The attorney-client privilege protects confidential communications between an organization and its attorney if those communications were made for the purpose of obtaining or providing legal advice. Organizations rely on this protection when handling legal matters ranging from investigations to everyday employment matters. But there are several ways that the attorney-client privilege can be lost. Below are suggestions for how to effectively communicate with your counsel in a manner that will help preserve the attorney-client privilege.

• Limit distribution. Make sure that any communications seeking legal advice are only sent to your in-house or external counsel and not to any third parties. If you include a third party or forward the email chain to them, you may be deemed to have waived the privilege for that communication and potentially others on the same topic. Do not record or create AI notes of your communications with counsel without their knowledge and take steps to ensure that such records are not forwarded, shared, or stored in a place that is accessible to employees or outsiders.

• The privilege only applies to communications related to legal advice. Do not assume that just because you copy your attorney on a communication it will be deemed privileged. For privilege to apply, the communication, and any attachment to the communication, needs to relate to legal advice. For example, if a manager emails human resources to report misconduct by an employee, the fact that counsel was cc’d does not necessarily mean that the email would be considered privileged.

• Do not copy counsel on non-legal matters. Conversely, if you want to create a business record about an employee’s conduct and want to be able to rely on that document as evidence, you should not cc or bcc your lawyer. Instead, forward a copy to them. If the lawyer is cc’d or bcc’d, and you then try to use that document as evidence, you may be deemed to have waived the privilege with respect to other communications with counsel on the same topic.

• Don’t make your lawyer a witness if you don’t have to. Under the ethical rules, a lawyer may not act as an advocate at a trial in which the lawyer is likely to be a necessary witness, except under very limited circumstances. If you deliberately make your lawyer a witness by cc’ing or bcc’ing them on an important business communication (and note that bcc’s are discoverable), and there is a trial about that matter, you may need to get a new lawyer.

• Seek legal advice on drafts of important business records. Consider affirmatively seeking legal advice with respect to drafts of internal investigations, termination letters, reasonable accommodation paperwork, or other documents that might become evidence in an employment law claim. If you do not seek counsel’s input in the drafting process, and the draft does not on its face involve legal advice, those drafts could come into evidence.

• Avoid the phrase “on advice of counsel.” If you tell an employee or outside party that you are deciding something based “on advice of counsel” or say things like “my lawyer says that what we did is lawful” that may put the advice at issue, and it may be deemed a waiver of the attorney client privilege. Such waiver could potentially apply not only to the communication at issue but to other communications with counsel on that same subject.

• Internal communications about legal matters may not be privileged. Consultation with an attorney about a legal matter does not magically cloak all future communications related to the same subject with the attorney-client privilege. If you reach out to your attorney for advice about an employment or business matter, and then discuss that matter internally thereafter, without involving counsel, the later communications may not be privileged. For the privilege to apply, the later communication would have to be made in confidence and reveal legal advice from, or the intent to request legal advice from, an attorney.

• Be careful when conducting investigations. Because internal investigations are a routine part of human resources management, the application of the attorney client privilege can be tricky. Employers have a legal duty in some circumstances to conduct an investigation. If the investigation is conducted by an attorney and the documents are designated as privileged, you could not use them as evidence of your compliance with that legal duty without waiving the privilege – and if you waive it with respect to the final investigation report, you could be deemed to have waived it with respect to drafts, interview notes, or other sensitive materials. In cases where you do want all aspects of an investigation to be privileged, consider engaging the investigator through your counsel.

For an organization to function properly, it needs to be able to obtain legal advice from its counsel in confidence. By keeping the above tips in mind, you can help prevent the unwanted disclosure of sensitive and confidential communications with counsel.

For more information, please contact:

• Bernard Posner (bposner@hrwlawyers.com / 617-348-4364);
• Samantha Halem (shalem@hrwlawyers.com / 781-235-4878); or
• Catherine Reuben (creuben@hrwlawyers.com / 617-348-4316);
• Any member of the HRW Team.

