The Fish Stinks From the Head

The Fish Stinks From the Head

A number of years ago, I attended the holiday party of the firm where I worked at the time. The firm’s management committee met in Los Angeles that week, so all of the members of the executive committee attended the holiday party. Talk about awkward.

It was Friday night and I was tired from a long week of working on various harassment and discrimination lawsuits. I decided to leave the party early and said goodbye to the friends and colleagues around me. In that group was a member of the executive committee, who was from another office and whom I had never met before. He asked for a ride back to his hotel. I said, “Sure”, because his hotel was on my way back to the freeway, and because it did not occur to me that he would do anything inappropriate. Our office did not have that kind of culture.

Apparently, his office did. Or at least he did. As I drove toward the hotel, I asked where the entrance was. He pointed to the parking lot and said, “Well, you can park there if you want to come up to my room.” I laughed. Was I nervous? Was I trying to play it off as a joke? I’m not sure. I know that I managed to convey that wasn’t going to happen. I dropped him at the entrance and got home without incident.

The next day, I went to talk to my best friend in the office. He had made partner earlier that year. I told him what happened and, without hesitation, he said, “You have to tell [the managing partner].” I told him I did not want to. He said that if I did not, he would.

So, later that day, I knocked on the door of the managing partner. “Can I talk to you?” I asked. I was incredibly nervous. I really did not want to tell him. But my sister once told me that, in difficult situations like this, you should just start talking and momentum will take over. She’s right.

I told the managing partner about the creepy member of the executive committee. His reaction surprised me, in the best possible way. The first word he said? “Shit.” And then he said, “The fish stinks from the head.” I knew what he meant: if there are bad actors at the top, it ruins the rest of the organization. He had worked so hard to make sure there was no such stink in our office. And he was dismayed that such a stink had affected one of his lawyers.

I don’t know what the firm did, but I know that I never had to interact with that executive committee member again. I also know that my complaint had no adverse impact on my career. I have every faith that the managing partner of our office put the fear of god into him and anyone else who might disrupt the harmony of our office.

Keeping a workplace free from harassment requires good policies, procedures, and training. But those things cannot alone create a safe and productive workplace. The leadership must be dedicated to creating, cultivating, and protecting a harassment-free workplace, and to taking prompt action when even the slightest hint of harassment occurs.

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.

The “Dead Man’s Statute” isn’t Johnny Depp’s latest “Pirates of the Caribbean” movie

The “Dead Man’s Statute” isn’t Johnny Depp’s latest “Pirates of the Caribbean” movie

By:  Todd Cunningham, The Recorder
May 19, 2017

It’s a rule of evidence—adopted in many states, including New York—that could help 21st Century Fox attorneys mount an effective defense in the raft of sexual harassment suits it’s facing, despite the death earlier this week of Roger Ailes. The Fox News founder, who paid $20 million to end a suit brought by former anchor Gretchen Carlson, was accused in several of the disputes that followed her explosive allegations.

The principle underlying the dead man’s statute dates back to the 19th century and is used today mainly in probate cases. Designed to prevent perjury, it prohibits a party with an interest in civil litigation from testifying against a dead party about communications with the deceased.

It would apply only in cases where Ailes, accused of making unwanted advances toward several female Fox News anchors and guests, was named as a defendant.

Jack Schaedel, part of the labor and employment group in the Los Angeles office of Dykema Gossett, said the Ailes scenario illustrates the reason for the rule.

“Harassment cases like these often involve ‘she said/he said’ situations,” Schaedel said, adding, “What’s to stop the plaintiff from saying that Ailes promised her $10 million for sex? If he’s not there to rebut it, does that mean she can say it and she wins?”

If there was any doubt that attorney Douglas Wigdor, the New York attorney who represents 21 plaintiffs who have sued Fox, would attempt to exploit defense weaknesses caused by the death of the 77-year-old conservative icon, it didn’t last long.

“The sudden passing of Roger Ailes will make it difficult for Fox News to refute the allegations against him as his testimony was not secured by sworn testimony to date,” he said in a statement released hours after the news of Ailes’ death broke.

