Ann Fromholz Named Fellow to Top Employment Lawyers’ Group

Ann Fromholz Named Fellow to Top Employment Lawyers’ Group

Expert Workplace Investigator Honored by College of Labor and Employment Lawyers

 Top employment attorney Ann Fromholz, an expert workplace investigator, has been elected a Fellow of the College of Labor and Employment Lawyers (CLEL).

“It is truly an honor to be named a Fellow because I believe it represents my commitment to clients, to excellence and to the profession,” said Fromholz, who investigates sensitive workplace complaints and is certified to conduct Title IX investigations.

Fromholz is one of 79 inductees in 2017 joining nearly 1,400 Fellows internationally.  She is one of only four 2017 inductees from across California and the only attorney selected from Los Angeles County.

The inductees will be honored on November 11, 2017 in Washington, D.C.

Fromholz, who has been in practice 22 years, serves on the Los Angeles County Bar Association’s Judicial Appointments Committee. She’s also a member of the American Bar Association Section of Civil Rights and Social Justice and the American and Los Angeles County bar associations’ labor and employment sections.

At the LACBA Domestic Violence Legal Services Project, Ann helps victims of domestic violence and elder abuse obtain temporary and permanent restraining orders. She helps nonprofits, such as APLA Health and Homeboy Industries. Through the Constitutional Rights Foundation, she spent the past four years coaching the Animo Pat Brown Charter High School mock trial team.

Booze, Sex and Legal Drama: How the ‘Bachelor’ Scandal Could Reshape Reality TV

Booze, Sex and Legal Drama: How the ‘Bachelor’ Scandal Could Reshape Reality TV

By:  Ashley Cullin
The Hollywood Reporter, June 21, 2017

To any lawyer who regularly investigates sexual misconduct in college or corporate settings, the premise of ABC’s Bachelor in Paradise is a legal minefield: Men and women who were romantically rejected on national television are sent to a Mexican resort and supplied with a seemingly endless well of free booze for a second chance at finding love.So it is no surprise to legal observers that a recent allegation of sexual misconduct on the set involving questions about alcohol and consent could reshape the reality television genre — even though Warner Bros. TV, which produces the show, announced on Tuesday it found no evidence of wrongdoing in its internal investigation.

A trip to paradise became hell for two BIP contestants, Corinne Olympios and DeMario Jackson, who on June 4, the first day of filming, engaged in sexual activity while under the influence of alcohol. Confirmed details are scarce amid conflicting accounts, but according to multiple reports attributed to sources close to the situation, the pair began kissing and then moved to the pool, where the intimacy escalated but did not include sex. The following day, a producer on the show lodged an internal complaint that sparked an immediate investigation by Warners.

In a statement, Olympios said she doesn’t remember what happened, but sources insist the fan favorite appears to be “lucid” in the footage from that day, and neither party thought anything questionable had happened between them until they were later filled in by producers and castmembers.

So who, if anyone, is potentially liable?

“Anyone can unwittingly commit sexual assault if there isn’t informed and proper consent,” says criminal defense lawyer Priya Sopori. Here, because both parties had consumed alcohol, there is a chance that each was too intoxicated to realize the other couldn’t consent. Sopori explains that, while it might sound strange, “It’s possible that both parties can claim that they were sexually assaulted if they were both in a position in which they were unable to give consent.”

Olympios, who is represented by litigator Marty Singer, says she holds the show responsible for what happened, not Jackson. For his part, Jackson says he has lost his job because of the damage this situation has caused his reputation.

Sopori notes that sexual stereotypes can lead the public to place blame without having all the facts. “The assumption is that, in order to have an erection, the man has to be sexually aroused and provide consent,” she says. “Going through the motions does not equal consent.”

Unlike the scenarios that lawyers routinely investigate, this case involves people who are filmed 24/7. Warners says it won’t release the tape out of respect for the privacy of those involved. “We can say, however, that the tape does not support any charge of misconduct by a cast member,” said the studio in a statement. “Nor does the tape show, contrary to many press reports, that the safety of any cast member was ever in jeopardy.”

It remains to be seen whether ABC will air any film of Jackson and Olympios from day one. “Putting aside constraints of the FCC, ABC has every right to air the non-sexual footage,” says Sopori.

Even if no evidence of wrongdoing is present on the tapes, this situation brings to the forefront questions of responsibility. “It raises the issue of, where is the line and at what point do producers have to step in and not let the story unfold, even if it might make for great TV,” says Los Angeles-based employment litigator Lisa Von Eschen.

