Investigations in Hollywood: It=E2=80=99s the Same, But= Different

by Michael A. Robbins and M= atthias H. Wagener

From the perspective of a workplace inv= estigator, the entertainment industry is unique. (It is unique for other re= asons as well.) This article explores the differences in conducting investi= gations in the entertainment industry and provides practical guidance for b= oth the investigators conducting them and the companies engaging those inve= stigators. This guidance also extends to similar issues that may arise in o= ther industries.

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1= . Employment Relationship and Access to Witnesses

In most industries, the parties and the bulk of the witnesse= s are employed by the same employer. This is convenient for workplace inves= tigators because it usually allows relatively easy access to witnesses (at = least those who are current employees). Similarly, sometimes there is a sin= gle employer in entertainment investi- gations, such as when a single motio= n picture studio produces a movie, hires all the actors and staff on the pr= oduction, and then distributes the movie as well. But the question =E2=80= =9Cwho is the witness=E2=80=99 employer?=E2=80=9D in entertainment investig= ations is often not that simple, and this can create challenges regarding a= ccess to witnesses.

For example, sometimes a studio will contract with a product= ion company to produce a film, and the production company will sim- ply ren= t a sound stage for filming. In some of those situations, the rental agreem= ent only grants use of the four walls of the sound- stage, so the productio= n company has to hire all production per- sonnel. Other times, while the = =E2=80=9Cabove-the-line=E2=80=9D employees (actors, directors, writers, and= producers) may be employed by the produc- tion company, the =E2=80=9Cbelow= -the-line=E2=80=9D employees (such as camera operators, electricians, grips= , art directors, costume designers, hair stylists, post-production ed= itors, set decorators, sound engineers, drivers, and carpenters) may be emp= loyed by the studio that owns the soundstage.

Additionally, while there are many well-established production compani= es, it is fairly common for a production company to exist only for a specif= ic project (e.g., for a particular TV or film production). After the projec= t is over, the production company disbands. To further complicate matters, = a project that is shot in multiple locales may have to utilize different be= low-the-line-employees in each locale, who may work for different productio= n companies. Some production staff also might be needed for only a single d= ay to shoot a particular scene.

To read the full article, click here<= /strong>

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Reprinted with permission of Association of Workplace

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To Require Confi= dentiality or Not to Require Confidentiality: That is the Question <= /strong>

(or, Whether =E2= =80=98tis Nobler to Follow the Whims of the NLRB or

the Requirements= of the EEOC)

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Michael Robbins,= EXTTI Incorporated

A conflict between the approaches of the Equ= al Employment Opportunity Commission (EEOC) and the National Labor Relation= s Board (NLRB) regarding the propriety of confidentiality admonitions has p= ut workplace investigators into an untenable situation.

Maintaining confidentiality in workplace inv= estigations (at least to the extent possible) has long been a hallmark of p= roper investigation procedures. For example, in Roby v. CWI, Inc. d/b/= a Camping World, Inc., 579 F.3d 779 (7th Cir. 2009), the US Court of Appeal= s found an employer=E2=80=99s workplace investigation =E2=80=9Creasonable= =E2=80=9D in part, because =E2=80=9Cit performed an investigation, instruct= ed interviewees that the information was confidential, [and] fired [an empl= oyee] when he breached confidentiality.=E2=80=9D

Consistent with this view of confidentiality= , the EEOC in its 1999 Enforcement Guidance: Vicarious Employer L= iability for Unlawful Harassment by Supervisors discussed the importan= ce of confidentiality in workplace investigations. On April 29, = 2024, the EEOC issued a revised Guidance (the Enforcement Guidance on = Harassment in the Workplace) which again stressed the importance of confide= ntiality in workplace investigations.

Many state courts and administrative agencie= s followed this approach. For example, an early California case, = Silva v. Lucky Food Stores, Inc., 65 Cal. App. 4th 256 (1998) discussed the= propriety of the company=E2=80=99s investigation including that the invest= igator =E2=80=9Cmaintained confidentiality=E2=80=9D in the investigation.

And in 2017, the California Civil Rights Dep= artment (formerly the Department of Fair Employment and Housing) issued its= Harassment Prevention Guide. Here too, the confidentiality of workpla= ce investigations was delineated.

However, the view of the NLRB is entirely di= fferent.

After years of going back and forth on confi= dentiality requirements in workplace investigations, the NLRB=E2=80=99s lat= est pronouncement came out on August 2, 2023. In Stericycle, Inc. and = Teamsters Local 628, 372 NLRB No. 113 (2023), the NLRB determined that it w= ould not consider investigative confidentiality instructions as categorical= ly lawful. Instead, it would separately scrutinize such instructions on the= ir own merits. The NLRB=E2=80=99s concern related to employee rights to dis= cuss terms and conditions of employment.

In other words, the NLRB would not consider = confidentiality instructions given during a workplace investigation (even i= f only for a limited duration, such as until the end of the investigation) = to be presumptively lawful. Unfortunately, the NLRB did this without provid= ing any real guidance as to if, and when, confidentiality admonishments wou= ld be acceptable.

As a result, employers are left with a diffi= cult choice: either to (1) follow the EEOC Guidance and case law, provide c= onfidentiality admonishments, and (potentially) violate the National Labor = Relations Act; or (2) follow the NLRB=E2=80=99s views, not give confidentia= lity admonishments, and (potentially) violate federal and state discriminat= ion laws.

Hopefully, some guidance about this issue (p= articularly from the NLRB) will be provided in the future. In the mean= time, investigators should discuss with their clients and their client=E2= =80=99s counsel the risks and benefits of giving confidentiality admonishme= nts.

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Investigations in Hollywood =E2=80=93 There=E2=80=99s N= o Business Like Show Business

by Matthias H. Wagener and = Michael A. Robbins.

To read the full article, click here

Published in The Daily = Journal (January 19, 2024)

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