He then cited accusations made in a pending Southern District of New York complaint by Fox reporter Lidija Ujkic. Ujkic, who does not name Ailes as a defendant in the suit, claims that he asked her to turn around so he could see her from behind and commented that he liked what he saw, and also called her ex-boyfriend to ask whether she “put out” and “how’s the sex?”

A suit filed in New York state court last month by Fox News contributor Julie Roginsky does name Ailes as a defendant. Roginsky claims Ailes made repeated unwanted sexual advances and that she was denied on-air opportunities for refusing him.

Even with the dead man’s statute, there are ways of getting the testimony in, said Ann Fromholz, an employment attorney who founded the Pasadena, California-based Fromholz Firm.

“He may have recounted one of the incidents to someone, or sent emails giving his side of the story, and that would be admissible as an exception to the hearsay rule,” said Fromholz, who suggested the absence of Ailes could present other challenges for Fox.

“It is going to complicate the discovery process, because they won’t have his take on some of the events in question. They will only have the accusations. He can’t help his own lawyers,” she said, noting that Ailes’ death will also affect who’s liable.

“We haven’t seen all the suits, but typically the estate would be responsible for any damages or monetary awards against the defendant,” Fromholz said.

Quinn Emanuel Urquhart & Sullivan partner Susan Estrich, who represented Ailes, did not return a call seeking comment. A call to Fox’s corporate headquarters was also not returned.

“Roger Ailes has left behind a grieving widow and teenage child. They did nothing wrong and surely deserve our sympathy,” Judd Burstein, a New York-based attorney representing former Fox News anchor Andrea Tantaros in a sexual harassment suit, said Thursday. His team is appealing a New York Supreme Court ruling which found that the dispute should be handled in arbitration. Burstein declined to comment on his team’s legal strategy, saying it would be “unseemly and heartless.”

“It seems odd to say,” said Schaedel, “but at some point a sympathy factor could kick in. Generally, juries tend not to want to criticize someone who’s dead, and his widow could testify, for example, that he was a wonderful husband, and took great pride in his helping young journalists make their way.”

Schaedel said there could also be a backlash if the jury perceives there is an element of “me too” in some of these suits, and thinks some of the plaintiffs are trying to cash in. Fox News has already paid out more than $45 million to settle suits involving Ailes, according to a recent U.S. Securities and Exchange Commission filing.

“Fox could make the point that these filings can be contagious, and suggest that with all the reports of these payouts, some of them may be treating Fox News like an ATM,” he said.

Ailes’ absence could also make it more difficult for Fox to defend itself against charges that its leadership should have done more once it became aware of the problems, leaving itself vulnerable to significant punitive damage awards.

“Typically, it’s the obligation of the top leadership of the company to see that there was a problem and take steps to correct it and prevent it from happening again,” Fromholz said. “In these cases, the top leadership of the company are the ones accused of creating the problem, and Ailes won’t be around to explain what happened.”

How Roger Ailes’ Death Could Complicate Legal Claims Over His Fox News Tenure

How Roger Ailes’ Death Could Complicate Legal Claims Over His Fox News Tenure

While many in the media industry are mourning the passing of Fox News titan Roger Ailes, those in the legal industry are assessing how the federal investigation and pending civil lawsuits will move forward without a key witness.Ailes died Thursday, nearly a year after leaving the company he founded amid allegations of sexual harassment and retaliation. In the months that followed, a barrage of lawsuits were filed against Fox News, an internal investigation was launched by Paul, Weiss and federal prosecutors have been circling the issue of whether sexual harassment settlements were concealed from investors in 21st Century Fox, the network’s parent company.

The potential impact to the Fox News internal investigation is much more clear-cut, attorneys say — especially since the claims involve an alleged company-wide culture and not an individual’s isolated actions.