It’s a virtual certainty that the contracts signed by contestants indemnify the show and its staff from legal liability and require that any disputes be resolved in confidential arbitration.

But there are some lines that cannot be crossed, falling outside the scope of the contract. While the show shoots in Mexico, experts say the contracts most likely dictate that any disputes would be subject to California law — which requires affirmative consent for any sexual conduct.

Regardless of the outcome — the matter almost certainly will settle before it reaches a courtroom — and who ultimately is held responsible, Warners and ABC face a possible negligence claim and increased liability moving forward because they have been put on notice that issues of alcohol and consent could arise among the shows’ contestants.

Any changes to behind-the-scenes protocol could affect the product onscreen, and an entire genre of reality TV. One source equates such scrutiny to requiring porn actors to wear condoms. But for producers, while the issues involved are complicated and sensitive, the steps forward are fairly clear-cut: weigh the revenue generated by the show, its reception from fans and whether changing the formula to mitigate risk would hurt the franchise.

“It’s honestly a risk-benefit analysis,” says attorney Ann Fromholz, who specializes in workplace and campus investigations of harassment claims.”Is the benefit of having the show in its current form worth the risk?”

Apparently so. Warners on Tuesday announced that production of the show would resume and it will “implement certain changes to the show’s policies and procedures to enhance and further ensure the safety and security of all participants.”

Sopori says immediately launching a thorough internal investigation is the best defense to any potential claim, and she’s not surprised the show will continue. “If you have cleared your producers and your cast of any misconduct, to not move forward would suggest you lack faith in the results of the investigation,” she says.

Philip Bonoli, an employment lawyer at Brutzkus Gubner, questions why there would be a need to implement changes if Warners’ investigation found no misconduct, but says taking measures to prevent future issues could lower liability in the event of another incident. “They should, and it sounds like they will, institute training regarding harassment or other training to prevent something like this from happening again,” he says. “It sounds drastic, but serious thought should be given to restrict the availability and consumption of alcohol by the contestants.”

In a guest column for THRBachelor in Paradise alum Evan Bass says the contracts make clear that each contestants’ alcohol consumption is his or her own responsibility but adds, “Alcohol is treated with the respect it deserves, and sometimes contestants are asked to stop.”

One option attorneys recommend, which based on Bass’ statements could merely be a strengthening of the current protocol, is to essentially train the crew to recognize the same signs of excessive intoxication that bartenders look for.

“The show’s producers will want to make certain to step in if activities cross the line from attention-grabbing television to conduct that places the participants in danger and/or violates civil or criminal statutes,” says Von Eschen.

Jackson’s camp did not comment on Warners’ announcement, but Singer says he’ll continue investigating what happened on behalf of Olympios. It’s unclear whether either of them will return to set — and that will likely hinge on whether either is still considering a lawsuit. Odds are both parties are in negotiations with producers, which will likely address how much footage from that day, if any, will air and if either will continue to be part of the franchise.

“Companies generally do not like to pay someone in exchange for an agreement not to sue and then have that person keep working as an employee,” says Fromholz, opining on the likely outcome in a more traditional corporate setting. “Having both contestants return probably would generate big ratings, but it also likely would increase risk to the company.”

What To Do When A Workplace Investigation Jumps The Tracks

What To Do When A Workplace Investigation Jumps The Tracks

By:  Ann Fromholz
Originally published in Law360 on June 2, 2017

Much like other types of investigations, a workplace investigation can unearth all kinds of unexpected information.

The Chicago Tribune reported recently that an investigation into whether a water district superintendent used his government email account for gun deals blew up into a finding of racist and sexist behavior at the highest levels, which led to resignations by top city officials.

And according to a San Jose Mercury News report in March, a workplace investigation at Tesla into an employee’s complaints about racist behavior took a tricky turn when the company later discovered that many of the employees involved, including the one who complained, would socialize outside work and freely use the language that the employee complained about.

Recently, I was hired to conduct an investigation at a private firm that had received a complaint of sexual harassment from one of the few women in management. She alleged that the harassment had been going on for months and that it had gotten so bad that she could no longer work at the firm.

During the investigation into her complaints, witnesses told me what they knew about the complaining party’s claims. They also told me about sexual overtures by a male senior executive toward numerous junior women at the company. The witnesses told me that his conduct was well known, but none of them had complained to the company about it until I showed up to investigate a different complaint.

The rules aren’t always clear as to what the investigator is supposed to do with the information when the case takes an unanticipated turn. This article offers some guidance on this.