 

Hazing, which can cause serious harm, including injury, death, and long-term emotional or psychological
trauma, continues to persist on campuses despite state level anti-hazing laws and campus initiatives aimed
at educating students, faculty, and staff about resulting dangers and consequences. On December 23,
2024, the Stop Campus Hazing Act (SCHA) was signed into law bringing significant changes to the newly
renamed Jeanne Clery Campus Safety Act (the “Clery Act”) intended to enhance campus safety and prevent
hazing. These changes include new requirements regarding hazing prevention, data reporting, and
creation of new policy. The following is a high-level summary of what institutions need to know about the
SCHA’s new requirements and corresponding impacts to existing Clery Act compliance.

1. New Definitions

The SCHA adds two definitions to the Clery Act:

(1) The term “hazing,” for purposes of reporting statistics on hazing incidents, means any
intentional, knowing, or reckless act committed by a person (whether individually or in concert with
other persons) against another person or persons regardless of the willingness of such other person
or persons to participate, that—(a) is committed in the course of an initiation into, an affiliation with,
or the maintenance of membership in, a student organization; and (b) causes or creates a risk,
above the reasonable risk encountered in the course of participation in the institution of higher
education or the organization (such as the physical preparation necessary for participation in an
athletic team), of physical or psychological injury.¹

(2) The term “student organization” . . . means an organization at an institution of higher education
(such as a club, society, association, varsity or junior varsity athletic team, club sports team,
fraternity, sorority, band, or student government) in which two or more of the members are students
enrolled at the institution of higher education, whether or not the organization is established or
recognized by the institution.²

2. The Annual Security Report Will Now Include Hazing Policy Statements and Statistics

Beginning January 1, 2025, institutions are required to collect information about hazing incidents to
include in the Annual Security Report (ASR) (the October 1, 2026 ASR). For purposes of ASR compliance,
institutions must apply the SCHA’s definition of hazing (rather than the institution’s policy definition of
hazing, if different) to incidents involving student organizations (both recognized and unrecognized) that
occur on Clery geography (i.e., on-campus, non-campus, and public property).

3. New Policy Obligations Imposed with a June 23, 2025 Compliance Deadline

Clery mandates that institution ASRs contain various policy statements regarding campus safety protections, including: external campus security, internal building security (including in residence halls), contact
information for crime reporting, institution relationships with external law enforcement, legal authority for
powers exercised by campus law enforcement, missing persons investigations, campus emergency preparedness and response policies, timely warnings and emergency notifications, preparation of crime statistics
for inclusion in the ASR, fire safety rules and data concerning fires on campus,³ and sexual misconduct response procedures and grievance policies.

The SCHA adds two new policy disclosure requirements:

(1) Anti-Hazing Policy: Institutions must establish a statement of current policies relating to hazing
as defined by the institution (if different from Clery’s definition). This policy statement must include
the following information: (a) how to report incidents of hazing; (b) the process used to investigate
incidents of hazing; and (c) information about applicable local/state/Tribal laws governing hazing
(as defined by such local, State, and Tribal laws).⁴

(2) Hazing Prevention and Awareness Programs: Institutions must create and maintain a statement of policy regarding prevention and awareness programs related to hazing (as defined by the
institution, if different from Clery’s definition) that includes a description of research-informed campus-wide prevention programs designed to reach students, staff, and faculty. This policy statement
must include primary prevention strategies intended to stop hazing before hazing occurs.⁵

Institutions with existing anti-hazing policies and/or prevention and awareness programs should evaluate
their policies and programs to ensure that they align with the requirements of the SCHA.

Institutions without anti-hazing policies and/or prevention and awareness programs should take steps to
adopt and implement SCHA-compliant policies and programs along with the required policy statements for
inclusion in the ASR.

4. Campus Hazing Transparency Report (CHTR)

Beginning July 1, 2025, institutions must collect hazing-related data, and by December 23, 2025, make
that data available to the public in a transparent manner, not only as part of the ASR but also in standalone
reports on hazing prevention efforts and related statistics that are developed in accordance with the statement of policies referenced above. At least biannually, institutions must update the CHTR.⁶

The CHTR must summarize findings concerning any hazing violations (the institution’s definition of hazing
applies rather than the SCHA definition, if different) and is only applicable to organizations established or
recognized by the institution. For purposes of CHTR compliance, reporting is not limited to “campus” (i.e.,
Clery geography definitions are not applicable to this obligation).