“Fox has an obligation to complete the investigation, with whatever witnesses are available to them, and reach a conclusion as to whether misconduct occurred and take corrective action to ensure that the conduct does not occur,” says attorney Ann Fromholz, who specializes in corporate investigations. She says it’s unclear whether Ailes was interviewed by investigators in the months following his resignation, but it’s unlikely to significantly affect the outcome.

“If the problem is bigger than one person then the unavailability of one person to be interviewed isn’t going to materially affect the investigation,” says Fromholz. “Other witnesses will be able to tell what happened and there will be corrective action that the company needs to take.”

As for the probe being handed by the U.S. Attorney’s Office in the Southern District of New York as well as civil lawsuits from Julie Roginsky and Andrea Tantaros (both of whom named Ailes as a co-defendant in their respective complaints), the absence of a central figure like Ailes could be problematic in a couple of ways. For whatever happened during Ailes’ tenure, those inside Fox News’ ranks now have a convenient fall guy to lay blame on. Secondly, there could be quite the disruption as parties begin fighting about what evidence is admissible and what’s constitutes hearsay. A court is likely to recognize that Ailes is no longer around to challenge statements he allegedly made.

This could swing things in different directions. If a judge decides to preclude evidence, that could potentially undercut claims from alleged victims. But what if the judge is lenient? “It might significantly weaken the defense if [Ailes] is not around to give an explanation,” says Fromholz.

Then again, the judge could allow all sorts of statements that Ailes made in his favor outside the court. Normally, these wouldn’t be allowed because there would be no opportunity for cross-examination, but an exception to the hearsay rule could theoretically be made because of his death.

“If I had a conversation with the defendant, I can say he told me this,” says Bryan Sullivan, an entertainment litigator at Early Sullivan. “That’s technically hearsay, but it’s outside of the hearsay rule. It gets really technical.”

Attorney Douglas Wigdor, who’s currently representing more than a dozen people in lawsuits against the company, made noise shortly after Ailes’ death by issuing a statement Thursday saying his passing will “make it difficult for Fox News to refute the allegations against him as his testimony was not secured by sworn testimony to date.” Specifically, Wigdor references a lawsuit filed against 21st Century Fox by Lidia Curanaj, who claims she was passed over for a network gig in 2011 because the CEO was told by her ex-boyfriend that she was a “nice girl” and he inferred that she wouldn’t “put out.”

But the problem there is that Ailes is not a co-defendant in the case, and Curanaj didn’t directly work for him. Her lawsuit centers on claims that she was repeatedly denied a full-time time job at New York affiliate Fox 5 because of her age. Fox attorney Linda Goldstein is currently asking the court to strike the comments about Ailes, along with others involving O’Reilly, because they’re irrelevant and prejudicial. “It is clear that the Ailes and O’Reilly Allegations are designed to ‘inflame the reader,'” writes Goldstein. “In fact, the O’Reilly allegations, which were added in the Amended Complaint, only highlight Plaintiff’s attempts to exploit complaints by other women who worked with Ailes or O’Reilly to her own ends. Their allegations, true or false, have no bearing on Plaintiff, who did not work with either Ailes or O’Reilly or even the other women.”

Prosecutors contemplating an indictment now have a decision on their hands about whether to move forward. In the civil lawsuits, plaintiffs and 21st Century Fox are meanwhile likely to re-evaluate the risks of continuing litigation.

Daniel Handman, a litigator at Hirschfeld Kraemer, believes that the absence of a key witness like Ailes could harm Fox because the company can no longer rely on a jury hearing his account of events. That said, Handman also wonders if this really incentivizes the parties to move on and strike settlements. He says, “Sometimes you don’t want to be seen as stepping on a dead man’s grave. How much more do you have to ruin his reputation after he’s dead?”

Fox’s Handling Of O’Reilly Complaints — A Cautionary Tale

Fox’s Handling Of O’Reilly Complaints — A Cautionary Tale

By: Ann Fromholz
Originally published by Law360 on April 24, 2017.

When a major star and moneymaker has a history of sexually harassing employees, the company may have to choose between protecting the star and handling the employee complaints appropriately.

