The National Labor Relations Board has had a busy few weeks. As we noted in late August, the NLRB approved a Final Rule requiring employers to post a notice of employees’ rights under the National Labor Relations Act. The Board also issued two significant decisions which will help protect unions from challenges to their majority status.

The first case, Lamons Gasket Co., overturns Dana Corp., a 2007 decision holding that when an employer voluntarily recognizes a union based on a showing of majority support, the employer has to post a notice of employees’ rights to petition for an election and challenge the union. Upon posting and a 30% showing, employees could then file a decertification petition within 45 days.

Chairwoman Liebman had made it clear that given the chance, Dana Corp. would be reversed. The opportunity presented itself in Lamons Gasket, where a Board majority simply overruled Dana Corp. Accordingly, the majority status of a union recognized voluntary by an employer may not be challenged by employees for a “reasonable period of time.” The Board defined a “reasonable period of time,” by adopting the definition used in Lee Lumber & Building Material Corp.; not less than six months, but no more than one year.
 

At the same time it decided Lamons Gasket, the Board decided UGL-UNICCO Service Company, which addresses whether an incumbent union should enjoy a period of time insulated from challenge to its majority status where there has been a change in employers due to a merger or acquisition. A long line of Board cases have gone back and forth on this issue.
In general, where there is a change in a unionized corporate entity due to a merger or acquisition, a successor employer that hires a majority of the bargaining unit employees must recognize and bargain with the incumbent union. However, the successor employer has no obligation to adopt the predecessor’s collective bargaining agreement, and may unilaterally set its own initial terms and conditions of employment while bargaining.

Moreover, ever since the NLRB’s decision in MV Transportation, an incumbent union enjoyed only a rebuttable presumption of majority status. The union was presumed to have maintained support of a majority of the bargaining unit employees. However, upon a showing that the union had lost such support, an employer could unilaterally withdraw recognition or a petition for election could be filed by employees or a rival union.

UGL-UNICCO Service overrules MV Transportation, and holds that following a change in corporate entity, an incumbent union’s majority support may not be challenged at all for a “reasonable period of time.” The Board went on to hold that a “reasonable period of time” depends on whether the successor unilaterally sets initial terms and conditions of employment. If the successor adopts the collective bargaining agreement in effect between the predecessor employer and incumbent union, the union may not be challenged for six months, beginning from the time of the first bargaining session. Where, however, the successor unilaterally sets its own initial terms and conditions of employment, the reasonable period of time will be a minimum of six months and a maximum of one year.
 

On September 8, 2011, the Occupational Safety and Health Administration (OSHA) issued its first ever Compliance Directive to address workplace violence. In the past, OSHA had issued citations to employers for exposing their employees to workplace violence -- until Administrative Law Judge Nancy Spies issued her decision in the Megawest Financial case in 1995. In that case, OSHA attempted to use the General Duty Clause of the Occupational Safety and Health Act—which imposes a duty upon employers to keep their workplaces free of “recognized hazards”—to argue that because there had been earlier attacks on employees by tenants of an apartment complex, the employer was liable when employees were again attacked by tenants. Judge Spies rejected that argument, finding the Act was not intended to “police social behavior” and that employers may reasonably believe “that the institution to which society has traditionally relegated control of violent criminal conduct, i.e., the police, can appropriately handle the [violent criminal] conduct.” Since then, OSHA has issued few workplace violence citations.

Judge Spies is now retired, and OSHA is taking another bite at the apple. OSHA’s new directive contains a laundry list of recommendations for “all industries and administrative workplaces.” These include conducting a workplace violence hazard analysis, revising the physical plan of the workplace, training employees, and implementing “engineering controls” that may even include hiring a security consultant.

Employers are required to keep their workplace free of “recognized hazards,” but inherent in that requirement is the assumption that employers can control the condition for which it may be cited. For this reason, OSHA’s attempt to hold employers liable for violent, criminal acts of third parties—who are beyond the control of employers—is troubling.
 

The major concessions agreed to by CSEA in negotiations with New York State have been well publicized. The details of the 5-year deal include a wage freeze for the first three years, 2% increases in each of the last two years and immediate increases in employee contributions toward the cost of health insurance. The deal, which covers 66,000 State employees, will save New York $73 million in the first year alone. In turn, CSEA obtained a no-layoff pledge from Governor Cuomo for the first two years of the contract. Governor Cuomo had been threatening to layoff nearly 10,000 State employees if a contract could not be reached. Will other unions follow CSEA’s lead and accept this kind of deal?