The CHTR must capture the following information:

• Name of student organization (recognized student organizations only);
• A general description of the violation that resulted in a finding of responsibility;
• Whether the violation involved the abuse or illegal use of alcohol or drugs;
• The findings of the institution and any sanctions placed on the student organization by the institution
(if applicable);
• Date on which the incident was alleged to have occurred;
• Date on which the investigation into the incident was initiated;
• Date on which the investigation ended with a finding that a hazing violation occurred; and
• Date on which the institution provided notice to the student organization that the incident resulted in a
hazing violation.

The CHTR may (but is not required to) include the following information:

• Additional information as determined by the institution to be necessary; and
• Additional information that must be reported pursuant to applicable state law.

The CHTR must not include personally identifiable information in accordance with the Family Educational
Rights and Privacy Act.

The CHTR must be published in a prominent location on the institution’s website along with:

• A statement notifying the public of the availability of hazing statistics, including a link to the ASR;
• Information about the institution’s policies related to hazing and applicable local, state, and Tribal laws
on hazing; and
• Information required for the CHTR.

5. SCHA: Compliance Snapshot

(1) Summary of Compliance Deadlines – Mark Your Calendars:

(2) ASR Versus CHTR:

6. Next Steps for Institutions

(1) Data Collection: Collect hazing data regarding incidents reported to CSAs and local police.

(2) Plan Ahead: Develop a road map to determine required next steps to meet the various compliance
obligations and deadlines.

(3) Review and Revise Policies and Protocols:

• Ensure all anti-hazing policies and programs comply with the updated SCHA requirements.
• Establish coordination protocols among appropriate offices and personnel (e.g., Clery
  and compliance, campus policy/public safety, student housing, student conduct/affairs,
  Greek life, student activities, facilities, real estate management, etc.).

(4) Incident Tracking and Classification: Enhance tracking systems (Clery compliance software, reporting templates, spreadsheets, etc.) to record hazing incidents per Clery Act definitions and support accurate reporting of hazing data in the ASR.

(5) CHTR: Prepare and publish a CHTR that meets all statutory requirements:

• Publicly available and accessible on the institution’s website.
• Updated biannually (at minimum).
• Develop a process for gathering and verifying the required information across Student
  Conduct, Greek Life, Athletics, and other relevant offices.
• Coordinate legal review to ensure report contents are compliant and consistent with applicable privacy laws.

(6) Educate and Train:

• Train campus police/public safety and campus security authorities about these new obligations.
• Develop and implement prevention and awareness programs regarding hazing to educate students, staff, and faculty. This could include, for example, the integration of prevention education into new student orientation, Greek life training, athletic team meetings/trainings, and student organization leader training.

(7) Reporting Mechanisms:

• Ensure clear, accessible, and confidential reporting channels for hazing incidents such as
  online reporting forms, anonymous tip lines, campus safety/public safety, student conduct, and Title IX and Clery Coordinators (as appropriate).
• Promote these channels visibly across campus and in digital communications.

(8) Communication and Transparency:

• Regularly communicate institutional expectations and consequences regarding hazing.
• Publicize the CHTR and ASR in compliance with posting and notification requirements.

It remains to be seen what the U.S. Department of Education’s enforcement of the Clery Act will look like
under its new administration. Notwithstanding, institutions should take steps to align with the ongoing
and new requirements of the Clery Act to strengthen compliance. Note that the Department of Education
has increased the civil monetary penalty from $69,733 to $71,545 for each violation of the Clery Act. This
adjustment became effective January 21, 2025 and applies to “civil penalties assessed after January 21,
2025, whose associated violations occurred after November 2, 2015.”

If you have any questions about the impact of the SCHA or need assistance with updating your institution’s
policies and reports, please contact:

• Alicia Ward (award@hrwlawyers.com / 617-348-4357); or
• John Graff (jgraff@hrwlawyers.com / 617-348-4356).

 

^¹   See 20 U.S.C. § 1092(f)(6)(A)(vi). This definition also includes a detailed list of examples that constitute hazing. Id.

²   See 20 U.S.C. § 1092(f)(6)(A)(vii).

^³     Clery also requires certain fire safety statistics and policy disclosures, which may be published either in a standalone fire safety report or consolidated into an institution’s ASR. These fire safety disclosures apply only to institutions with on-campus student housing facilities
and focus exclusively on those facilities.

⁴     See 20 U.S.C. § 1092(f)(1)(K).

