Leave Management is Under Control Aspirations vs. Actual Interview your Leave Administrator Interview your front line supervisors and managers Audit your 3 rd party vendor

12 © Copyright 2015 All Rights Reserved Investigations and Early Litigation Preparation – Minimize Risk and Avoid Common Pitfalls Presented by : Terri Stewart Direct: (404)

13 © Copyright 2015 All Rights Reserved Importance of a Robust Early Investigation Preserve a legally-compliant workplace Maintain respectful, positive environment Retain (and attract) employees Analyze legal liability Minimize legal liability Provide a defense in lawsuits Build reputation and profitability

14 © Copyright 2015 All Rights Reserved Process Steps Initial complaint Planning the investigation Preliminary interview with complainant Emergency interim steps Conducting interviews Documenting the process and result Arriving at a conclusion Making a recommendation to management Implementing investigation results

15 © Copyright 2015 All Rights Reserved Initial Complaint What type of complaint is it? Take all complaints seriously Methods of complaints Supervisory knowledge of alleged violations Anonymous complaints

16 © Copyright 2015 All Rights Reserved Planning the Investigation Logistics Checklist Who should investigate? Who should be interviewed? What should be said to interviewees? Time, date, location, order of interviews? Union issues? Review documents Preparing, and anticipating, questions

17 © Copyright 2015 All Rights Reserved Who Will Investigate? Internal –Human Resources –Risk management/security –Manager –Outsider from “corporate” External –Private investigator –Consultant –Lawyer

18 © Copyright 2015 All Rights Reserved What Will Be Said To Interviewees? Duty to investigate Investigation process, timing, etc. Confirm no bias Expect cooperation Limited confidentiality No retaliation Contact information

19 © Copyright 2015 All Rights Reserved Interview with Complainant Ask questions to gather facts Is an interview appropriate? Open-ended questions No leading questions Determine basis for allegations (first-hand? text message?) Any witnesses? Others affected? Any documentation? Other issues?

20 © Copyright 2015 All Rights Reserved What Next? Possible interim emergency steps: –Imminent danger to health, safety, property, environment, personal dignity –Allegations of violence, threats, certain harassment, retaliation, whistleblowing, criminal acts –Options for immediate actions Is a formal investigation necessary?

21 © Copyright 2015 All Rights Reserved Arriving at a Conclusion Evidence Credibility Previous behavior Logic and consistency Applicable policies Compare notes Testimony of multiple interviewees Interview additional witnesses Reasonable belief standard

22 © Copyright 2015 All Rights Reserved Implementing Results If cannot conclude policy violation occurred If conclude policy violation occurred: –Comparable situations/Performance history –Discipline, discharge, monetary actions – Training and communications Informing complainant (and others) of conclusion –Close-out meetings and memoranda –Location and order of meetings –Security issues –Communications to others –Litigation hold –No retaliation and confidentiality issues

23 © Copyright 2015 All Rights Reserved A Few Final Thoughts Situations are unique But, common elements in every investigation Pay attention to details such as: –Communications –Documentation –Affidavits? Insure no retaliation and confidentiality

24 © Copyright 2015 All Rights Reserved A Few Final Thoughts The Lawyers Role Take the emotions out of the process Instill confidence in client Manage the process Anticipate and plan for issues and/or case defense –Position statement –Offer of judgment –Early resolution Keep an eye on the “record” Assist with risk management decisions

25 © Copyright 2015 All Rights Reserved Thank You! Presented by: Jennifer B. Sandberg Terri Stewart Direct: (404) Direct: (404) Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport · Houston · Irvine · Kansas City · Las Vegas Los Angeles · Louisville · Memphis · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego San Francisco · Seattle · Tampa · Washington, DC