For any responsible company, there is no choice but to handle the complaints properly.

In this case, the company went the other way, which should serve as a lesson to other companies because Fox did not eliminate the problem, it only allowed it to fester in a way that ultimately ruined the star, further eroded the company’s reputation and left far too many victims along the way.

As the situation recently came to a head, Bill O’Reilly, the subject of the complaints — which saw payouts of at least $13 million to at least five employees — dug a deeper hole for himself as well as the network by making Trumpian statements — proffering alternative facts to suggest no such scandal existed.

“In my more than 20 years at Fox News Channel, no one has ever filed a complaint about me with the human resources department, even on the anonymous hotline,” O’Reilly wrote on his website as the news of sexual harassment allegations against him grew.

To be fair, any company can have a Bill O’Reilly in its midst. The question is whether the company does the right thing once it realizes what’s going on. As a workplace investigator who routinely gets called in when HR departments have a complaint that’s too hot to handle, I can recognize how, in Fox’s case, the company went outside the lines. As word surfaced that O’Reilly was making unwanted sexual advances toward female colleagues, Fox acted more like a wingman than a policeman.

A company’s duty to investigate possible sexual harassment starts well before a lawsuit is filed. It starts before a formal internal complaint is filed. The duty to investigate possible harassment, and to take steps to stop the harassment if it does exist, begins when the company is “on notice” of the potential harassment.

Courts have made clear that an employer is on notice when it knows or should know of harassment. [See Nichols v. Azteca Rest. Enters., 256 F.3d 864, 875 (9th Cir. 2001); Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1994)]. The Equal Employment Opportunity Commission guidance on investigating harassment provides that, “[a]s soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary.” The employer then has an “obligation to take prompt effective steps that will end current harassment and deter future harassment by the harasser or others.” [See Nichols, 256 F.3d at 875, 47 F.3d at 1528.]

When is a company like Fox News on notice of potential harassment? Articles about O’Reilly, former Fox News chief Roger Ailes, and the culture at Fox News report that other Fox News executives were well aware of O’Reilly’s (and Ailes’) conduct. The company, therefore, was on notice and should have investigated the possible harassment by O’Reilly and Ailes, and the existence of a “culture of harassment” when it first learned about it, regardless of whether or when anyone complained.

Picking the Right Investigator

After Wendy Walsh, a Los Angeles talk show host and former frequent guest on “The O’Reilly Factor,” complained of harassment by O’Reilly, Fox News parent 21st Century Fox asked Paul Weiss Rifkind Wharton & Garrison LLP to investigate. Paul Weiss is the same firm that investigated the sexual harassment complaints against Ailes in 2016.

The EEOC guidance on harassment investigations provides that “[a]n employer should set up a mechanism for a prompt, thorough, and impartial investigation into alleged harassment.” Companies often are inclined to hire the employment lawyers who regularly represent them when the need for an investigation arises. However, such a choice can invite allegations that the investigators are not impartial and that they have a conflict of interest. In addition, if the company’s regular law firm conducts the investigation, that firm might be precluded from representing the company if litigation arises and the investigation is called into question. Therefore, a company should consider hiring an independent investigator, a lawyer who is trained and experienced in workplace investigations, but who has not represented the company in the past.

Walsh’s lawyer, Lisa Bloom, is less than satisfied with the choice of Paul Weiss as investigator. She alleged that, because Paul Weiss has represented Fox News before, the firm has a conflict and should not serve as the investigator. She asked that Fox News assign the investigation to someone else. Fox News declined to do so.

There are many factors that go into choosing the right investigator for the job. Impartiality is an important one, but the appearance of a conflict of interest evidently did not carry significant weight to Fox News when it made the decision to hire Paul Weiss, perhaps because the statute of limitations has run on Walsh’s claims and she cannot sue [Nichols v. Azteca Rest. Enters., 256 F.3d 864, 875 (9th Cir. 2001); Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1994)].

