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What are a Company's legal obligations Upon Receipt of an Attorney Letter claiming the Company Violated Employment laws?
Of course, requesting that an attorney provide all evidence that supports purported claims should be provided to the employer so that you can fully evaluate them, however, it is not required by law. Once legal action is commenced and written discovery requests are served by your Company on the employee, there is no legal obligation for the attorney, and/or his client, to produce anything.
However, the letter does trigger several legal obligations including, identifying and preserving all potentially relevant evidence related to the subject matter (i.e., employee and issues) and informing all persons who may be in possession of such information of the same, which should be done at the direction of experienced employment counsel.
In addition, depending on the claims raised by the attorneys’ letter, you may be legally required to conduct an investigation of the allegations which would allow you to request that the employee participate in the investigation.
Mandated or not, we strongly suggest that an investigation be conducted by counsel immediately so that you can fully evaluate the claims, potential liability, exposure, defenses, potential cross claims so that you can determine how you wish to proceed. Even baseless claims are expensive to defend so it is always best advised to retain counsel to investigate upfront and fully respond to any lawyer letters.
Unqualified Exempt Employee Required to Train under Supervisor is Claiming Wage and Hour Violations While Not Even Working.
You state, "One of our newly hired exempt salaried employees who is still in the probationary period oversold his/her qualifications. We are now requiring that the employee participate in additional training, while performing tasks that must be reviewed by his supervisor. He is rarely at his desk, not responsive to criticism, stays late and is always emailing about his breaks, despite being a salaried employee. He is now telling co-workers that the Company is violating wage and hour laws. What can we do?"
The unqualified, under performing employee who knows just enough about the laws to create claims is always troublesome to employers. The key is to manage the situation correctly from the outset and not allow issues to snowball as is the case here that now puts the Company on the defense.
If the employee oversold his/her qualifications for an exempt position that now requires him/her to participate in training and perform tasks assigned under tight supervision, then the employee must be reclassified as a non-exempt employee during the interim time period. That said, it does not mean the employee can manipulate the wage and hour laws by goofing off during work hours and purposefully delay or miss breaks creating liability. Since the employee’s duties during this time period have now changed, it is important to obtain a signed document, such as a performance improvement plan, that sets forth exactly what is expected of the employee, addressing the issues that you have identified, including, designated work hours, break times, and required authorization for working overtime, as well as setting a firm date for re-evaluation.
Since the employee has now claimed that the Company has violated wage and hour laws, you have an obligation to investigate this also. If the employee is claiming unpaid overtime, breaks etc., the employee still has the burden of proving it. It is critically important that you properly document everything that has occurred from hiring until now, substantiate all of the shortfalls, and investigate the wage claims giving every benefit to the employee to refute retaliation claims.
Anonymous Sexual Harassment Complaint Involving Executives who are Demanding Action. What Should the Company Do?
Anonymous or not, a California employer is legally obligated to conduct a prompt, thorough investigation of potential unlawful harassment claims, regardless of who made them. The mere fact that the complaint was anonymous strongly suggests that the complainant fears retaliation. Your statement that “the accused executives are demanding action” suggests that the accused executives have been informed of the allegations, but either they have not been informed (preferably in writing) or have blatantly disregarded the admonition of no retaliation. The accused persons are prohibited from retaliation against any person who has complained, any person believed to complain, any person who experienced, observed or witnessed alleged unlawful conduct, or any person who participates in any way in an investigation of the allegations.
Why Does our Company Need to Retain an Outside Workplace Investigator?
Anytime an investigation is conducted by an internal employee who is compensated by the Company, the investigation is likely to be challenged, although it does not hold much weight if the investigator is qualified, well-trained in conducting workplace investigations, has no involvement with the issues raised or key persons involved, and the documentation of the investigation is legally-compliant.
While retaining outside unaffiliated trained investigators is highly recommended in all investigations to best refute attacks, the examples below, are the most frequently encountered circumstances in which we strongly recommend retention of an outside investigator:
- The employer is notified of anticipated litigation (i.e., notice of an administrative charge, lawsuit, secondhand rumors that an employee is suing, an attorney letter, or reporting by an employee, where it is suspected that an attorney has been retained);
- No one employed by the Company is qualified and trained in conducting legally-compliant workplace investigations and the legal issues raised;
- Any of the key persons involved include high-level executives, the internal employee was involved in conduct previous investigations;
- The issues raised involve high-specialized, confidential and/or significant issues and/or potential corporate, criminal and/or personal liability; and
- Review of documentation related to prior workplace investigations conducted by internal employees evidence deficiencies.
While the time and cost of retaining an outside investigator is never loved by employers, the benefits are significant anytime the employer is on notice of anticipated legal action.
The qualified investigator who has no prior affiliation with the parties is the best person to testify about the investigation and findings, establish the employer’s affirmative defenses that can defeat certain claims, and even limit liability. Most importantly, a well-documented investigation conducted by an outside trained investigator may discourage attorneys from pursuing legal actions, or quickly resolve them.
Company's High-Revenue Male Producer is Punishing Female Employees believed to Complain. What Do We Do?
You have stated: "We don’t know what to do. All but one of the female employees in our office has complained to us that our number one male sales executive is highly abusive, offensive, “touchy feely” and embarrasses them while openly joking around with other males in the office. We have spoken to him repeatedly, and it now seems he is punishing the ones he believes complained. No one will dare speak to any of us about it for fear of having to endure even worst conduct, such as staying late, doing menial tasks, etc. We are worried about liability, but our revenues depend on him."
The high revenue producer who has loose lips is one of the most common calls we receive. No matter how many times the employer counsels the accused, the conduct either does not stop, or, as in this example, adds an additional claims of retaliation, failure to prevent unlawful harassment and retaliation, and negligent supervision/retention, to name just a few. The employer is right to worry about liability here, because this is the type of fact pattern that causes California juries to award high punitive damages award.
This does not mean the employer should terminate the high producer on the spot, and in fact, should not, or face claims by the terminated high producer. At this point, the employer must immediately launch a confidential attorney-client privileged investigation of the female employees’ allegations. In these situations, we recommend that the client retain an experienced employment attorney trained in workplace investigations, to properly conduct the investigation under the attorney-client privilege. The investigator acts as a fact-finder. Upon conclusion of the investigation, we are in the best position to analyze the allegations, claims and recommend how to proceed as to all parties involved. The employer’s obligation is to end harassment, discrimination and retaliation. Depending on the allegations, the high producer’s responses, and conclusions reached, there are a variety of corrective actions that the employer may impose short of termination, so long as it stops the conduct.
While the time and cost of conducting investigations is not well-received by employers, the benefits are significant. Not only are investigations mandated by law, if not done right, creates additional liability for employers. Given the importance of the high producer to your Company, it is extremely important that the investigator have no affiliation with the Company.