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The 12 days of California Labor & Employment Series – Day 10 "Expansion of DLSE Powers"

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2018. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the tenth day of Christmas, my Labor and Employment attorney gave to me – ten pipers piping and SB 306. More ›

Knock-Knock, Who’s There? The EEOC: When the EEOC’s can Investigate an Employer’s Premises Without Prior Consent

When the EEOC investigates a charge of discrimination, it may employ one of several investigatory methods, including site inspections.  In EEOC v. Nucor Steel Gallatin, Inc., a case of national first impression, a Kentucky district court considered whether to enforce a subpoena requiring the employer to provide on-site access to conduct witness interviews, examine the facility, and obtain additional information relating to the position the complainant applied for, or alternatively, to require the EEOC to obtain an administrative warrant.   More ›

Illinois Supreme Court: Employer Liable for Third-Party Investigator’s Invasion of Former Employee’s Privacy

Based upon a recent decision by the Illinois Supreme Court, Illinois employers have an additional reason to be careful when investigating misconduct by current and former employees. In the case, Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), the State’s highest court for the first time upheld an award of significant damages to a former employee based on the former employer's invasion of her privacy during an investigation into her competitive behavior. The decision is even more significant because the defendant employer was actually held vicariously liable for intrusions committed by a third-party investigator, signaling to all employers the importance of having a policy in place for such investigations. More ›

Illinois Court: Participation in Employer’s own Discrimination Investigation After EEOC Complaint is Protected Activity Under Title VII

It is generally a rule that an employer may discipline its employee for his behavior during an internal investigation of alleged discrimination. A federal district court in Northern Illinois recently joined the Sixth and Eleventh Circuits, however, in recognizing an exception to that rule: where the investigation occurs after a complaint has been filed, employees who participate are protected from discipline by Title VII. More ›

Seventh Circuit Emphasizes that Prompt Investigation is key to Eliminating Employer Liability for Co-Worker Harassment Under Title VII

An African-American employee was involved in a personal feud with several co-workers, leading her to file 10 complaints of racial harassment within a two-year period. The employer promptly investigated each of the complaints, determining in only one case that the alleged harassment had occurred and that discipline was appropriate. Where the evidence was inconclusive, the employer counseled all parties involved to treat one another with respect. The employee was unsatisfied with those responses, however, and sued the employer. He alleged that the employer had allowed its employees to create a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as amended. An employer is liable under Title VII for an employee’s harassment when it fails to take reasonable steps to discover and remedy the harassment. The U.S. Court of Appeals for the Seventh Circuit found no basis for employer liability because the employer had investigated each of the employee’s complaints with vigor and had taken appropriate corrective action when necessary. The court concluded: “As we have said before, prompt investigation is the hallmark of reasonable corrective action.” Employers should remember that when they become aware of a potential complaint of harassment, it is imperative to immediately investigate and respond accordingly; by doing so, the employer will avoid liability for employee’s misconduct.

Seventh Circuit Condones Broad EEOC Subpoena Power

After an African-American sales employee was fired, he filed a charge with the Equal U.S. Employment Opportunity Commission (EEOC) alleging that the employer discriminated against him based on his race and ultimately terminated him because he had filed an internal complaint of race discrimination. When the EEOC investigated the employee’s charge, it requested and received information from the employer. The information revealed that few African-Americans worked for the employer and that the employer maintained two separate sales teams that were racially divided. Based on those facts, the EEOC surmised that the employer may have engaged in discriminatory hiring. This led the EEOC to issue a subpoena to the employer seeking information about its hiring practices. The employer refused to comply, arguing that the materials were irrelevant to the employee’s race discrimination charge, in which he did not specifically allege discriminatory hiring. The U.S. Court of Appeals for the Seventh Circuit rejected the employer’s argument and held that there is “a generous standard of relevance for purposes of EEOC subpoenas” and that the agency may obtain “virtually any material that might cast light on the allegations against the employer.” In this instance, information pertaining to the employer’s discriminatory hiring practices could “cast light” on the employee’s discrimination complaint. Accordingly, the court enforced the EEOC’s subpoena. This case underscores the EEOC’s far-reaching subpoena power and serves as an alert that employers must be prepared to respond when the EEOC requests information.