In the world of investigations, whether it be workplace, campus or Title IX, we often run into situations where two people interpret the same events in wildly different ways.  As human beings, our memories can be subjective, and we are constantly interpreting events through the lens of our own backgrounds and experiences.  In the legal world, everyone is held to the standard of behaving like a “reasonable person.”  Can someone who always makes the best choices and always perceives the world in an accurate way really exist?  The short answer is no.  Everyone perceives the world in a different way
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In a landmark decision, the U.S. Supreme Court expanded protections for whistleblowers under the Sarbanes-Oxley Act (“SOX”).  In February 2024, the Court decided Murray v. UBS Securities, LLC.  It held that a whistleblower does not need to prove that their employer acted with “retaliatory intent” in taking an adverse action against the employee.   For workplace investigators, this decision impacts how we assess the evidence regarding the employer’s motive for the adverse action.  Evidence that previously fell short of demonstrating “retaliatory intent” may now be enough to satisfy the plaintiff’s burden.Sarbanes-Oxley ActIn this case, Research Strategist Trevor Murray sued under the
Continue Reading Landmark U.S. Supreme Court Decision Expands Whistleblower Protections in Murray v. UBS Securities, LLC.

This month’s VM Recommends brings us selections from our Sacramento Business Operations Analyst, Emma Newton. What is one of your favorite things to do in SacramentoWalking to the Midtown Farmers’ Market on a Saturday morning is one of my favorite things to do in Sacramento. The market takes up four blocks of the Lavender District with local vendors, farmers, food trucks and artists alike. This market is year-round, rain or shine, and is a great representation of the Farm-to-Fork Capital. If you’re lucky, you might even run into a member of the Kings grabbing their groceries for the week.
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At VM, we know workplace investigations. It’s what we do, every day. But we are always retained as external attorney investigators. Conducting an independent investigation as an external attorney investigator can be quite different from conducting an investigation as an internal human resources or compliance professional.We regularly train investigation teams on how to conduct effective internal investigations and we have learned a lot about the differences and similarities in how internal teams approach this work. If you have been internal or worked with internal investigators, you know there can be some striking differences. This reality raises an important question. If
Continue Reading Top Five Similarities and Differences Between Internal and External Investigators: Just the Same, but Different (Copy)

This month’s VM Recommends brings us selections from our Los Angeles Managing Partner, Daphne Pierre Bishop. What is a book you would recommend?I recently read Yellowface, a novel by RF Kuang, and I continue to think about weeks after I finished it. Yellowface tells the story of college friends – a White woman and an Asian woman – who become professional writers and their experiences in the publishing industry. It takes a deep look at the complexity of identity, intra- and inter-group dynamics, and the impacts of various privileges and disadvantages – issues that I think about all
Continue Reading VM Recommends – LA Edition

At VM, we know workplace investigations. It’s what we do, every day. But we are always retained as external attorney investigators. Conducting an independent investigation as an external attorney investigator can be quite different from conducting an investigation as an internal human resources or compliance professional.We regularly train investigation teams on how to conduct effective internal investigations and we have learned a lot about the differences and similarities in how internal teams approach this work. If you have been internal or worked with internal investigators, you know there can be some striking differences. This reality raises an important question. If
Continue Reading Top Five Similarities and Differences Between Internal and External Investigators: Just the Same, but Different

This month’s VM Recommends brings us selections from our 2023 Law Clerk, Olivia Totten. What documentary is important to you?I find the documentary “Paris is Burning” to be compelling. It shares the stories of Black, Latino, gay, and transgender individuals who were part of the 1980s LGBTQ+ ball culture of New York City. As an LGBTQ+ individual, this documentary is an important piece of history to me, and I re-watch it during Pride month.What is your favorite place to get coffee in San Diego?I recommend the coffee shop “Balboa Perk.”  It is a charming, locally owned coffee shop in
Continue Reading VM Recommends – San Diego Edition

Do you have confidence in the skills of each professional in your organization who conducts investigations?  Consider this.It is an ordinary Monday.  You receive notice of a complaint of sexual harassment.  Maybe it is by or against a valuable, high-performing executive.  Maybe it is by or against a one-month employee you are just getting to know.  Either way, yours is a fascinating and challenging job.  Your policy says the complaint must be investigated.  But by who?  Should you direct this investigation to an in-house investigator, or go to a third-party investigator?  Your legal spend is high this year, and the
Continue Reading A Letter to All You Large Employers With An Internal Investigative Team:

