No, Stealing Personnel Files Is Not Protected Activity (But the analysis doesn’t end there) 11-21-18

https://www.jdsupra.com/legalnews/no-stealing-personnel-files-is-not-95840/

Bruce’s Summary: Although the decision in this case was not handed down in California, this particular Circuit Court of Appeals message is clear, removal of other employees’ personnel files from the workplace is not a “protected activity” and was a legitimate non-discriminatory reason for the individual’s termination. It appears that the individual employee felt she was being discriminated against and copied several personnel files that were shared with the EEOC in an effort to support her allegations. According to the author, eventually the individual sued her employer and then during discovery had to provide the personnel files she had taken and copied. In response, her employer terminated her for violations of internal policy. The claimant’s case was dismissed.
BUT, as the author indicates, the Circuit Court’s decision appears to leave the door open to further discussion as to those state laws (or a corresponding state agency) that might be in conflict with Title VII claims, especially when the question is one of placing restrictions or limits on the ability of the EEOC to seek the information contained in personnel files. Time will tell.
However, the current message for Human Resource Professional’s is clear, do you have a process for record keeping, do you know who is handling your Personnel Files, do you know who has access to archived personnel files, (sometimes they are comingled with other departmental files off site) do you know who actually has a key or badge to the Human Resources Department, and then ask, who else has access to those files (do your janitorial services have clearances?). As the employer experienced above, who would think a long-time employee would do such a thing. More importantly, how did they have access?
For those who aren’t sure, good time for a HR departmental record retention audit.
“None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

A California Pickle: Should Employers Defend Alleged Harassers? 10-18-2018

https://www.jdsupra.com/legalnews/a-california-pickle-should-employers-35838/

Bruce’s Summary: As with so many other articles relating to today’s work environment, this one is quite timely. The question the author raises is does an employer once presented with a sexual harassment allegation or lawsuit naming an individual employee as a defendant, run from the employee or provide a defense? As with most legal questions in today’s litigious environment, the author states, “it depends”.
Focusing on California, it has a strong public policy (Labor Code section 2802) that California employers must indemnify employees if their conduct falls within the scope of employment. The author further states, “California employers thus, must indemnify employees if their conduct falls within the scope of employment.” Ah, but not so fast, “The duty to indemnify is not, however, a duty to defend.”
The author does a good job of showing how to walk the thin line between a knee jerk reaction and a wait and see reaction when such allegations are raised. Sometimes finding out when conduct by an employee falls within or outside the scope of their employment can be at the end of an investigation, end of litigation or end of an appeal. For HR Professionals this is a great reference article to use when such issues arise within their work environments.
With the mood today becoming more of a “zero tolerance” approach by many Employer’s, HR Professionals must ensure that the “I’s” are dotted and the “T’s” are crossed when such allegations are raised. Investigations become even more critical in ensuring a through and timely process is followed and completed. Although, California’s Labor Code section 2802 has been around since 1937, for those who weren’t aware of its potential impact on employers, it continues to bring a whole new meaning in today’s litigious society. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com