In January, the South Dakota Supreme Court issued Harvey v. Regional Health Network, Inc., 2018 SD 3, 906 N.W.2d 382, wherein it affirmed summary judgment for the employer and dismissed the terminated employee’s claims for slander, malicious prosecution, intentional and negligent infliction of emotional distress (I/NIED), wrongful termination, breach of contract, and punitive damages. Harvey, who worked at a nursing home, claimed her termination was premised upon false reports of resident abuse by two coworkers who wanted her fired. She also argued the employer should be held liable for failing to conduct a thorough investigation of the co-worker reports, both before her termination and when the employer reviewed her termination via an internal grievance process, and for causing her to be criminal prosecuted for felony elder abuse. The case is instructive to the practitioner and employer on issues involving: (1) internal investigations, (2) mandatory reporting, and (3) employment policies:

1. Investigations/Decisions: Upon receiving a verbal report of employee misconduct (hitting a resident), the employer obtained written statements from two coworkers (one of whom had a good performance record, the other did not). Other coworkers were not interviewed. In recommending termination, a supervisor noted her own observation of other behavior consistent with the incident reported by the two coworkers. As applied to the I/NIED claims, the Court held that a failed or insufficient investigation did not rise to the level of outrageous conduct, even if the investigation was lacking. Similarly, the slander claim failed because there was no evidence that the speakers (supervisors and leadership) entertained serious doubt as to the truth of the publication (hitting a resident). Harvey is instructive to employers and practitioners particularly as it provides guidance on taking care to conduct sufficient internal investigations and, when possible, having the ultimate disciplinary decision being made by an individual who is not a witness to the conduct at issue in the investigation.

2. Mandatory Reporting: Harvey involved the employer making a mandatory report of alleged elder abuse to the Department of Health. Not only did the report form the basis of Harvey’s slander claim, but she also brought a claim of malicious prosecution (involving the prosecutor’s later decision to pursue criminal charges against Ms. Harvey). The employer did not report as quickly as required by the applicable reporting laws and did not comply with the Department’s requests for supporting documentation, resulting in a Department audit of the employer policies. Nonetheless, the Court upheld dismissal of the malicious prosecution claim, finding that the employer merely reported the conduct and allowed the authorities to do their jobs. Harvey reminds employers and practitioners to be mindful to (a) timely transmit any required disclosure; (b) provide all information learned in their own investigation; and (c) not advocate or otherwise get overly involved in the independent decision of an investigating agency or authority.

3. Policies: In Harvey, Court engaged in a lengthy analysis of the employer’s post-termination grievance procedure and whether the alleged failure to follow the procedure created a breach of contract claim. The Court ultimately answered this question in the negative. Significant to its holding was a review of the employer’s written policies, including: (a) express statements that the employment was at-will and that the terms in the handbook should not be regarded as promises for employment and do not create any contract; (b) reservation of the right to terminate for any reason with or without notice; (c) not having an “exclusive” list of reasons for which an employee could be terminated; (d) not having a mandatory progressive discipline policy; and (e) a grievance procedure that did not restrict the employer from terminating at will and did not require the employer to review the termination decision to make sure the policies/procedures were consistently applied. Employers and practitioners are encouraged to keep these concepts in mind when drafting or revising employment policies.

Also notable in Harvey was the Court’s refusal to expand the whistle-blower wrongful termination cause of action to an employee’s report to supervisors of concerns that her coworkers’ performance was “unsafe” and/or her request to place security cameras in the facility. On this issue, the Court noted existing law limit whistleblowing activity to “the reporting of unlawful or criminal conduct to a supervisor or outside agency”, and it noted to expand the law to include the cited report would wrongfully eviscerate the at-will doctrine in favor of judicial management of the employee/management relationship.

Recommendation is made for review of the Harvey decision in its entirety, as it provides a great analysis of multiple tort and contract claims that an aggrieved employee may seek to bring against an employer.

When hiring a new employee, many employers request that a potential employee sign what is often referred to as a “Release,” which is used to initial a background screening process. However, there are strict federal rules to which an employer must comply when obtaining this information.