Rick Karlin has an interesting article in the Albany Times-Union addressing this issue.  According to the article, when asked about the odds of such a deal repeating itself at the local level, a CSEA spokesperson responded “If history is any precedent, zero.” But other reasonable unions may be getting the picture. The Syracuse Post-Standard reports that City of Syracuse firefighters ratified a two-year deal that includes two zero’s, along with increased contributions by the firefighters toward health insurance. In the most recent interest arbitration decision in New York, Oswego firefighters were awarded a 0% wage increase in the first year and 2% in the second year.

With a local, public sector workforce in New York that is five times the size of the State workforce, local union contracts that contain at least some of the State CSEA concessions will result in significant cost-savings for local governments. In light of the impending 2% property tax cap, this could be critically important to the fiscal health of local governments.
 

In an earlier post, we reported that the National Labor Relations Board issued a complaint in a case involving the discharge of several employees for posting Facebook messages related to a co-worker’s criticism of their work performance. The case subsequently went to trial before an Administrative Law Judge. On September 2, the ALJ issued an opinion finding that the firings violated the NLRA by interfering with the employees’ right to engage in “concerted activity for the purpose of … mutual aid or protection.”

The Facebook postings occurred after one of the discharged employees learned that a co-worker had complained about the job performance of several employees and had expressed her intent to take the complaints to management. The employee who learned of the criticism posted a message on her Facebook page soliciting comments from other employees about the complaining co-worker’s criticism, and used the co-worker’s name. Predictably, several employees responded expressing various negative opinions about the criticism, the complaining co-worker, and the difficulty of various aspects of their jobs. None of the employees made the posts during work time, and none of them used a work computer. The employer’s Executive Director subsequently met with the five employees and fired all of them for harassment and bullying in violation of the employer’s anti-harassment policy.
 

The main issue in the case was whether the conduct in which the employees had engaged was protected concerted activity within the meaning of the NLRA. Relying on analogous NLRB precedent, the ALJ noted that expressions related to defense of job performance are protected activity. In response to the employer’s argument that the activity was not “concerted” because it was individualized, the ALJ concluded that the activity was concerted because the employees’ Facebook messages were the first step toward group action to defend themselves against accusations they could reasonably believe would be brought to management. The opinion states that: “Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7. That is particularly true in this case, where at least some of the discriminatees had an expectation that [the complaining co-worker] might take her criticisms to management.”

Finally, the ALJ rejected the employer’s argument that it was merely enforcing its anti-harassment policy. The Judge concluded that the policy, which prohibited harassment based on protected characteristics, was not violated because there was no evidence the complaining co-worker was harassed, and no evidence she was harassed based on one of the protected characteristics listed in the policy.
 

The U.S. Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) recently issued a proposal to revise the Scheduling Letter and itemized listing of documents which federal contractors are required to submit during an affirmative action compliance audit.  The OFCCP’s current Scheduling Letter and itemized listing will expire on September 30, 2011.

The OFCCP is seeking to both add new requirements and make changes to existing data requests. The proposed modifications include:

1. Adding two new items which require submission of employment policies covering the FMLA, pregnancy leave, and accommodations for religious observances and practices and also submission of the last three years of contractors’ Veterans’ Employment Reports (VETS-100 and/or VETS-100A).
2. Clarification of information requested in connection with collective bargaining agreements and information on reporting requirements for the preceding year.
3. Changes to current employment activity requests to require submission of more detailed demographic information related to hires, applicants, promotions and terminations, as well as requiring data submissions by job group and job title, instead of by job group or job title. In addition, the proposals would require more detailed demographic information on compensation by submitting aggregate data as opposed to disaggregate data.
    

 

OFCCP ’s Director, Patricia Shiu, stated in a webchat held on July 12, 2011 that the OFCCP will review the “few comments received” and “will make a determination regarding the letter and the itemized listing in the very near future.” She further stated “our goal is to complete our consideration of the comments, any revisions needed, and return the document with any appropriate revisions to OMB by no later than the end of July.” Shiu added that the OFCCP will follow Office of Information and Regulatory Affairs protocol and will provide a second public comment period prior to issuing a final Scheduling Letter and itemized listing. Although the current Scheduling Letter and listing are set to expire September 30, 2011, Shiu stated “we do not anticipate that an emergency extension will be needed.”

