Spring 2024 Newsletter
Spring 2024 Newsletter
Welcome to Nearpass & Koegel PLLC’s inaugural quarterly newsletter!
2024 has already proven to be a tremendously active and rewarding time, both within our firm and in the field of investigations. As we celebrate our firm’s one-year anniversary, we are filled with gratitude for our clients and the trust they place in us to handle their challenging matters.
In this newsletter:
Expanded Services
In addition to investigation services, Nearpass & Koegel provides other neutral services to our clients.
We are pleased to announce that Rachel is now accepting mediation work. Rachel recently completed 35 hours of training with the Center for Dispute Settlement.
As a reminder, Nearpass & Koegel also offers interim Title IX coordinator services and other interim engagements with companies and higher education institutions.
Recent Firm Events
Last month, Nearpass & Koegel proudly sponsored the Women Empowering Women Conference, hosted by the Greater Rochester Chamber of Commerce. This sold-out event brought together over 500 community leaders for an incredible and impactful event. For information about next year’s conference, visit the Women’s Council’s website.
In early March, Rachel moderated an Association of Workplace Investigators (AWI) webinar titled What Investigators Need to Know About Labor Law. With close to 200 attendees, the event had lively participation and a dynamic discussion on this important topic.
February saw Kate participating in a panel discussion for the AWI Wisconsin Local Circle, focusing on the utilization of AI tools in workplace investigation interviews. The session garnered wide interest from AWI members; plans are underway to make this important discussion more widely available. Stay tuned!
In November 2023, Rachel contributed as faculty at the AWI Virtual Training Institute for Workplace Investigators, teaching modules on interviewing skills and report writing. Both Rachel and Kate are set to lead AWI Institute sessions in 2024, with Rachel teaching at the May Institute in New Orleans and Kate at the November Virtual Institute (both events are already sold out!).
Kate’s expertise was showcased in October 2023 at the AWI Annual Conference in Scottsdale, Arizona, where she presented Controlling the Narrative: Managing the Rumor Mill in an Investigation. The session was well-received, and Kate was delighted to share her knowledge on this challenging subject.
Last fall, Nearpass & Koegel sponsored the annual Legal Issues in Higher Education Conference at the University of Vermont, which focused on the diverse legal landscape of higher education.
Legal Updates
Title IX Regulations Delayed (again): The Department of Education announced yet another delay of the final Title IX rules. In February, the Department sent the proposed revisions to the regulations to the Office of Information and Regulatory Affairs (OIRA). OIRA has until June 1 to review and send the regulations back to the Department of Education for final review and publication. We are monitoring this closely and will update our clients when the regulations are finalized.
NLRB Sets New Standard: Last summer, the National Labor Relations Board (NLRB) adopted a new approach under which it will evaluate an employer’s workplace rules, including confidentiality rules and instructions issued during a workplace investigation. The new Stericycle standard will consider a workplace rule to be “presumptively unlawful” where the NLRB can show the rule “has a reasonable tendency to chill” protected activities. Employers must then demonstrate the rule advances a “legitimate and substantial business interest that cannot be achieved” with a more narrowly drafted rule. Stericycle Inc., 372 NLRB No. 113 (2023). Employers should proactively review and update internal documents, policies and procedures where necessary and ensure staff is appropriately trained. Stay tuned for an upcoming article from Nearpass & Koegel for a more in-depth discussion of the Stericycle standard.
AI Corner
ChatGPT and its counterparts continue to make headlines in nearly every facet of American life. While AI presents many opportunities to improve workplace functionality and efficiency, it also introduces potential pitfalls. While the law remains undeveloped in this area, Nearpass & Koegel cautions against disclosure of identifying information and/or confidential employee information to an AI tool in any capacity.
When using an AI tool in investigations, an investigator must input relevant information to achieve the desired output, whether the output is a list of potential interview questions or language for a report. De-identifying any witness and/or company information is a best practice so that there are no disclosures made to unregulated third parties (such as ChatGPT).
There is little doubt that there will be future case law on this topic, and the best way to avoid being at the heart of that first lawsuit is to never disclose employee information to an AI tool in the first place.