Define The Scope of the Investigation

First, define the scope of the investigation from the beginning. This is one of the first rules that any would-be investigator learns about conducting workplace investigations.

It is common for the complaining party or other witnesses to raise issues or allegations that clearly are outside the scope of the investigation

Once the investigator, who is functioning as an agent of the employer, knows of the new allegations, the company is on notice of the allegations and has an obligation to investigate. The investigator therefore should notify the appropriate person within the employer’s reporting structure of the new allegations as soon as possible. If the investigator is internal, she may notify the head of human resources, the head of the legal department, or another internal resource who is overseeing the investigation. If the investigator is external, she should notify the person at the employer who is responsible for the investigation (often, but not always, someone within the legal or human resources departments). The employer then should determine whether to expand the scope of the current investigation or initiate a new investigation. The employer also will determine whether a different investigator will investigate the new allegations.

Document Decisions

The investigator should document any decision to change the scope of the investigation. Likewise, if the investigator notifies the employer of new allegations and is instructed not to investigate those new allegations, the employer should document this instruction.

Avoid Risk for Retaliation Claims

Sometimes, an expanded investigation can put the investigator in a difficult position and put the employer at risk for claims of retaliation. Let’s use as an example an investigation into an employee’s claim of sexual harassment against her supervisor. The responding party — the person accused of harassment — tells the investigator that the claims are baseless and that the employee made the claim to protect herself because she is a poor performer and knew that she was about to receive discipline for her unacceptable performance.

The employer should not request that the investigator expand the scope of the investigation to include the allegations of poor performance and the assertion that the complaining employee made the complaint of harassment to stave off discipline. The investigation should remain focused on the allegations of workplace misconduct, which in this scenario are the original claims of sexual harassment. The company’s human resources department should manage the complaining party’s job performance separate from the misconduct investigation.

The investigator may determine that the complaining party’s job performance, and the possibility that she made the harassment claim as a preemptive strike, affects the complaining party’s credibility.

Performance Management

Beyond that credibility determination, workplace investigations should not be used as a substitute for performance management. If the employer charges the investigator with investigating the complaining party’s performance, and that inquiry becomes intertwined with the original investigation, the employer runs the risk that the complaining party may well allege that the investigation itself was retaliatory.

Instead, the employer should have separate employment counsel — whether in-house or external — who can advise the human resources staff on how to manage the employee’s performance and how to ensure that such performance management is separate from her complaint of workplace harassment. With the advice of counsel, the employer should take steps to address the performance issue that was raised in the course of the investigation. Avoiding the issue of performance because the employee has complained of harassment — or other workplace misconduct — only serves to prolong a performance problem.

Other Conflicts

Perhaps the most difficult dilemma for an investigator arises when the investigator’s view of the investigation contradicts what the employer believes should happen. No matter how careful the investigator is to define the scope of the investigation at the outset, such conflicts nonetheless can arise.

In many investigations, the investigator determines that certain employees — who were not in the original investigation plan — likely have knowledge relevant to the investigation and therefore should be interviewed. The investigator should explain to the employer what new information has arisen, why the new witnesses appear to be relevant, and why their interviews are necessary. In most cases, the employer will willingly allow the investigator access to those employees and, if necessary, help schedule interviews.

However, employers sometimes choose to restrict the investigator’s access to certain employees or information. This may happen because the information is particularly sensitive or because the employees are very highly placed or very visible. In rare cases, employers have prohibited investigators access to employees (or former employees) without giving any reason or demurring because the additional interviews would increase costs too much.

Whatever the reason, the employer’s decision to restrict the investigator’s access to certain employees or information is a problem. It can create a serious ethical dilemma, especially when the information relates to the established scope of the investigation.

If the investigator cannot convince the employer to allow her access to the necessary witnesses or information, the investigator often will elect to document her request to the employer, the employer’s denial of the request, and the investigator’s perception of the ensuing impact. If the witnesses and information are crucial to the investigation, the investigator might determine that she cannot continue the investigation with the restrictions imposed by the employer. Of course, she will document this decision as well.

The way the investigator and the employer frame the scope of the investigation will dictate the resources available to the investigator, the expectations of the investigation, and the availability of corrective action to address any problems that the investigation unearths.

If the employer views the investigation as a tool to find and correct problems in the workplace — and not as a necessary evil required by Draconian employment laws and employment lawyers — the employer is more likely to support the investigator and the investigation with the resources necessary to accomplish those goals.