The second comment period regarding the OFCCP’s proposed Scheduling Letter changes has not been announced. However, it appears fairly certain that Scheduling Letter changes will be enacted for audits conducted after September 30, 2011.
 

As described in a September 2010 post, the Patient Protection and Affordable Care Act of 2010 (the "Act") generally prohibits all group health plans and health insurance issuers (including grandfathered plans) from imposing annual or lifetime dollar limits with respect to certain "essential health benefits" (as defined in Section 1302(b) of the Act) for plan years beginning on or after September 23, 2010. For plan years beginning prior to January 1, 2014, however, plan sponsors may apply certain "restricted annual limits" ("RAL") in accordance with the interim final regulations, issued jointly by the Internal Revenue Service, the Department of Labor, and the Department of Health and Human Services ("HHS") on June 28, 2010.

The RALs are intended to provide transitional relief to certain group health plans and health insurance issuers that currently impose annual limits on essential health benefits. However, in recognition of the difficulties that the annual limit requirements would create for existing limited benefit plans, or "mini-med" plans (e.g., a temporary health insurance plan with a $10,000 annual limit on essential health benefits), the Act authorized HHS to establish an annual limit waiver program for eligible plans or policy issuers. The waiver program is described in the June 28, 2010 interim final regulations ("IFR").

On September 3, November 5, and December 9, 2010, HHS's Center for Consumer Information and Insurance Oversight ("CCIIO") issued guidance, which explains the requirements for the annual limit waiver application process. Waivers previously granted in accordance with that guidance are valid for one year.
 

September 22 Deadline: On June 17, 2011, the CCIIO issued supplemental guidance which includes procedures for obtaining an extension of existing waivers, and revisions to the application process for new applicants. Additionally, the supplemental guidance requires plans or policy issuers to provide eligible participants and policy subscribers with an "Annual Notice," provide HHS with an annual update, and retain waiver-related records in case of an HHS audit, as described below. Significantly, HHS announced that all waiver extension requests and new applications for waivers must be received on or before September 22, 2011. New application and extension request forms are available on the CCIIO's website. Plans or policy issuers that do not receive approval for an extension or waiver will be required to come into compliance with the annual limit rules under the Act and the IFR.

Extensions for Plans or Policy Issuers with Existing Waivers: Plans and policy issuers that wish to extend existing waivers (i.e., those received for the plan or policy year beginning on or after September 23, 2010, but before September 23, 2011) must request a waiver extension by submitting the extension request form described above. The request should include updated contact information, enrollment information for the plan or policy, the plan's or policy's current annual limit, and a signed attestation that the plan or policy continues to satisfy the eligibility criteria for obtaining a waiver. Once the initial waiver extension is granted, plans or policy issuers must submit the same information at the end of each applicable calendar year (i.e., December 31, 2012 and December 31, 2013).

Existing waivers may be extended until January 1, 2014, so long as the plan or policy issuer: (1) provides the information described above by the end of each calendar year for which the extension applies; and (2) retains all records pertaining to the waiver application in the event of an HHS audit (see discussion below).

For New Waiver Applicants: Under the supplemental guidance, a plan or policy-issuer is eligible to apply for a new waiver if: (1) the plan or policy was issued prior to September 23, 2010; (2) the plan or policy issuer (with respect to the policy) has never applied for or been granted a waiver; and (3) the plan or policy coverage does not exceed the RAL amount for the applicable plan year (see footnote 1). New applications will be reviewed using factors listed in the CCIIO's November 5, 2010 guidance. Applicants may also submit optional supplemental information to demonstrate how the plan's or policy issuer's compliance with the IFR (in the absence of a waiver) would result in a "significant decrease in access to benefits" or a "significant increase in premiums."

Annual Notice Requirement: Under the CCIIO's December 9, 2010 guidance, plans or policy issuers with existing annual limit waivers must provide an "Annual Notice" informing all eligible participants and subscribers that the plan or policy does not satisfy the minimum restricted annual limits for essential health benefits and has received a waiver of the requirement. Mandatory language for the Annual Notice is provided in the June 17, 2011 supplemental guidance. Plans or policy issuers may not use other notice language to satisfy this requirement, unless the plan or issuer obtains permission from the CCIIO. The Annual Notice must be provided each year the annual limit requirements are waived, and must be provided conspicuously, in bold 14-point font, on the front of plan or policy materials that describe the plan's or policy's terms of coverage (e.g., summary plan descriptions).