Section 604(b)(2) of the FCRA specifically provides that “…a person may not procure a consumer report…for employment purposes with respect to any consumer, unless—

(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured…in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and

(ii) the consumer has authorized in writing…the procurement of the report by that person.”

The statute requires this disclosure in a completely standalone document, without any extraneous information. The document should be referred to as the “Disclosure and Authorization” form, with the intent being to inform the applicant that the employer may obtain a consumer report for purposes of the employment application process, and they are seeking the applicant’s written permission to do the same. The Fair Trade Commission has made clear as have the courts that Section 604(b)(2) does allow the authorization to be part of this standalone document and therefore certain identifying information may also be included to initiate a background check, like name, date of birth, and social security number.

Despite the clear language provided in the statute, many employers continue to include other information, including language asking the applicant to release the company and others from any liability and responsibility in connection with the consumer report, also known as a release of liability. While including this language may seem to make some business sense, it is in direct violation of the statutory requirements. Employers also add information about drug screening and company-specific policies to the

Some employers also add company policy language, drug screen information and other miscellaneous items. Some add this “Disclosure and Authorization” as part of their employment application, although it has always been clear that this “Disclosure and Authorization” cannot be part of some boilerplate language somewhere in the application, and the statute specifically provides that it must be separate in a standalone document.

Are you complying with the FCRA?

Feel free to give me a call at 605-731-0218 if you have any questions.

Likely the most important skill for a neutral to possess when trying to resolve a workplace dispute, or any dispute for that matter, is the ability to actively listen. While it might be logical to conclude that speaking and listening equally share the communication spotlight, this is not the case. Recent U.S. Department of Labor studies have shown that over half of all communication is accomplished through listening. Listening is more than just waiting for your turn to talk. Active listening has been described as hearing both the words and the music. Stated another way, active listening involves the mediator/neutral “…listening to and feeding back an interviewee’s emotions.” The Mediation Process, Fourth Edition, Christopher W. Moore.

Why is active listening a crucial skill to develop? In my experience there are two main reasons. First, most workplace disputes involve, at least on some level, a belief by one party that they have not had an opportunity to be heard or to tell their version of events. Everyone wants their “day in court” so to speak – it is human nature. Active listening helps achieve that. Secondly, workplace disputes are typically filled with emotions, often times negative emotions. Any time an individual’s livelihood may be at stake, negative emotions are understandable and expected. The sooner the parties to the dispute can feel that their version has been heard and understood, the closer the matter is to being resolved. Similarly, the sooner the negative emotions are released, the sooner focus can be placed on a rational solution to the dispute. Active listening is a skill essential to successful resolution of the workplace dispute. Outside of workplace disputes, active listening can help with interactions with colleagues, friends, and clients. Try focusing on listening to understand, rather than listening to respond – it will make a significant difference in nearly every interaction.

I will explore the seven steps to active listening in my next post. As always, please let me know if there are questions.

Preparing a workplace dispute resolution policy is not difficult, but it does require some thought by the employer and HR professional.

First and foremost, there needs to be some thought put into the decision regarding whether to even have such a policy. The primary motivating factor for nearly all employers is the time and cost of employment litigation versus handling workplace disputes internally. This internal dispute resolution is either handled by HR or through the use of an outside mediator or arbitrator. The latter has proven time and again to be a better and more efficient system.

Once the decision is made to adopt a workplace dispute resolution policy, the employer must determine what claims made by the employee will be covered by the policy and what claims will not be covered. While the list of claims that will be covered is quite lengthy, there are generally only a few claims that a policy will exclude. For example, claims for workers’ compensation and unemployment benefits must be pursued through a state administrative agency and are not properly governed by an internal dispute resolution policy. Often times ERISA/pension plans have their own internal dispute resolution plans which must be followed.