A Big Star or Rainmaker Should Not Be Immune From Discipline

The New York Times reported — in an article that led to O’Reilly’s eventual departure on April 19 — that Fox News paid $13 million to five women who made claims of sexual harassment against O’Reilly. But his harassing conduct apparently went beyond those cases. Since that New York Times article, numerous other women have come forward with reports of harassment by O’Reilly.

The EEOC guidance, and case law, require an employer to take “immediate and appropriate corrective action, including discipline, whenever it determines that harassment has occurred.” The corrective action “should be designed to stop the harassment … and ensure that the harassment does not recur.

We do not know whether Fox News took any corrective action with O’Reilly as it paid out millions because of his conduct. We do know that the corrective action, if there was any, did not have the required effect of stopping the harassment.

At least one woman who complained to Fox News about O’Reilly says that she was told the network would not do anything because O’Reilly made too much money for the network. The New York Times reported that, from 2014 to 2016, “The O’Reilly Factor” generated more than $446 million in advertising revenues for Fox News. O’Reilly was the highest earner for the network.

This is not the first time an employer has decided not to take action against a superstar employee, even when that person repeatedly has engaged in clearly harassing conduct. Nineteen years ago, a jury awarded a secretary named Rena Weeks nearly $4 million for harassment she suffered at the hands of a powerful partner at the law firm Baker & McKenzie [Weeks v. Baker & McKenzie, (1998) 63 Cal. App. 4th 1128]. The conduct that the partner directed at Weeks was not isolated. The case included assertions that the partner had harassed as many as 10 other women before, and that — like Fox News — the firm turned a blind eye to this conduct.

The decision not to discipline an employee because they’re a star, because they make a lot of money for the company, or because they are powerful runs counter to the legal requirement. A company should hold every employee, from entry level to senior executive, to the same strict policy against harassment. If an investigation finds that harassment has occurred, the company should take action to stop that harassment and ensure it does not happen again, regardless of who the harasser is. Failure to do this likely exposes the company to increased liability.

The case of Fox News and Bill O’Reilly most likely is not finished, but it already should serve as a cautionary tale to employers who are concerned with legal compliance and with keeping their workplaces safe for all workers.

When do you need an outside investigator?

When do you need an outside investigator?

By: Ann Fromholz
Originally published by the Los Angeles Daily Journal on March 3, 2017.

Many employee complaints can seem very sensitive. Lewd stares, blatant harassment, allegations of criminal conduct.

At what point should HR or inside counsel assign the investigation of an internal grievance to an outside investigator?

A key criterion is bias. If there is a reasonable possibility that opposing counsel in trial could argue that the investigator was biased, take it outside.

There can be an appearance of bias when an employer uses an investigator who is – or who appears to be – vested in the investigation. In some cases, employers use an internal investigator who is involved in some way with the incidents being investigated.

If the investigator witnessed an incident that is part of the investigation, he or she cannot be an impartial investigator; he or she is now a witness. Similarly, employers often use an internal investigator who is in the reporting chain of the person being investigated. In this case, the investigator may be susceptible to pressure and may not be able to be neutral. Finally, an investigator may have supervisory authority over witnesses or the accused, which will affect the perception of their credibility and, thus, the credibility of the investigation itself.

Even if an internal investigator who is in the reporting chain with the accused employee or with witnesses is impartial, a jury may still believe that the investigator could not remain neutral. Likewise, employees who might complain to the employer and must rely on the employer to keep the workplace free from harassment may perceive that the employer is not taking steps to eliminate harassment if they believe that the person who investigates misconduct is motivated to find that misconduct does not exist.

If this happens, employees will be unwilling to bring complaints to the employer’s attention and to subject themselves to an investigatory interview. To this end, the guidance from the Equal Employment Opportunity Commission provides that a person accused of wrongdoing “should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation.” In other words, the investigator should have no stake in the outcome of the investigation.

The EEOC advises employers to select an investigator who can conduct a “thorough and impartial investigation” with no stake in its outcome. The EEOC guidance also advises that the investigator be “well-trained in the skills required for interviewing witnesses and evaluating credibility.” Finally, the EEOC advises that, during the investigation, “[t]he alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation.” These factors become very important if the investigation becomes part of the employer’s defense of a lawsuit.