^⁵      See 20 U.S.C. § 1092(f)(1)(L).

^⁶      Notwithstanding the December 23, 2025 deadline, institutions are not required to publish a CHTR until a recognized student organization is found to have violated institutional hazing policy. Additionally, the SCHA does not require institutions to update the CHTR for any period in which there are no findings of a hazing violation for such period. See 20 U.S.C. § 1092(f)(9).

 

I. Overview

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that the 2024 EEO-1 Component 1 data collection is now open, and the deadline to file the 2024 EEO-1 Component 1 Report is Tuesday, June 24, 2025. Beyond this date, no additional EEO-1 Component 1 reports will be accepted, and eligible employers will be out of compliance with their mandatory 2024 EEO-1 Component 1 filing obligations. As a reminder, the EEO-1 Report is an annual survey on the job category, race, ethnicity and sex of covered employers’ employees.

A company’s failure to promptly submit its EEO-1 report may result in enforcement action and may affect a company’s eligibility for future federal contracts.

II. Who Must File

The following employers are required to file EEO-1 reports:

1) Private employers with 100 or more employees during an employer-selected pay period.

2) Federal contractors with 50 or more employees and a federal contract, subcontract or purchase order of $50,000 or more.

III. Logistics and Updates for the 2024 Collection Cycle

The EEOC will only accept EEO-1 Component 1 reports submitted and certified through the agency’s EEO-1 Component 1 Online Filing System (OFS). The EEOC does not accept reports submitted via paper or other non-electronic means.

The EEOC has released revised instructional resources, including a new EEO-1 Component 1 Online Filing System User Guide, a new Data File Upload Specification Document, and an updated list of FAQs. Employers are encouraged to review these materials prior to filing.

The EEOC also updated its guidance on job classification and demographic reporting to reflect evolving workforce terminology.

IV. Next Steps for Employers

1) Review the EEOC’s guidance to ensure that all demographic data is updated, accurate, and in alignment with EEO-1 requirements.

2) Plan to submit all data in a timely manner, no later than June 24, 2025.

V. Additional Resources

Eligible employers with inquiries about filing and compliance may refer to the 2024 EEO-1 Component 1 Instruction Booklet.

If you have any questions concerning EEO-1 reports, please feel free to contact:

• Samantha Halem (shalem@hrwlawyers.com / 781-235-4878);

• Alicia Ward (award@hrwlawyers.com / 617-348-4357);

• Sarah Ruter (sruter@hrwlawyers.com / 781-235-4879);

• Any member of the HRW Team.

To sign up for our Client Alerts, click here.

 

The United States Citizenship and Immigration Services (USCIS) has released a new version of the Form I-9, Employment Eligibility Verification (and its corresponding instructions). The new Form I-9 and Instructions are available here.

The updates are as follows:

• Form I-9, Section 1: Renaming the fourth checkbox in Section 1 from “A noncitizen authorized to work” to “An alien authorized to work.”

• Form I-9, List of Acceptable Documents (List B): Revising the description of Driver’s license and ID card by changing the word “gender” to “sex.”

• Instructions for Form I-9: Changing “noncitizen” to “alien” in the Purpose of the Form I-9 and Reverification and Rehire sections and revising language in the General Instructions to be consistent with the above-mentioned change to the Form I-9, Section 1.

The new Form I-9, edition date January 20, 2025, expires May 31, 2027. Although the August 1, 2023 edition of the Form I-9 remains valid until July 31, 2026, employers should use the latest edition as a matter of best practice. It is recommended that employers regularly check for updates to ensure they are using the latest edition.

Employers who continue to use the August 1, 2023 edition of the Form I-9 should be aware that when completing the E-Verify or E-Verify+ process, the employee attestation will automatically update to “An alien authorized to work” even if the employee selected “A noncitizen authorized to work.”

Additional information concerning the January 20, 2025 edition of the Form I-9 can be found on the USCIS website, here.

If you have any questions concerning Form I-9s, please feel free to contact:

• Samantha Halem (shalem@hrwlawyers.com / 781-235-4878);

• Alicia Ward (award@hrwlawyers.com / 617-348-4357);

• Tavish Brown (tbrown@hrwlawyers.com / 617-348-4366); or

• Any member of the HRW Team.

To sign up for our Client Alerts, click here.