Further considerations in drafting such policies includes identifying the circumstances under which an outside mediator will be retained. Most sample policies provide that if a matter cannot be resolved satisfactorily by the HR professional, an outside mediator will be hired, at the employer’s expense, to attempt resolution of the claims. Should that effort fail, many policies then provide for binding arbitration by an arbitrator knowledgeable in employment law. The American Arbitration Association has a list of trained employment arbitrators and can assist the employer in developing the rules for arbitration and the administrative handling of the claims. As with mediation, the employer will bear all the expense of any arbitration.

Although adopting a dispute resolution policy proves to be beneficial, identifying those employment situations requiring dispute resolution, either internally or through the use of a mediator, is more of an art than a science. I am always here to provide assistance, so please let me know if there are questions or if you would like to explore this topic further.

My role as a “neutral”, to use the official jargon, necessitates that I am balanced in order to resolve conflict in the workplace and elsewhere. Some may joke that I am far from balanced, however, I take pride in my ability to be balanced when it comes to the subject of mediation or other forms of alternative dispute resolution in the workplace. The simple truth is this: Mediation works. It saves an organization time and money, and it is not something that should only happen when a formal complaint or lawsuit has been filed. Indeed, the closer to the origin of the conflict or dispute matters can be addressed, the higher chances there are to save both time and money.

The cost of conflict to an organization is high. Defending an employment-related lawsuit can easily approach $100,000 in legal costs alone. While employment practices coverage is fairly common these days, many cases (an estimated 81% by some sources) result in no payment by the insurance carrier. In other words, it is the EMPLOYERS deductible/retention money that is the first to go towards resolution or defense costs. The time spent by HR and other upper management can be staggering and have significant impact on the company. The average duration of an employment matter has been estimated to be 275 days.

The good news is that the vast majority of organizations recognize the cost-control effectiveness of alternative dispute resolution – a number on the rise since 1997, according to a study by Cornell University and Price Waterhouse. Nearly 90% of organizations responding to the 1997 study reported having used mediation as a means of resolving conflict in the prior three years. In addition to saving time and money, organizations have learned that allowing parties to resolve disputes themselves, with the assistance of a mediator, preserves working relationships, results in more satisfactory settlements, and was all-in-all a more satisfactory process.

Trained HR professionals can and should mediate disputes in the workplace, particularly those involving: personality conflicts, poor communication, strong emotions, misunderstandings, employee leave, benefits and pay are at issue. As always, however, if you are in doubt about you or your organization’s ability to mediate a particular conflict at hand, I urge you to seek the advice of your organization’s employment attorney.

When is it risky for the mediation to be handled by internal HR professionals? Because mediation is a voluntary process between the participants, when one participant refuses to allow HR to mediate, then it is time to see if an outside mediator would be a viable alternative. Another situation would be when HR cannot be balanced, or neutral, due to an obvious conflict of interest, or when HR’s impartiality is called into question on the particular matter at issue. Perhaps most importantly are those situations which have triggered the organization’s legal duty to investigate, or when the complaint/dispute is between the employee and the organization. In those situations, the organization is better off enlisting the services of an outside neutral mediator to work towards an amicable resolution.

Please feel free to contact me for further questions or discussion to learn how mediation can benefit your organization – saving your organization both time and money.

On Thursday, April 27, 2017, R. Alexander Acosta was confirmed by the U.S. Senate to head the Labor Department.  Acosta served on the National Labor Relations Board under former Republican President George W. Bush, who also appointed him to be assistant attorney general in the Justice Department’s Civil Rights Division.

Prior to his role with the NLRB, Acosta served as a law clerk to Samuel Alito from 1994 to 1995 when Alito was a judge at the 3rd U.S. Circuit Court of Appeals, prior to Alito joining the United States Supreme Court.  Interestingly, Acosta told the Senate Committee on Health, Education, Labor and Pensions during his confirmation hearing that he had reservations about certain Obama-era labor regulations.