Record Retention: Plans or policy issuers with existing waivers must retain all waiver-related records (including documentation used in supporting the plan's or issuer's original waiver application). If, during audit, HHS determines the waiver data provided by an applicant contains material mistakes or omissions, HHS may withdraw the waiver or extension, and require the plan or policy issuer to come into compliance with the annual limit rules under the Act and IFR.

ACTION REQUIRED: Plans or policy issuers seeking to extend existing waivers or to apply for new waivers should prepare (or have prepared) extension requests or new applications in accordance with the requirements and procedures contained in the CCIIO's June 17, 2011 supplemental guidance, for submission on or before September 22, 2011.

Plans or policy-issuers that have been granted a waiver or extension should review the revised compliance requirements described in the supplemental guidance, which include providing an annual update to HHS, providing an Annual Notice to all eligible participants and policy subscribers, and retaining all waiver-related records to avoid issues that could arise in an HHS audit.
 

In December 2010, we posted on the National Labor Relations Board’s (NLRB) proposed rule that would require private sector employers to post a notice advising employees of their right to join a union and of their other rights under the National Labor Relations Act (NLRA). On August 25, the NLRB adopted, by a 3 to 1 vote (Member Hayes dissenting) the Final Rule requiring the workplace notice. The Final Rule is scheduled for publication in the Federal Register on August 30 and will go into effect 75 days from that date, on November 14, 2011.

As we discussed in our earlier post, the notice will be an 11x17 inch poster, detailing employees’ rights under the NLRA. It also provides the NLRB’s contact information for use in the event an employee believes there has been a violation of the NLRA. The notice will have to be posted by November 14 both in hard copy at the worksite(s) and electronically on an internet or intranet site, if the employer customarily uses such electronic sites to communicate with employees about company rules and policies.

Despite the 7,000 comments received during the comment period, there were very few changes to the proposed rule. In particular, the Final Rule does not require that employers email the notices to employees or that the notices be printed in color. In a very small victory for management, the Final Rule does include language regarding an employee’s right to refrain from union activity.
 

The Final Rule sets forth three possible consequences for failure or refusal to post a notice. First, such failure may be grounds for an unfair labor practice charge under § 8(a)(1) of the NLRA, which prohibits employers from interfering with, restraining or coercing employees with regard to the exercise of rights granted under the NLRA. Second, failure to post the notice may extend the six-month statute of limitations period for filing an unfair labor practice charge, unless there is evidence the employee had actual or constructive notice that the conduct was unlawful. Third, where the NLRB finds a knowing and willful failure to post a notice, it may use the failure to post as evidence of unlawful motive in an unfair labor practice case. Initially, however, the NLRB has indicated that its focus will be on compliance, assuming that most employers who do not post a notice are simply unaware of the rule. In those circumstances, once the notice is posted, the case will be closed.

NLRB Regional Offices will provide employers with a notice poster at no charge, or the notice may be downloaded from the NLRB’s website. In addition, if 20% or more of an employer’s workers are not proficient in English, a translated version must be posted. Translated versions will also be available from the NLRB.
 

On August 17, 2011, the New York City Council passed an amendment to the New York City Human Rights Law which will impose a higher burden on employers who assert that accommodating an employee’s or prospective employee’s religious observance or practice would constitute an “undue hardship.”

The amendment defines “undue hardship” as “requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” The amendment also lists various factors that will be considered in determining whether the accommodation constitutes an undue economic hardship such as:

(i) the identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer;
(ii) the number of individuals who will need the particular accommodation to a sincerely held religious observance or practice; and
(iii) the degree to which the geographic separateness or administrative or fiscal relationship of the employer’s facilities (for employers with multiple facilities) will make the accommodation more difficult or expensive.

An employee or prospective employee is still required to show that the requested accommodation does not prevent him or her from performing the essential functions of the position.

Once Mayor Bloomberg signs the bill, the law will take effect immediately, impacting New York City employers and non-resident employers who may have employees working in New York City. Employers should review their job descriptions to ensure that the essential functions of the position are accurately described. Employers who have received religious accommodation requests should engage in an interactive process with the employee and use the above factors as parameters for granting or denying a request.
 

