Internal Investigations — Assessing Witness Credibility

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As experienced investigators know, an investigation into allegations of harassment, discrimination or other misconduct may lead to a so-called “he said/she said” scenario, possibly leaving the investigator in a quandary as to the investigation’s outcome. This situation may indeed lead to a determination that the allegations are unsubstantiated. However, an investigator should not shy away from making credibility determinations when possible, even when it is one person’s word against another. Continue reading this entry

Do You Know Who Your Employees Are?

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Employers are beginning to learn that they may have far more employees than they think. A driver for the ride sharing company Uber was considered an “employee” by the California Labor Commissioner’s Office earlier this month. And just last August a national franchisor was considered a joint employer of its franchisees’ employees by the Office of the General Counsel of the National Labor Relations Board (NLRB). These two distinct acts demonstrate a growing trend by regulatory bodies across the country to take a closer look at what actually makes someone an “employee,” and so far anyway, it appears government bodies are leaning heavily in the direction of finding laborers to be employees of companies, even when all parties involved made express agreements to the contrary. Continue reading this entry

Colorado Supreme Court Plays Debbie Downer for Medical Pot Users

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The wait is finally over. Employers in Colorado – and in other states with similar lifestyle laws – can breathe a sigh of relief following a recent ruling by the Colorado Supreme Court. In Coats v. Dish Network, a quadriplegic employee who tested positive for marijuana during a random drug test challenged his discharge under his employer’s zero tolerance policy. The employee claimed that because he used medical marijuana, pursuant to Colorado’s Medical Marijuana Amendment, outside of work, his use was “lawful” under Colorado’s “lawful activities statute,” and thus protected from discipline. Continue reading this entry

Background Checks? That is the Question

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Has your company decided yet whether it will conduct criminal background or credit checks? If you are already using that tool as part of your job screening process, are you keeping up with legal developments in every city, county or state where you do business to verify whether “ban the box” laws are being considered? Is your company a government contractor? If so, are you aware that 100 members of the U.S. Congress support legislation to apply “ban the box” to government contractors? Continue reading this entry

Unfortunately, Offensive Racial Comments Don’t Always Get You Fired (At Least Under Labor Law)

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Under the National Labor Relations Act, certain union activities are considered “protected.” That is, employees engaging in union activity, or union representatives carrying out their duties in the context of grievance processing or labor negotiations, are sometimes protected from discipline even though their conduct would otherwise normally result in discipline under their employer’s policies. For example, an employee who yells profanities at a supervisor during the course of a discussion about the need for a union may be shielded from discipline by the Act even though the conduct otherwise violated the employer’s policies. As a rule of thumb, threats of physical violence are generally not protected under the Act even when they arise in the context of union activity, but disrespectful conduct often is protected when it occurs in that context. Continue reading this entry