Again, one of the mighty has fallen.  Super Bowl winner, ESPN commentator, and the highest paid coach in the NFL follows the path of Harvey Weinstein, Matt Lauer, Andrew Cuomo and so many others in losing his job, his reputation, and probably his career due to abhorrent behavior which remained under wraps for years.  The downfall came after the Wall Street Journal leaked an email from 2011 wherein Gruden referred to the executive director of the NFL Players’ Association, an African American, with an insulting racial slur while communicating with an NFL team executive.
Continue Reading Lessons Learned from the Latest NFL Scandal: Does the Downfall of Jon Gruden Teach Us Anything New?


On June 13, 2017, Uber released to its employees excerpts of a damning independent investigation report authored by independent investigators Eric Holder and Tammy Albarran, attorneys with the law firm of Covington & Burling LLP.  On February 19, 2017, former Uber engineer Susan Fowler published a blog post detailing allegations of harassment, discrimination and retaliation at the company during her tenure.  She also decried the ineffectiveness of Uber’s policies and procedures in addressing such workplace issues.  The very next day Uber hired Former Attorney General Holder and his law firm to conduct a review of  the issues raised by Fowler as well as diversity and inclusion more broadly at Uber.
Continue Reading Holder’s Advice to Uber: Focus on Tone at the Top, Trust, Transformation and Accountability

On March 24, 2017, the United States Court of Appeals for the District of Columbia Circuit in Banner Health System v. NLRB, 851 F.3d 35 (D.C. Cir. 2017) again declined to rule on the National Labor Relations Board’s (“NLRB” or “Board”) position that employers cannot prohibit discussions of matters under investigation absent a specific, case-by-case determination supporting the need for confidentiality. As a result, the Board’s position that employers violate Section 8(a)(1) of the National Labor Relations Act (NLRA) by restricting such discussions absent case-specific evidence that “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up” continues in force, with no clear disapproval from the courts.
Continue Reading NLRB’s Case-By-Case Scrutiny Standard For Investigative Confidentiality Rules Continues

I recently attended a 2-day training program in Boston conducted by the Massachusetts Commission Against Discrimination (MCAD) called Conducting Internal Discrimination Complaint Investigations. This was a high quality training program that incorporated carefully thought out modules with practical exercises conducted by Rebecca Shuster, Director of Training at MCAD, and Attorney Judy S. Kalisker, Principal, Compliance

Even when an employer takes prompt remedial action to defeat a sexual harassment claim, it may still be liable for retaliation.  A NH employer was reminded of this recently in Rand v. Town of Exeter (11-CV-55-PB) (10/2/13).

Brenda Rand worked as a solid waste transfer operator for the Town’s Highway Department.  Rand alleged that a

In July 2012 the National Labor Relations Board (“NLRB” or the “Board”) issued its decision in Banner Health System and James A. Navarro essentially instructing those of us who conduct workplace investigations to avoid our standard “please keep what we discussed confidential”  admonition to witnesses lest we find ourselves and our clients in violation of

A dilemma for certain for employers…internal investigations can be time-consuming, intrusive and costly; and if done incorrectly, the company can be exposed to considerable liability.  So when is it appropriate to bring someone in from the outside to look into allegations of improper behavior in the workplace?

Seasoned human resource professionals are more than qualified

The United States District Court decision issued on February 22, 2013, Walker v. N.H. Administrative Office of the Court (“AOC”), in which it ruled on what portions of an employer’s investigation file should be turned over to the plaintiff.  The case was filed by the Administrator of the estate of the former clerk of a