LABOR AND EMPLOYMENT

By Kristina E. Curry Labor & Employment Section, Pickrel Schaeffer & Ebeling, Co., LPA Legal Updates on Employer Confidentiality Rules During Workplace Investigations:

On December 16, 2019, the National Labor Relations Board (“NLRB”), in Apogee Retail LLC d/b/a Unique Thrift Store (“Apogee”), held that employer rules that require employees to maintain confidentiality during investigations of employee misconduct are lawful under the National Labor Relations Act, (“NLRA”). The Board overruled its holding in Banner Estrella Medical Center (2015), which required a case-by-case determination of whether employers could mandate confidentiality during workplace investigations. The Banner standard required employers to show specific evidence that witnesses in an investigation required protection, that evidence was in danger of being destroyed, or that testimony was actually in danger of being fabricated. While the Banner test had sought to protect the rights of employees to discuss the terms and conditions of their employment, the Apogee standard recognizes both the need to protect employees from undue influence during an investigation, as well as the employer’s interest in conducting a fair investigation that leads to the disclosure of all facts and circumstances. The Board stated, “Confidentiality assurances during an ongoing investigation play a key role in serving both the interests of employers and employees.” In Apogee, the Board rejected the Banner test as having “abandoned its obligation to balance employee and employer interests” by shifting the burden on the employer to prove that its own interest in a particular investigation outweighed the interests of employees’ interests as it pertained to Section 7 rights. Instead, the Board in Apogee applied the standards it set forth in Boeing Company (2017). In Boeing, the Board overturned prior rulings holding employer work rules must be analyzed in light of whether a worker would interpret a rule as restricting NLRA Section 7 provisions guaranteeing to workers “the right….to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Boeing held that work rules that require employees to keep ongoing investigation matters confidential do not interfere with employee’s right to engage in concerted activity when balanced against employer’s compelling business justifications. Applying the Boeing analysis, Apogee held employers may lawfully establish work rules that require employees to refrain from discussing matters or revealing information pertaining to any investigation of employee misconduct while the investigation is open and ongoing.

The Board set forth the most compelling reasons underlying an employer’s need for confidentiality during an ongoing investigation: (1) to ensure the integrity of the investigation, (2) to obtain and preserve evidence while employees’ recollection of relevant events is fresh, (3) to encourage prompt reporting of a range of potential workplace issues—unsafe conditions or practices, bullying, sexual harassment, harassment based on race or religion or national origin, criminal misconduct, and so forth—without employee fear of retaliation, and (4) to protect employees from dissemination of their sensitive personal information. The Board concluded that these interests could not be served under Banner, because employers were required to disclose to employees that it could not guarantee confidentiality. This requirement itself might have been “enough to chill employees into silence.” Furthermore, “without an investigative confidentiality rule, employees would have no defense against pressure—potentially intense pressure, even threats—from other employees to reveal what was asked and said. An investigative confidentiality rule gives employees a plausible defense against such pressure: “Sorry. I can’t talk about it. If I did, I’d get fired!” In addition to providing employees with a defense against pressure to reveal what they know about an investigation to others, even potentially to the person that the employee has lodged a complaint against, the Board acknowledged that investigations often reveal other sensitive employee information, such as allegations of substance abuse, improper computer and internet usage, allegations of theft, violence, sabotage, or embezzlement. Employers should make clear to all employees that it will not only protect the employee’s confidentiality in having made an allegation against another employee but will enforce confidentiality rules throughout an investigation. This is particularly important during employer investigations of sexual harassment, discrimination complaints and reports of safety violations in the workplace. Protecting Employees AND Employers

What's Happening@ the DBA

For Up-to-Date DBA Event Info visit daybar.org

February is DBA Member Appreciation Month! WE OUR MEMBERS Are you making the most of your DBA Membership?

February

712:00pm

Chancery Club Luncheon @ The Old Courthouse Raffle lunch for 2 at Boosalis. Roundtable discussion and Boosalis will also be catering.

15 8:30am training 10-2pm appointments

17 & 19 9:00am

Wills for Heroes @ FOP Hall 4275 Powell Rd., Huber Heights, OH Attorney's and legal professionals are invited to volunteer for these events.

Workplace Safety @ DBA Offices FREE training for members and their staff via Dayton Police Department.

21 11:30am

22 9:00am

26 5:00pm

28 7:00am

Popcorn, Pizza and a Movie @ the Court : "A Few Good Men" @ Judge Wiseman's CourtRoom You can't handle the truth...or the fun! Join us as gather and watch this 90s classic film.

3rd Annual Volunteer Day @ The FoodBank Dayton Join us as we partner with the OWBA to pack backpacks & fill boxes of food for those in need.

DBA Mentor/Mentee Event @ DBA Offices More info to follow.

Cori Haper and Marissa Weatherly at Kick-Off of the Diverse Law Student Mentoring Program

Kick-Off of the Diverse Law Student Mentoring Program

By Cori R. Haper Thompson Hine LLP

On January 15, 2020, students and lawyers from the Dayton legal community met at the University of Dayton School of Law to kick-off the Diverse Law Student Mentoring Program for the Spring 2020 semester. 16 mentoring pairs will be participating in the program. The mentoring program was organized through the Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable and UDSL, and is led by Marissa Weatherly, a 3L law student at UDSL, and Cori Haper, a partner at Thompson Hine LLP. Julie Zink, Professor and Assistant Dean of Diversity, Equity, and Inclusion, is the UDSL faculty sponsor of the mentoring program and was responsible for arranging the venue and delicious food. The purpose of the mentoring program is to provide encouragement, support, and training to diverse law students, while strengthening their ties to Dayton and building their professional relationship in the Dayton community.

Andy Strauss, Dean of UDSL, spoke about the importance of the mentoring program for UDSL diverse law students. Wray Blattner, Partner at Thompson Hine LLP, spoke about the legal roundtable’s commitment to increasing the diversity, equity, and inclusion of the Dayton legal community through the mentoring program and other initiatives.

Marissa and Cori explained how the program works and expectations for participating in the program. Mentoring pairs are asked to commit to a minimum of one hour per month in mentoring activities, and to maintain consistent communication throughout the program. Each month, the mentoring pairs will receive an email with a topic of discussion, along with talking points and/or activities. The curriculum includes topics such as branding and self-awareness, academic success, public speaking & effective communication, networking, and ethical obligations. Following the presentation, students and lawyers participated in a table talk discussion about the qualities that contribute to a successful mentor and mentee relationship.

“The key to developing inclusive spaces within the legal field and creating a pipeline of diverse lawyers and judicial professionals lies within mentorship programs. While it is important to create channels for aspiring lawyers of color to apply to law school and gain a foothold within the legal profession, mentoring is a critical component to retain lawyers of color and ensure their success. The secret of mentoring lies within the advice provided from established lawyers who assist early-career lawyers or law students in navigating the legal field.”

ABA, Inclusive Legal Spaces: The Importance of Diverse Mentoring https://www.americanbar.org/groups/litigation/committees/minority-trial-lawyer/practice/2018/ inclusive-legal-spaces-the-importance-of-diverse-mentoring