Justice Sotomayor’s Ruling Supports Employee Rights
Justice Sotomayor’s first ruling from the U.S. Supreme Court went in favor of an employee in a retaliation case and company defense lawyers are worried about the ruling’s impact on company privacy.
To summarize briefly, Norman Carpenter told his HR department that the company was hiring undocumented immigrants. He was fired shortly thereafter and he sued claiming that he was fired in retaliation for his complaint about the hiring of undocumented immigrants. During the lawsuit, the company was ordered to disclose it’s internal investigation report regarding the matter. The company tried to appeal the order compelling the disclosure of it’s investigation report on the ground that the report was protected by the attorney client privilege. Justice Sotomayor ruled that the company could not appeal and had to turn over the report and proceed to trial. The case is entitled Mohawk Industries v. Carpenter.
In a Lawyers USA article about the case, defense lawyer Michael E. Lackey, Jr. of Mayer Brown states that “Lawyers start from a place of being very risk averse, and we are very careful of what we do.” He added that “Now attorneys will be very wary of what kind of documentation they are creating when they are doing investigations [of possible job bias], and that is a shame.” Mr. Lacky’s concerns are misplaced. Mohawk was forced to disclose it’s investigation only because it waived the attorney/client privilege by making statements in a related class action suit. Companies can protect the confidentiality of their reports – they just need to follow the basic rules that govern the attorney client privilege.