If an employee is fired because the investigation determines that he or she engaged in misconduct, the employer likely will choose to make the investigation part of its defense of the case. Likewise, if the employer declines to act because the investigation found no misconduct, the complaining employee may sue, and the employer again may choose to incorporate the investigation into its defense.

The investigator must fully understand both the claims and the implications of the investigation. In most cases, an investigator will use the company’s internal policy, and not the law, as the standard to determine if there was a violation. The investigator also must understand the standard to which his or her investigation is held. In California, courts have held that the investigation must be adequate under the circumstances, give notice of the claimed misconduct and a chance for the offending employee to respond, and must reach a reasoned conclusion.

Not only must the investigator have the skills and training to conduct the kind of investigation that’s needed under the circumstances, but the investigator must be able to testify as a competent, unbiased and qualified investigator. The investigator will be subjected to rigorous cross-examination. Often, if the investigator is untrained, or under-trained, in conducting workplace investigations, the cross-examination can destroy the credibility of the investigation by demonstrating – or even implying – that the investigator lacked sufficient training and did not know what he or she was doing.

Often, the facts and circumstances weigh in favor of hiring an outside investigator. If the level or position of the employee being investigation, or of witnesses or others involved in the investigation, create a dynamic that would make it difficult for an internal investigator to be – or appear – impartial, the employer should retain an outside investigator. In addition, many small and medium-sized businesses simply do not have anyone internal who is trained and qualified to conduct an investigation. In some cases, the complaining party or the accused retain counsel, which increases the complexity of the investigation.

In other cases, the complaint alleges criminal conduct. In all of these cases, the employer is well-advised to retain an outside investigator. Some investigations are so complex that an employer needs to look outside to find someone capable. The investigation may touch on legal questions involving surveillance, employee privacy, recording communications, defamation, and confidential company information. More and more investigations require the investigator to understand the legal nuances surrounding social media evidence and electronically stored information. Most often, an outside investigator has this capability and expertise.

An outside investigator also is more likely to have experience testifying at deposition and trial and, therefore, is less likely to stumble under cross-examination. When the employer elects to engage an outside investigator, it is important that the investigator should not be the lawyer – or in the law firm – who will defend the company if the investigation results in litigation. Hiring the same person – or firm – to do the investigation and defend the lawsuit invites all manner of problems, from potential conflicts of interest to an appearance of bias (especially if the representation is an ongoing one) to problems maintaining the attorney-client privilege. An employer’s usual outside counsel, however, often is an excellent resource to refer the employer to a qualified third-party investigator.

Jeweler’s Handling of Employee Complaints Far From Sterling

Jeweler’s Handling of Employee Complaints Far From Sterling

By:  Ann Fromholz
Originally published by Law360 on April 3, 2017.

Sterling Jewelers, the parent company of Jared the Galleria of Jewelry and Kay Jewelers, recently saw its image tarnished after it was revealed that hundreds of current and former employees are waging a class action lawsuit alleging they were routinely groped and encouraged to have sex with their bosses.

The all-too-familiar allegations provide a golden example not only of how not to treat employees, but also of how not to handle their complaints.

Let’s scrutinize what went wrong and how the company might have better managed the grievances.

The employees allege men were favored over women for promotions, and that women were paid less than less-qualified men. The case, now in arbitration, has been pending since 2008 but recently made the news after plaintiffs’ lawyers made public hundreds of pages of declarations from former employees.

In these declarations, employees allege rampant sexual conduct at managers’ meetings and by managers – including senior management – in other settings.  Some claim that employees were pressured to have sex with their managers. Also among the claims by the former employees in the declarations are assertions that employees complained about the discrimination and harassment, but the company took no action.  Some employees allege that, after they complained, they were subjected to retaliation, disciplined or fired.

The company denies the plaintiffs’ allegations and continues to defend the case vigorously.

