IN THIS ISSUE:

1. Feature Story: Supreme Court: Employees Who Cooperate In Internal Investigations Are Protected From Retaliation

2. Cathie's Corner: How Much Clearer Can We Be?

3. When Employees Butt Heads, Managers Need To Use Theirs

4. Free Report: How To Write Job Descriptions That Are Complete, Accurate, And Legally Sound

5. HR Soapbox: My Inbox Says... 

AHI's We Couldn't Make This Up
 

We all make mistakes — even the Department of Justice (DOJ). A DOJ spokesman accidentally e-mailed journalists a copy of a federal criminal complaint that happened to include a one-page list identifying almost 20 confidential witnesses in a $15 million fraudulent investment case. He sent an urgent follow-up e-mail asking the journalists to destroy the complaint. Whether they complied is anyone's guess.

 New I-9 Form Delayed Until April 3

The U.S. Citizenship and Immigration Services announced on January 30 that it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule that streamlines the Employment Eligibility Verification (Form I-9) process. Employers were originally required to begin using a revised Form I-9 beginning February 2.

The delay will provide the Department of Homeland Security with an opportunity for further consideration of the rule and also allows the public 30 days (until March 4) to submit comments.

1. FEATURE STORY:
SUPREME COURT: EMPLOYEES WHO COOPERATE IN INTERNAL INVESTIGATIONS ARE PROTECTED FROM RETALIATION

On January 26, the U.S. Supreme Court unanimously ruled that Title VII's anti-retaliation provision protects employees who speak out about discrimination while cooperating with their employer's internal investigation.

The 6th Circuit Court of Appeals had dismissed an employee's retaliation claim because she had not reported the discrimination on her own initiative or filed a formal charge with the Equal Employment Opportunity Commission (EEOC). The Supreme Court disagreed with the 6th Circuit, holding that one can oppose discrimination by responding to someone else's questions. "Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative, but not one who reports the same discrimination in the same words when asked a question," said the High Court.

Background: A Tennessee school district launched an investigation of rumors of sexual harassment by the employee relations manager. When an HR officer asked an employee whether she had witnessed "inappropriate behavior" on the part of the manager, the employee described several instances of sexually harassing behavior.

No action was taken against the manager, but the employee and two others who reported harassment during the investigation were fired soon after the investigation was completed. The reason given for the employee's termination was embezzlement. She claimed that the employer retaliated against her for reporting the manager's behavior.

The law: Title VII makes it unlawful for an employer to discriminate against an employee who: 1) has opposed an unlawful employment practice (known as the opposition clause), or 2) has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing (known as the participation clause).

Appeals court ruling: The 6th Circuit held that the opposition clause demanded "active, consistent" opposing activities, but the employee had not reported the discrimination on her own initiative. It also held that the participation clause did not cover the employer's internal investigation because it was not conducted pursuant to a Title VII charge pending with the EEOC.

SUPREME COURT SPEAKS 

In determining that Title VII's anti-retaliation provision covers employees who answer questions during an internal investigation, the Supreme Court found that "oppose" is not defined by the law, so it went by the words ordinary dictionary meaning: resisting or contending against. A person can "oppose" by responding to someone else's questions just as surely as by provoking the discussion, said the Court.

The Court did not consider whether the employee was covered by the participation clause since it had found that the employee was covered by the opposition clause. (Crawford v. Metropolitan Government of Nashville and Davidson County, TN, U.S. Sup. Ct., No. 06-1595, 2009)

SUPREME COURT SCOFFS AT FEARS OF INCREASE IN RETALIATION CLAIMS 

Although you may find it disconcerting that investigations into discrimination claims could be more open to charges of retaliation, the Supreme Court doesn't believe that employers will be less likely to conduct internal investigations, as the employer in this case had tried to argue. Reason: Employers have a "strong inducement to ferret out and put a stop to discriminatory activity"; that is, the potential to be held vicariously liable for harassment by a supervisor. To rule otherwise would undermine the intent of the law and give employees "a good reason to keep quiet about Title VII offenses."

The strongest weapon in the hands of a lawsuit-hungry employee and his/her attorney is often a poorly written or outdated employee handbook.

Join us for a web conference that will help you defuse that weapon before it can be turned against you....

EMPLOYEE HANDBOOK HAZARDS: Spotting Mistakes And Omissions That Your Employees Could Use Against You

Live Web Conference

Tuesday, February 10, 2009
1:00 PM - 2:30 PM Eastern Time

Register Today! 

• This live web conference will help you to disarm the legal time bombs in YOUR employee handbook by identifying the mistakes and omissions that could land your organization in an employee lawsuit.
  
• Plus, 2008 brought new laws such as the ADAAA and GINA, along with the new FMLA regulations, all of which may require that changes be made to your handbook now to ensure you are in compliance. 

Visit our website to read the course outline or register. Or, if you prefer to register by phone, please call 800-879-2441 and mention conference code: G13642.

2. CATHIE'S CORNER:
HOW MUCH CLEARER CAN WE BE?

I always thought our website was pretty well done. It has all the information about the various policies, benefits, etc., and it is arranged in such a way that it is easy to find things. But when I realized that I was answering the same questions over and over, I started to wonder if we should reconsider the arrangement....Continue the story.

3. WHEN EMPLOYEES BUTT HEADS, MANAGERS NEED TO USE THEIRS

Sometimes co-workers just don't get along —  there's no illegal harassment or discrimination going on, or over-the-top bullying or fisticuffs, just plain old personality conflicts. That's fine — people don't have to like each other in order to work together effectively. But it is up to you to rein in employees and stop these conflicts from having a negative impact on your department....Continue the story.

4. FREE REPORT: HOW TO WRITE JOB DESCRIPTIONS THAT ARE COMPLETE, ACCURATE, AND LEGALLY SOUND
 

Check out the new Free Report, "How To Write Job Descriptions That Are Complete, Accurate, And Legally Sound," which provides you with nine universal steps every employer can take to write solid job descriptions that keep your organization in step with the ADA Amendments Act (ADAAA) and the new Family and Medical Leave Act (FMLA) regulations.

5. HR SOAPBOX: MY INBOX SAYS...

An article that appeared on Yahoo! HotJobs advised readers to think of their e-mail inbox as a metaphor for their personality. The article went on to say that most readers probably fell into one of two camps: the Perfectionist or the Procrastinator. Two AHI co-workers square off on which Outlook® inbox management style works best for them....Continue the story.