Particularly relevant to prior blog posts we have had, Acosta expressed reservations about Obama’s changes to the overtime rule issued last year that more than doubled the salary ceiling under which employees would be eligible for overtime pay, from $23,660 to $47,476 a year.  As we previously discussed, the rule purported to extend overtime pay to more than 4 million salaried workers, but it was blocked by a federal judge in November 2016. Acosta said he had “serious questions as to whether the secretary of labor had the power to enact this in the first place.”

We will keep you apprised as to any developments in this area.

I am sure that everyone has heard some version of the quote, “Rules are made to be broken.” As an attorney, this makes me cringe. Often times when I am reviewing a file or talking to an employer I note that there is a handbook, manual, policy or other form of rules reduced to writing. Then, I dig deeper, and I find that while there may be all of these rules or policies written down, they are all too often not enforced. Simply having the rule reduced to writing does not somehow relieve all other responsibility if the rule is not followed and an employee is injured. It is alarming how many times employees are interviewed and questioned about a company handbook or policy manual and the question is met with a bewildered look and a response such as, “What handbook? We have one of those?!”

The day–to-day challenges involved in running a business make it difficult to ensure that employees are informed of the rules, and that managers do their jobs to enforce the rules. However, doing so is absolutely critical. Spending 15-20 minutes on a training for employees to discuss the company rules/policies will prove to be invaluable. Each employee needs to not only know where to look to find the company’s rules/policies, but they also need to know who to talk to about questions they may have. Further, training for managers who are tasked with enforcing the rules can prove to be extremely effective and prevent injuries to employees. Rules are not made to be broken – they are made to ensure the safety of the employees and promote an efficient and effective workforce. Emphasizing that the rules are there to protect the employees is key to helping the employees understand the importance of having them followed. I have seen too many times that an injury occurred that could have been avoided had an employee followed the rule/policy put into place. I have also seen too many times when an employer may have the rule, but it is only enforced sparingly, leading to a lackadaisical attitude amongst the employees regarding following the rules because they know if they don’t, there will be no negative repercussions.

If a rule/policy is violated, immediately address that with the employee and note it in their personnel file. It would be prudent to document the conversation and have the employee sign something acknowledging that the rule/policy was discussed with them as a result of their violation. It is much easier to address these issues before they become problems.

We are always happy to help your company draft rules, policies or manuals, and you can call our office to discuss doing so. However, ensuring consistent enforcement of the rules is up to you.

In a recent 8th Circuit case published on March 1, 2017, LaKeysia Wilson v. Arkansas Dept. of Human Services (DHS), Wilson, an African American woman, sued DHS alleging disparate treatment on account of race as well as a retaliation claim.

Another DHS employee, an African American woman, Sharon Meeks was fired in 2013 and filed a discrimination charge with the EEOC.  The State Appeal panel ordered her reinstated.  Meeks’s supervisor led the investigation resulting in Meeks’s termination.  The supervisor urged the plaintiff, Wilson, to apply for the same open program position for which Meeks had applied and told Wilson that she “was determined to thwart the efforts of Meeks.”  Meeks and Wilson were the only ones who applied for the job.  In March 2014, Wilson got the job, which was a promotion to program supervisor.  DHS then re-hired Meeks in Wilson’s old position, and fired her three (3) months later.

Weeks after Meeks was fired, Wilson began to receive what she claimed to be unfair criticism from her supervisor and was stripped of her supervisor duties on July 2, 2014.  She filed a charge of discrimination on September 8, 2014, alleging harassment based on race and disability.  Three weeks later, she was put on a performance improvement plan, and the next week she received a written warning for work that a Caucasian employee did not accomplish.  On October 22, 2014, six (6) weeks after filing the EEOC charge, Wilson was terminated.

The 8th Circuit affirmed the dismissal of the disparate treatment charge because Wilson did not state sufficient grounds to establish that she was treated differently than a Caucasian colleague.  As to the retaliation claim, Wilson was required to show (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) a causal connection exists between the two. See Wells v. SCI Mgmt., L.P., 469 F.3d 697, 702 (8th Cir. 2006).  The 8th Circuit found that Wilson sufficiently pled the first two elements, but the issue of the causal connection between the filing of the EEOC charge and the firing still existed.  The Court found that the six-week period between the EEOC charge and the termination plausibly alleged a casual connection.  The Court found that without a detailed explanation why DHS terminated Wilson, DHS’s alternative explanation for the firing was not “sufficiently convincing” finding that while the factual allegations may be consistent with termination due to poor performance, that was not an “obvious alternative explanation” rendering her claim implausible.