Best Practice Review:
Recording Interviews
Should you record an investigation interview?
Short answer: YES.
When conducting an investigative interview, Nearpass & Koegel considers it a best practice in New York to audio record the interview (as long as the recording does not conflict with company policies or procedures). Recording allows the investigator to fully focus on the substance of the interview and eliciting important information, rather than attempting to interview and document the witness’s statements simultaneously.
A recording objectively captures the interview, protecting both the investigator and employer from accusations of inaccurately portraying the substance of the interview. A recording transcript can also be used in lieu of a separate written statement from the employee, which typically does not capture all the details verbally revealed in an interview.
The investigator should notify the interviewee that the interview will be recorded and that the purpose of recording is to get an accurate record of the discussion and prevent any misinterpretation after the fact. If the interviewee objects to the recording, the objection should be noted on the recording at the beginning of the interview.
Note: Be cautious and aware whether you are in a one-party consent state (such as New York where only one participant must consent to the recording) or a two-party consent state where all parties to the conversation must consent to the recording. If you are unsure of your state’s rules, seek guidance from legal counsel.
Upcoming Events
On April 25, Kate will be participating in a panel CLE hosted by the Greater Rochester Association for Women Attorneys (GRAWA) and the Women’s Bar Association of the State of New York (WBASNY) titled Workplace Investigations: Best Practices and Ethical Considerations. The session will be both in person and virtual and is open to the public. Stay tuned for registration information.
On April 25 (in Rochester), April 26 (in Albany), and May 1 (in New York City), Kate and Rachel will present at The Bonadio Group’s 10th Annual Compliance Bootcamp. Their presentation Navigating the Maze: Effective Strategies for Handling Compliance Complaints and Investigations will emphasize best practices in investigations.
From May 13-17, Rachel will teach at the sold out 2024 AWI Training Institute for Workplace Investigators in New Orleans. More information about future training institutes can be found here.
If you would like to discuss any topics covered in this newsletter or if you have any needs in investigations, mediation, Title IX services, or training, please contact us. We are here to assist you.
Attorney Advertising
Investigations-Focused Law Firm Opens in Rochester, New York
Nearpass & Koegel
Nearpass & Koegel PLLC, a women-owned law firm focused on workplace and campus investigations, has launched in Rochester, New York. The firm was founded by Kate Nearpass and Rachel Koegel, two attorneys who most recently led the University of Rochester’s civil rights compliance team, which is responsible for investigating allegations of harassment, discrimination, and retaliation at the University, including allegations of student sexual assault and other sexual misconduct. Nearpass and Koegel have each supervised and conducted hundreds of investigations during their careers.
Nearpass & Koegel provides impartial investigations and other neutral services to help employers and educational institutions address allegations of misconduct, including sexual assault, sexual and other forms of harassment, discrimination, bullying, retaliation, and other policy violations.
Nearpass & Koegel is the first firm of its kind in the Rochester area, with an exclusive focus on neutral work. “The model of our firm allows us to bring a unique lens to investigations that is not impacted by advocacy or litigation interests. We are thrilled to fill this gap in the legal market,” said founding partner Kate Nearpass.
In addition to workplace investigations, Nearpass & Koegel will draw on both partners’ experience with Title IX compliance in higher education and will offer Title IX investigation services as well as hearing officer services for Title IX hearings. Title IX is the federal legislation that prohibits sex discrimination in educational institutions and requires a formal grievance procedure for individuals raising concerns of sexual misconduct.
Nearpass & Koegel also provides training services to employers and educational institutions on a wide variety of topics, including Title IX compliance as well as best practices in internal investigations.
“In today’s ever-evolving legal landscape, high quality internal investigations have become increasingly vital. We are proud to be at the forefront of this timely area of law. Our team is well-versed in the latest investigative techniques and best practices, enabling us to provide our clients with impartial, thorough, and prompt investigations. We are committed to helping our clients address workplace and campus misconduct and create a safe and inclusive environment for all individuals," said founding partner Rachel Koegel.
Nearpass & Koegel is able to assist clients both locally and outside of the Rochester, New York area. The firm’s attorneys are licensed in multiple jurisdictions and have the capability to conduct investigations virtually or in person.