Preparing Discovery Requests and Responses

Discovery is always critical in employment cases, and in discrimination cases in particular. Intent is difficult to prove, and many of the facts are in the possession of the employer only. Often, for example, employers decline to give employees the actual or complete reasons for an employment decision, and employees usually do not have access to their personnel files until they are requested in discovery.

The usual discovery tools-depositions, document requests, interrogatories, and requests for admissions-are all commonly used in employment cases.

Drafting and Distributing Legal Hold Memoranda

In general, legal hold notices are not discoverable because they constitute attorney-client privileged communications and contain material protected from disclosure under the work product doctrine. For instance, counsel prepares the hold notice, which is distributed to persons with relevant knowledge (who may be required to execute an acknowledgement of receipt). The substance of the hold notice generally discusses the nature of the matter and may include strategic considerations and/or the party's legal position. The substance of the hold notice also advises of the obligation to preserve relevant documents and data, identifies the relevant documents and data to be preserved, sets forth the steps to ensure preservation, and cautions against failure to abide by the notice. Therefore, the hold notice prepared by an attorney, which may contain the attorney's thoughts and impressions about the dispute and communicates advice and direction to the client regarding preservation obligations, is typically not discoverable.

Investigation and Corrective Action Mistakes

The traps for employers conducting investigations are many.  Some of these include:

• Not conducting an investigation unless the complainant submits a signed written complaint or demanding that all witnesses provide their statements in writing.
• Not proceeding with the investigation when the complainant or the employee accused of harassment refuses to participate.
• Failing to keep the investigation and all information gathered during the course of the investigation confidential.
• Not assuring the complainant and witnesses, and reminding the employee accused of misconduct that the company has a policy against retaliation.Not reviewing all relevant records and tangible evidence.
• And, the worst mistake is: Making inconclusive findings when faced with the classic "he said, she said" scenario.

Interviewing HR Personnel, Supervisors, Coworkers, Subordinates

Many different problems can lead an employer to start an investigation, and not every investigation necessarily fits the popular profile of interrogations, witnesses under harsh lights, and long, drawn-out detective work.

Naturally, each type of problem demands its own methods of investigation. However, certain common threads run through each type of investigation situation. The investigator must be knowledgeable about state and federal employment laws; must uphold the privacy rights of employees and others; must conduct a thorough investigation, but without letting it drag on too long; must be objective; and must keep his or her mind on the ultimate goal of any investigation, i.e., discovering the underlying reasons for the problem so that management can take corrective action.

Some of the more important laws and legal situations that require investigations by employers are:

• job discrimination laws - Civil Rights Act of 1964 (Title VII), the ADA, the ADEA, and their state equivalent, the Texas Commission on Human Rights Act
• health and safety laws - OSHA - employers must investigate problems and prevent future similar problems; prevention of workplace violence - employers have a duty to investigate threats and prevent acts of violence in the workplace to the extent possible
• drug-free workplace laws - Drug-Free Workplace Act of 1988; DOT drug testing regulations
• background and credit checks - in order to minimize liability for negligent hiring or negligent retention, employers must sometimes investigate employees' backgrounds - Fair Credit Reporting Act requirements apply

Patterns of Discrimination and Proof of Wrongful Termination

Personnel Files

Federal law does not specifically require employers to maintain "personnel files," and it does not regulate the question of whether and to what extent employers must allow employees to view, copy, or add documents to their personnel files. However, many of the kinds of documentation needed to defend against discrimination claims and lawsuits, and other types of employment actions, are normally kept in personnel files. Some states have laws requiring employers to give certain degrees of access to their files. Other states leave that up to an employer and employee to work out between themselves. If you are in doubt about the prevailing legal requirements, be sure to consult an attorney.

Handbooks, Policies, Procedures, Manuals

An employee handbook may modify the at-will employment relationship if it specifically and expressly curtails the employer's right to terminate the employee. To modify the at-will status, the handbook must restrict the at-will relationship in a "meaningful and special way" and must contain specific contractual terms altering the at-will status.

Emails, Social Media, Phone Records

We live in a wonderful age in which information flows quickly and abundantly, giving savvy businesses a better chance to stay on top of things, effectively manage change, and anticipate future trends. Much of the improvement in the speed and availability of information is due to advances in computers and to the growth of the Internet.

Many employers and employees share common misconceptions about privacy in the workplace. One widely-heard misconception is that either the "Freedom of Information Act" or the "Privacy Act" forbids a company from releasing an employee's personal information, including a Social Security number (SSN). In actuality, those federal laws generally do not apply to a private employer's actions. They either obligate federal government agencies to release, or forbid them from releasing, certain private information about citizens to outside parties. Without significant exception, employee information furnished by employers to federal agencies, such as with payroll information to the IRS, is exempt from public disclosure.