While DHS may ultimately be able to show that Wilson had performance issues sufficient to warrant her termination, the Employer takeaways from this case are clear:  Employers must document performance issues.  Employers must also take all complaints of discrimination seriously.  Also, as harsh as it may sound – hire slow, but fire fast, preferably before the employee with performance issues complains about discrimination.  Doing so will go a long way to avoid paying a lawyer to defend a retaliation claim.





As you know, the Occupational Safety and Health Act of 1970 was enacted for the purpose of ensuring the safety and health of employees by setting and enforcing certain standards in the workplace.  In furtherance of that mission, OSHA has the power to review settlement agreements between employers and employees under its authority to protect the administration of whistleblower statutes.

In August 2016, the Director of Whistleblower Protection Programs, Maryann Garrahan, issued a memorandum providing Interim Guidance to employers to aide in compliance with these standards.  This guidance supersedes the guidance in Chapter 6, paragraphs XII.E.2 and 3 of the OSHA Whistleblower Investigations Manual, but does not otherwise change OSHA’s policies with regard to review of settlements.  The Interim Guidance states that it is designed to “ensure that an employer does not contractually restrict or otherwise deter an employee from engaging in whistleblower activity and collaterally to help ensure that employees who do engage in such activity do so without fear or concern of retaliation.”

According to Garrahan, “OSHA will not approve a “gag” provision that prohibits, restricts, or otherwise discourages a complainant from participating in protected activity.”  Often, constraints of this kind arise from broad confidentiality or non-disparagement clauses, which OSHA interprets as restricting an employee’s ability to engage in protected activity. OSHA has provided other examples of prohibited provisions in its Interim Guidance, including prohibiting:

  • A provision that restricts the complainant’s ability to provide information to the government, participate in investigations, file a complaint, or testify in proceedings based on a respondent’s past or future conduct.
  • A provision that requires a complainant to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct.
  • A provision that requires a complainant to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employer has violated the law.
  • A provision that requires a complainant to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency.

So what does this mean?  Employers should immediately review their severance, settlement, and confidentiality agreement templates to ensure compliance with OSHA’s new guideline, and attorneys need to be aware of the same in drafting any such agreements.

For more information on this topic, you can visit http://bit/ly/whistleblower-guidelines.  There, you will find additional information, including guidance regarding avoiding language such as “except as provided by law” in your agreements, and what language should be used instead. If you have any questions, please feel free to call our office to discuss.

Thirty plus years of employment and worker’s compensation practice has exposed me to thousands of personnel files and interviews, not to mention my experience with what could easily be twice that many management-level employees. Those that manage employees or those charged with the responsibility of managing the business’ worker’s compensation claims routinely make four common mistakes:

1. Failing to consistently enforce the policies, rules and procedures of the company. An employer must be consistent with every employee and with every policy. Nothing is harder to explain than why the rule/policy/procedure was being enforced against Jane but not against John or others.
2. Failing to accurately report and document what goes on in the workplace. Many employment related claims turn on who said what to whom. In other words, the “she said, he said” credibility battle is at the crux of many disputes. Inaccuracy in your documentation will come back to haunt you every time.
3. Failing to use common decency and respect. Follow the Golden Rule we all learned as children: treat others as you would like to be treated.  This is a simple yet often overlooked rule.
4. Failing to document the personnel file. Although much has been written about the importance of documentation, it is remarkable the lack of documentation we see in many situations. Properly documented files leads to less confusion and can save everyone time and money in the end.

If you are interested in learning more about this topic, please contact the authors regarding more in-depth training we provide on these subjects and how to avoid these mistakes.