OSHA recently released a free application for mobile devices that is intended to enable workers and supervisors to monitor the heat index at their work sites in order to prevent heat-related illnesses. The Secretary of Labor, Hilda Solis commented, “Summer heat presents a serious issue that affects some of the most vulnerable workers in our country, and education is critical to keeping them safe.” The application, which is available in English and Spanish, combines heat index data from the U.S. National Oceanic and Atmospheric Administration with the user’s location to determine necessary protective measures. The application also provides information for supervisors on how to gradually build up the workload for employees and tips on identifying signs and symptoms of heat-related illnesses. The application further permits users to contact OSHA directly. The application is designed for devices using an Android platform. OSHA intends to release versions for BlackBerry and iPhone users shortly.

OSHA’s renewed focus on heat-related illnesses is a good reminder that the law generally requires employers to take various proactive measures to protect employees working in the heat, including, but not limited to, providing plenty of water, scheduling rests breaks in the shade or air-conditioned spaces, planning heavy work early in the day, preparing for medical emergencies, gradually building up work for new employees, and training employees on hazards related to heat illnesses. Information for employers about using the heat index to calculate and address risks posed to workers also is available through OSHA's new Web-based tool "Using the Heat Index: Employer Guidance."  OSHA's other educational and training tools about heat illnesses prevention, available in English and Spanish, can be found here. 
 

Earlier this month OSHA announced that it will restructure the agency’s Whistleblower Protection Program.  The changes come in response to a Government Accounting Office report that was critical of the way OSHA responded to whistleblower complaints (including inconsistent practices at the Regional level and the need for more training of inspectors).  In response, OSHA has revamped the program to include the following changes: (1) a requirement that investigators interview the complainant in all cases; (2) having the program report directly to the Assistant Secretary; (3) several new training initiatives (including a national whistleblower training conference in September which will be attended by all whistleblower investigators; and (4) issuing a new edition of the Whistleblower Investigations Manual that updates current procedures and includes information on the new laws enacted (the manual was last updated in 2003).

The agency has also made a $6.1 million budget request for fiscal year 2012 to add 45 new whistleblower investigators.  The significant backlog of cases in its system is a recurring criticism of OSHA’s program.  David Michaels, the Assistant Secretary for Occupational Safety and Health, announced that the agency has eliminated the backlog of 150+ appeals and that the changes just announced should make the initial complaint intake and case processing more efficient.
 

The issue of whether to compensate an employee for commuting time can be a difficult one where the employee does not have a single standard work location to which he reports. When the employee’s home base is his home, and he performs work at home each day before he gets on the road, is he entitled to be compensated for all time spent commuting between his home and various work sites? The United States Court of Appeals for the Second Circuit recently held no – at least not when the employee is not required to perform the home tasks immediately preceding or following required travel to other work sites.

The case was brought by a former employee of Black & Decker whose responsibilities included merchandising and marketing Black & Decker products at six Home Depot stores which were located between 20 minutes and three hours from his home by car. Black & Decker’s travel policy, adopted pursuant to a USDOL opinion letter, only paid for travel time going to a first store of the day or returning home from the last store of the day in excess of 60 miles (converted in practice to travel in excess of 60 minutes). So travel of 1.5 hours at the end of the day would only be compensated with half an hour of pay.
 

The employee performed a variety of administrative tasks at his home such as sending and answering e-mails and voice mails, reviewing sales reports, organizing materials and making displays and signs. He claimed that he spent 15-30 minutes before he left home and 15-30 minutes after he returned home each day performing these administrative tasks. Black & Decker contended the tasks did not have to be performed at his home or at any particular time of the day. There was no dispute that the employee was compensated for performing the tasks.

The employee argued that he because he performed these tasks immediately prior to and immediately subsequent to traveling to the Home Depot stores, he was entitled to compensation for all time spent traveling under something known as the “continuous work day” rule. This rule defines the workday as the period between the start and completion on the same workday of the employee’s principal activities. Under this rule, once an employee commences principal activities, or activities which are integral and indispensable to principal activities, all time during the same work day is compensable. The employee argued that the continuous work day rule applied because his work at home prior to traveling to the first store of the day was a principal activity, or at least integral and indispensable to a principal activity, so he was entitled to be compensated for all morning travel time, not just that in excess of 60 minutes. He also argued that his end of day activities extended the continuous workday to include all travel time coming home from his last store of the day.

