According to a poll conducted during an Ogletree Deakins webinar in 2021, 70 percent of approximately 1,200 attendees had experienced an increase in internal workplace complaints. In addition, a recently published outlook for the legal industry projected a continued increase in the investigations practice area for 2022. Given the current climate, employers should expect an uptick in internal complaints, as well as corresponding workplace investigations and organizational assessments.
The New York attorney general’s August 3, 2021, report regarding the sexual harassment allegations brought against former New York governor Andrew Cuomo, “Report of Investigation Into Allegations of Sexual Harassment by Governor Andrew M. Cuomo,” contains extraordinary detail to support the conclusion that Cuomo “sexually harassed a number of current and former New York State employees.” Beyond noting the political consequences of the investigation, employers in New York and elsewhere may wish to consider utilizing these recent developments as an opportunity to reassess their workplace practices to minimize the likelihood of events occurring similar to those described in the report. Among the many potential action items and considerations, below are tips on training, education, and communication that employers may wish to explore as a result of the Cuomo report.
The August 3, 2021, report regarding the sexual harassment allegations brought against former New York governor Andrew Cuomo, “Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomo” resulted in his resignation on August 10, 2021, and renewed attention to the #MeToo movement. As a political wonk and an employment lawyer, these events have been of great interest. Also noteworthy, are the lessons one can glean from the report in how to conduct an effective workplace investigation.
Effective September 1, 2021, any employer that employs “one or more employees” or that “acts directly in the interests of an employer in relation to an employee” will be considered an employer under Texas law and subject to a heightened level of scrutiny for sexual harassment claims under Texas law. The new law is a significant change from the current standard, which shields employers with fewer than 15 employees from liability regarding sexual harassment claims.
My grandmother lived by the rule that summer flowers should not be planted before spring break, no matter how much warm weather March might bring. The week after spring break would find her working furiously in her garden, sometimes catching up with her neighbors who had planted early, but more often taking a bit of satisfaction in looking over the prematurely planted and frostbitten flowers in surrounding yards. The freeze warning I just received from my smartphone app reminded me of this sage advice from this beloved, wise, and masterful gardener. But it also reminded me that Title IX claim season is now upon us.
Employers understand they have an obligation to investigate complaints of workplace misconduct. However, communications made during internal investigations are not totally without risk. Reports of misconduct, such as theft, assault, or abuse of others, can raise the scepter of defamation claims if the employer does not properly manage the communications. Further, while a qualified privilege exists for potentially defamatory statements made during misconduct investigations, such privilege is not absolute and can be lost.