M2D Partner Mike Muskat Featured in Legal Dive Article on Protecting Attorney Privilege While Conducting Pay Audits

Muskat, Mahony & Devine partner Mike Muskat has been featured in a Legal Dive article analyzing the importance of protecting attorney privilege when companies conduct pay audits. The article, “Protecting Privilege When Conducting a Pay Audit,” provides advice for in-house counsel on avoiding pitfalls that could cause an inadvertent waiver of privilege.

Pay audits, which are used as a way for companies to identify and remedy gaps in pay, are often handled by attorneys so that businesses can take advantage of the right to keep information discovered in the audit confidential.

The article outlines several steps in-house counsel can take to prevent the unintended waiver of privilege. They include documenting the purpose of the pay equity study at the beginning of the review and making sure the analysis is being directed by legal counsel for the purpose of providing legal advice to the company.

“If you skip that step, you are at risk that the privilege won’t apply because it will be found that legal counsel is not directing the project and providing legal advice in conjunction with it,” said Mr. Muskat.

Additional tips include:

  • