In a landmark decision, the U.S. Supreme Court expanded protections for whistleblowers under the Sarbanes-Oxley Act (“SOX”).  In February 2024, the Court decided Murray v. UBS Securities, LLC.  It held that a whistleblower does not need to prove that their employer acted with “retaliatory intent” in taking an adverse action against the employee.   

VM Recommends is a monthly feature where members of our Team give suggestions on podcasts, television, movies and books for you to spend time with.

This month hear from our Sacramento Business Operations Analyst, Emma Newton.

VM Recommends is a monthly feature where members of our Team give suggestions on podcasts, television, movies and books for you to spend time with.

This month hear from our Los Angeles Managing Partner, Daphne Pierre Bishop.

To admonish or not to admonish? That is the question - again.

At VM, we know workplace investigations. It’s what we do, every day. But we are always retained as external attorney investigators. Conducting an independent investigation as an external attorney investigator can be quite different from conducting an investigation as an internal human resources or compliance professional.

VM Recommends is a monthly feature where our Team members give suggestions on the best podcasts, television shows, movies and books they've discovered recently.

For August, see what our 2023 Law Clerk Olivia Totten is recommending.

Consider this. It is an ordinary Monday. You receive notice of a complaint of sexual harassment. Maybe it is by or against a valuable, high-performing executive. Maybe it is by or against a one-month employee you are just getting to know. Either way, yours is a fascinating and challenging job. Your policy says the complaint must be investigated. But by who? Should you direct this investigation to an in-house investigator, or go to a third-party investigator?

It can be a refreshing treat when an investigator gets to jump into an investigation where some evidence has already been gathered, and they have at least some idea what the parties are going to say.  The ultimate fruit of the investigation, the findings, are almost always much easier to reach quickly when there are prior statements to rely upon. 

The many iterations of Title IX regulations in recent decades have resulted in a difficult compliance landscape for schools to navigate. Most recently, the 2020 Title IX regulations mandated hearings for qualifying conduct, and included specific requirements educational institutions must adhere to when conducting those hearings.

Education leaders can rest a little easier this summer – the Title IX federal regulations slated for a May 2023 release have been delayed until October 2023, per a federal Department of Education (DOE) announcement. Why the delay? An unprecedent 240,000+ comments were submitted regarding the proposed regulations, and the DOE must respond to every last one of them.

Workplace investigations are increasingly in the public eye.  Consider the Phoenix Suns, where an investigation sustained claims of race- and gender-based misconduct against the former owner, Robert Sarver, resulting in a one-year suspension and $10 million fine. Or Uber, which fired 20 employees after an investigator interviewed 200 people about workplace culture.

Investigators, particularly those who perform investigations in the public sector, often conduct interviews where a witness or respondent will have a union representative present. Some investigators are intimidated or put off by the presence of a union representative because they presume the representative will be obstructive, disruptive, or adversarial. While that is sometimes the case, more often than not, the presence of a representative can aid in the gathering of relevant evidence.

Sometimes the lines between our personal social media and our workplace becomes blurred. Statements we make on social media can sometimes impact the workplace. Many employers have social media policies to regulate not only speech on the job, but also off-duty speech. Public employers have to avoid infringing on their employees’ First Amendment rights.

As investigators, we often find ourselves responding to tumultuous situations, but we are not the only ones. Most of the time, a complaint is filed before an investigation begins. Sometimes complaints are filed in writing, but many times a complaint is first raised verbally, to a trusted individual, such as a supervisor, a human resources staff member, a teacher, a principal or other administrative staff. How the complaint is addressed in that moment can affect the entire complaint resolution process.

I recently came across the following anonymous quote “Learning from your mistakes makes you smart. Learning from the mistakes of others makes you wise.” So true. Nowadays, employers’ mistakes sometimes end up on the proverbial “front page” for all to see. While embarrassing and often damaging to the organization, we have the opportunity to learn from these public missteps. One recent example is the NBA’s investigation of Phoenix Suns owner, Robert Saver.

It should come as no surprise that different employers have different investigative needs.  Thus, good investigators should be prepared to provide some flexibility in the form of the final written work product they provide.  Sometimes an employer needs a highly-detailed, comprehensive investigative report.  Other times, an executive summary is preferable.  In other cases, the client may desire separate reports. 

Witness interviews are often the cornerstone to successful workplace investigations. In order for an interview to be effective, it is important that the witness feel comfortable being forthright with the investigator. So, how do you respond as an investigator when a witness asks if “Can you keep my information confidential”?

As anticipated, on June 23, 2022, the 50th anniversary of Title IX’s enactment into law, the Biden Administration’s Department of Education released a Notice of Proposed Rule Making (NPRM) in an effort to modify existing Title IX regulations.

Balance is key. We often hear that concept applied to many things in life, so it should come as no surprise it also applies to workplace investigations. Most pertinently, investigators need to manage FOMO – “Fear Of Missing Out.” While it might not seem obvious that FOMO exists in investigations, I am here to tell you it does.

Title IX is a federal law, enacted 50 years ago, which prohibits sex discrimination in federally funded educational programs and activities for schools and universities throughout the Country. This article outlines some of the new, as well as the existing, terms, which apply to Title IX investigations and hearings in California