Although the case is in arbitration, and much of the information therefore will remain confidential, there are nonetheless lessons to be learned from the case for employers who hope to avoid similar litigation, large or small.  It is imperative that, when an employer knows of a potential violation of its policies – such as its policies against harassment, discrimination, or retaliation – it must act quickly.  Not only will this help stave off litigation by solving many problems as they arise, it also is required by California law.

The April 1, 2016, amendments to California’s Fair Employment and Housing Act provide that a company’s policy against discrimination and harassment must: (1) allow employees to report to someone other than a direct supervisor; (2) instruct supervisors to report all complaints; (3) state that all complaints will be followed by a fair, complete and timely investigation; (4) state that the employer will maintain confidentiality to the extent possible; (5) state that remedial action will be taken if any misconduct is found; and (6) state that employees will not be retaliated against for complaining or participating in an investigation.

These requirements are not limited to “formal complaints” by employees.  A supervisor must report – and an employer must investigate – when the supervisor sees or hears about possible harassment or discrimination.  If the company fails to begin an investigation when it is on notice of possible harassment or discrimination, even without a specific complaint from an employee, it is very likely that the employer will be vulnerable to a complaint of failure to investigate the claim, among other problems.

If and when an employee, as many in the Sterling Jewelry case allege they did, complains of harassment and discrimination, the company must investigate promptly.  The declarations also assert that Sterling Jewelry knew about the alleged harassment and discrimination, even without any employee complaints, because managers participated in the objectionable activity.  Therefore, the declarations indicate that the company was put on notice of the alleged harassment and discrimination in two different ways.

The first thing the company should do is gather sufficient information to understand the scope of the issue.  The Sterling Jewelers employee declarations indicate that they gave their supervisors sufficient information to allow the company to understand the basic parameters of the issues.  With that information, a company can determine how best to investigate.

Once the company knows the nature and scope of the issue, the company’s next step should be to decide on an investigation plan and determine who will conduct the investigation.  In some cases, it makes good sense to assign the investigation to the company’s human resources department.  However, when members of senior management are involved, or there is an allegedly systemic problem, both of which allegedly were true at Sterling Jewelers, the human resources department is not the best investigator.  In fact, the investigation may reveal that human resources is part of the problem.

In cases where senior management is involved in the alleged wrongdoing, where a systemic problem is alleged, or the alleged facts otherwise preclude internal investigators from handling the matter, it makes sense to retain an outside investigator or law firm.  The investigator must be perceived, both by the employees who will be witnesses and by a possible future jury, as independent and impartial.  The investigator must establish trust with the employee witnesses and ensure that the employees are comfortable talking openly and fully with the investigator.  Very often, employees fear that they will face retaliation for telling the truth in an investigation.  Many Sterling Jewelers employees allege that they feared, or were subjected to, retaliation for making complaints about the alleged harassment and discrimination.  If the employees do not believe that the company’s assurances of no retaliation will be enforced, it will chill their willingness to complain or participate.  Likewise, if employees believe that the investigator is too close to the company’s management and will not conduct a fair and impartial investigation, employees may not speak truthfully, which will in turn compromise the integrity and usefulness of the investigative process.

When the investigation is complete, and the investigator has reached his or her conclusions, the company must take seriously its obligation to take corrective action to ensure that the workplace is safe and free from harassment and discrimination.  The company also must take action that will ensure that the inappropriate conduct does not recur.  Without these corrective steps, an investigation is meaningless and, in fact, may turn into a liability for an employer.

If the employer receives an investigation report that finds wrongdoing, but fails to take action, a plaintiff’s lawyer will have superb ammunition to support her client’s claims that the company knowingly permitted the harassment and discrimination to occur.

We likely will never know whether a thorough and competent investigation could have prevented or minimized the litigation against Sterling Jewelers.  Other employers, however, can learn from the Sterling Jewelers situation, investigate promptly, and make their workplaces more compliant with employment laws and company policies.

Ann Fromholz, a Workplace Investigation Attorney, can be reached at ann@lawthatworks.com.