Kathlyn Perez Bethune, JD’s Post

Yesterday, the EEOC published an extensive and comprehensive Enforcement Guidance on Harassment in the Workplace. While I do not always agree with the EEOC's analysis on what would constitute unlawful harassment in a particular scenario, following EEOC guidance, when possible, is a safe bet to avoid employment law troubles. One piece of the Guidance addresses investigations, an area where employers sometimes fail to take appropriate steps, which ultimately hurts the employer should a claim arise later. Here is what the EEOC says constitutes "prompt" and "adequate" investigation. PROMPT: "An investigation is prompt if it is conducted reasonably soon after the employee complains or the employer otherwise has notice of possible harassment. Clearly, an employer that opens an investigation into a complaint one day after it is made has acted promptly. By contrast, an employer that waits two months to open an investigation, absent any mitigating facts, very likely has not acted promptly. In many instances, what is “reasonably soon” is fact-sensitive and depends on such considerations as the nature and severity of the alleged harassment and the reasons for delay. For example, when faced with allegations of physical touching, an employer that, without explanation, does nothing for two weeks likely has not acted promptly. ADEQUATE: An investigation is adequate if it is sufficiently thorough to “arrive at a reasonably fair estimate of truth.” The investigation need not entail a trial-type investigation, but it should be conducted by an impartial party and seek information about the conduct from all parties involved. The alleged harasser therefore should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. If there are conflicting versions of relevant events, it may be necessary for the investigator to make credibility assessments to determine whether the alleged harassment in fact occurred. Accordingly, whoever conducts the investigation should be well-trained in the skills required for interviewing witnesses and evaluating credibility. You heard it here from the EEOC: when allegations of harassment arise in the workplace, engage a well-trained investigator to help the company determine what happened and to support the company's defense in any later action. https://lnkd.in/gfpXHb9H #employmentlaw #workplaceinvestigations #eeocguidance

The impact of AI on workplace investigations has been top of mind for me and likeminded practitioners. Many workplace investigators are eyeing AI as a potential tool for assisting with investigations (including witness question generation, transcribing interviews, summarizing interviews, reviewing large amounts of data, etc). As this article points out, AI is also a potential tool for witnesses to build AI-generated evidence around their version of events. Inevitably, this will make our jobs as outside investigators more critical, difficult, and costly. Two recent investigation examples come to mind. ⚡️In one, a careful study of texts messages produced by witnesses revealed one witness altered portions of his texts to try and minimize his role in certain events. Though he was not the accused, he received separate discipline for his conduct in the investigation. ⚡️In another, the accused's defense to the claimant's allegation of sexually inappropriate text messages was that he had not sent any such messages and the claimant had generated the messages using an app or AI. This trend is poised to create a specialized field where consultants collaborate with outside investigators to uncover or validate the use of AI or other deceptive tactics in altering evidence. Employers must proactively address this paradigm shift by implementing policies addressing witness candor and conduct during investigations. These policies should encompass the various ways witnesses might manipulate or generate evidence to align with their narrative. #aiininvestigations #workplacesinvestigations #aiinhr https://lnkd.in/gHd43UGc

Nearly four years since the start of COVID, employers are still grappling with its enormous impact on the workplace. So many clients and business owners have asked me how to get their employees back to the office. In each workplace, there are so many factors that go into the strategy; it is not one size fits all. I talk a lot about the pendulum swinging between the employer and employee power dynamic in workplace. At least for now, the pendulum seems to be swinging back towards employers, which gives them the leverage to bring employees back to the office, especially when many other businesses are doing the same. Keep what works about your flexible work policies but create boundaries around workplace expectations, including presence at the office. https://lnkd.in/gfk8S8WH

Sometimes employers are reluctant to investigate employee complaints for fear of opening Pandora's box, usually in the form of additional employee complaints once employees realize they have the attention of a neutral outside investigator. Though difficult, creating a "speak up" culture is important to avoid later uncovering more serious and risky employment issues (discrimination, harassment, retaliation, coverups for illegal or unethical behavior). When employees are encouraged to raise issues no matter how big or small without fear of reprisal, employers can sometimes get ahead of issues like those alleged to have occurred at the Cleveland Ballet. This case initiated with a complaint by a former employee about "body-size discrimination" which allegedly did not result in an investigation until the media got wind of the story. According to the story, once the Board did initiate the investigation, it uncovered numerous "serious and disturbing allegations" surrounding the ballet and the investigation ultimately found a "pattern of intimidation and retaliation against dancers and staff, egregious misconduct, financial irregularities, and self-dealing."  Take aways: (1) create a speak up culture so that people feel comfortable coming forward before there is a systemic egregious issue (like 16 sexual misconduct allegations) and (2) launch a neutral investigation when you receive a complaint, before the media spotlight is upon you. If the ballet in Cleveland had done this, perhaps they could have kept the spotlight on their dancers and not their leaders' misconduct. #workplaceinvestigations #employmentlaw https://lnkd.in/gW6W2Tmi

Looking for some recommendations for a headhunter/recruiter with expertise in recruiting higher level state and federal government positions. Please DM me any recommendations. TIA!

One of the more difficult issues my clients face is administration of FMLA, ADA and various other policies and benefits like STD, LTD and worker’s compensation. Tune in for tips and best practices for navigating this minefield and for working with TPAs to ensure full compliance.

Great summary of all the reasons women like me are starting their own firms to do it their own way! So far so good!

I wrote this article last week at the request of a prominent on-line legal publication after they noticed my LinkedIn post about this case. Today I was informed my article did not contain enough "legal" analysis so they will not publish it. For those who take the time to read it, it describes the claims made (disparate treatment and disparate impact, state and federal law), the potential defenses, the missing information that will be necessary to support the claims, and comparative research. It meets their 700 word limit - not sure how it could have contained more with that constraint. I do not pre-judge cases; anything can be alleged in a lawsuit. My current practice involves investigating these types of complaints and they are complex and cannot be rendered into a comprehensive analysis in 700 words or less solely based on allegations. My conclusion was from that perspective: the school has been aware that the data has shown pay disparities for many years; the school appears to have done little to address it and now faces a significant claim that at the very least will likely damage its reputation with students, alumni, and the community. That is my current "legal" opinion. Would love to know your thoughts on how "non-legal" my article is. That's all. Self-publishing is so easy. Thanks, LinkedIn. More people in my network may read this article on LI than would have read or seen it on their website. #employmentlaw #legalperspective #vassar #genderpayequity