The Second Circuit disagreed, concluding that the continuous workday rule did not apply. Instead, the Court relied on the well-established general principle that home to job site travel is not compensable. The fact that the employee performed administrative tasks at home at his election, just before and just after traveling, could not turn otherwise non-compensable travel time into compensable time by invoking the continuous work day rule. The Court found no evidence that the employee was required to perform the activities either immediately preceding his morning travel or immediately following his afternoon travel, and that he was free to perform them whenever he wanted and to use time for his own personal activities after performing them rather than getting on the road to a store location. As a result, the employee was not permitted to make the choice himself to perform the activities immediately before and after traveling and then invoke the continuous workday rule to increase his travel time compensation.
 

Every employer, regardless of size, will eventually face the need to investigate a workplace misconduct issue.  Whether necessary to resolve a dispute between coworkers or to address unethical or unlawful behavior (e.g. alleged harassment of recently married same-sex couples), a properly conducted workplace investigation is a critical part of doing business.  Of course, most employers expect their HR professionals to properly handle even the most delicate investigations, and more importantly, protect the organization from potential liability resulting from either the misconduct or the investigation itself. As illustrated in a decision from the United States Court of Appeals for the Sixth Circuit upholding a jury verdict of over $1 million, juries are not reluctant to award plaintiffs substantial punitive and compensatory damage awards when employers fail to conduct proper investigations in response to complaints of workplace discrimination. For these reasons, it is imperative that every organization have a process in place to properly investigate workplace issues.

The most effective workplace investigation policies should require prompt investigation of all suspected misconduct. Employers should investigate a claim of wrongdoing even if a formal complaint is not filed. For example, the obligation to investigate may arise from an informal complaint, anonymous tip, information obtained from non-employees, information obtained during exit interviews, or any other means that brings the matter to the employer’s attention. “It wasn’t in writing,” or “she asked me to keep it confidential,” are not acceptable excuses for failing to conduct an investigation.
 

There are exceptions, of course, for example when the accused employee admits to the allegations right away or when the complaint is very minor, but even in these situations it is advisable to conduct a limited investigation to determine the full scope of the misconduct. At a minimum, conducting an investigation will stop the misconduct if it is occurring, send a message to employees that all workplace misconduct will be taken seriously, create a documented record, and put the organization in a much stronger position to defend against subsequent claims.

Next, select the right person to conduct the investigation. Selecting an individual who is experienced and is neither biased nor perceived as biased is essential to maintaining the integrity of the investigation. The investigator should be empowered to decide who to interview, decide what issues to pursue, engage outside resources if necessary, maintain confidentiality where possible, and be expected to make recommendations to management regarding an appropriate response to the complaint.

Developing a strategic investigation plan helps ensure the investigation is comprehensive and thorough, and substantially increases the probability of identifying material facts necessary to determine appropriate action by the employer. Although workplace investigations often take unanticipated turns, a well-documented plan will provide the road map necessary to accomplish the goals of the investigation. Similarly, properly documenting each interview, including obtaining a confirming signature from the complaining employee, is essential to completing a quality investigation. Documents never have bad memories.

Although it is obviously important for an investigation to be done promptly, it is also critical for the investigator to pursue the investigation wherever the facts may lead. Interviewing additional witnesses, reviewing relevant documents, and re-interviewing witnesses to obtain their response to the statements of others should never be avoided for the sake of expediency.

Quality investigations do not reduce the risk of an employer liability unless they have been properly completed. This requires communicating preliminary findings to the target employee to give the employee the opportunity to provide rebuttal information that may undermine the initial determination or require further investigation. Other essential steps include communicating with the complaining employee once conclusions are reached, administering appropriate discipline (if any), preparing a final investigation report, destroying all preliminary drafts (unless a “litigation hold” is required), maintaining the report in a location separate from the complaining employee’s personnel files, ensuring no retaliation is taken against the complaining employee, and disseminating information received during the investigation on a “need to know basis” only. It is also advisable, depending on the seriousness of the potential misconduct and potential employer liabilities, to have a “fresh set of eyes” independently review the investigator’s preliminary findings.