It can be a refreshing treat when an investigator gets to jump into an investigation where some evidence has already been gathered, and they have at least some idea what the parties are going to say.  The ultimate fruit of the investigation, the findings, are almost always much easier to reach quickly when there are prior statements to rely upon.  The juicy tidbits of information in prior statements can confine the scope of investigation, streamline interview preparation, highlight key timelines and areas of inquiry, and simply put, make the investigator’s job easier.  But what happens when that evidence might have
Continue Reading Fruit Of The Poisonous Supervisor: Considerations For Considering Statements Taken In Violation Of Weingarten

The many iterations of Title IX regulations in recent decades have resulted in a difficult compliance landscape for schools to navigate.  Most recently, the 2020 Title IX regulations mandated hearings for qualifying conduct, and included specific requirements educational institutions must adhere to when conducting those hearings.  While many schools do their best to provide a proper, safe hearing process, there are some common missteps that occur.  As experienced Adjudicators, we encounter these issues frequently and partner with our campus constituents to try to avoid the issues explored below.1.   Notices to PartiesIt is critical that the Notice provided to the parties
Continue Reading Common Missteps Schools Make When It Comes to Hearings

Education leaders can rest a little easier this summer – the Title IX federal regulations slated for a May 2023 release have been delayed until October 2023, per a federal Department of Education (DOE) announcement. Why the delay? An unprecedent 240,000+ comments were submitted regarding the proposed regulations, and the DOE must respond to every last one of them.Practically speaking, this is good news for education institutions. It means there will not be a repeat of summer 2020, when the federal government released new regulations in May to be implemented by August. School administrators and elected education officials who
Continue Reading New Title IX Regulations Pushed to October 2023

This post was originally published on www.maricopabar.org.Workplace investigations are increasingly in the public eye.  Consider the Phoenix Suns, where an investigation sustained claims of race- and gender-based misconduct against the former owner, Robert Sarver, resulting in a one-year suspension and $10 million fine.[1]  Or Uber, which fired 20 employees after an investigator interviewed 200 people about workplace culture.[2]  Outside the public eye, employers are realizing the value in conducting prompt, thorough, and – especially – impartial workplace investigations when complaints arise.  Savvy employers and their counsel rely on unbiased workplace investigations to ensure employees have
Continue Reading Three Reasons Why Impartiality in Workplace Investigations is Critical

Investigators, particularly those who perform investigations in the public sector, often conduct interviews where a witness or respondent will have a union representative present.  Some investigators are intimidated or put off by the presence of a union representative because they presume the representative will be obstructive, disruptive, or adversarial.  While that is sometimes the case, more often than not, the presence of a representative can aid in the gathering of relevant evidence.  Even if a representative is more assertive than others in representing their “client,” there are several ways to help inoculate against disruptive behaviors and opportunities to turn the
Continue Reading Build Bridges, Not Barriers: Five tips for making the most of a union representative’s presence

Sometimes the lines between our personal social media and our workplace becomes blurred.  Statements we make on social media can sometimes impact the workplace.  Many employers have social media policies to regulate not only speech on the job, but also off-duty speech.  Public employers have to avoid infringing on their employees’ First Amendment rights.  But what about public officials with high visibility?  What about our law enforcement personnel who are under ever increasing public scrutiny?  Should they be able to express controversial views on social media?   What limits are reasonable?  Recently, the Ninth Circuit in Hernandez v. City of Phoenix,
Continue Reading Arizona Public Employers: Social Media Regulation and Free Speech – Reasonable or Overreach?

As investigators, we often find ourselves responding to tumultuous situations, but we are not the only ones. Most of the time, a complaint is filed before an investigation begins.  Sometimes complaints are filed in writing, but many times a complaint is first raised verbally, to a trusted individual, such as a supervisor, a human resources staff member, a teacher, a principal or other administrative staff.  How the complaint is addressed in that moment can affect the entire complaint resolution process.  This is especially true when a traumatic event is at the root of the complaint.  What is a traumatic event?A
Continue Reading Responding to Complaints using a Trauma-Informed Approach

I recently came across the following anonymous quote “Learning from your mistakes makes you smart.  Learning from the mistakes of others makes you wise.”  So true.  Nowadays, employers’ mistakes sometimes end up on the proverbial “front page” for all to see.  While embarrassing and often damaging to the organization, we have the opportunity to learn from these public missteps.  One recent example is the information revealed during the NBA’s investigation of Phoenix Suns owner, Robert Sarver.Last year, the Phoenix Suns underwent a massive workplace investigation on the heels of a November 4, 2021 ESPN article entitled, “Allegations of racism and
Continue Reading Phoenix Suns’ Investigation:  What Every Employer Needs to Know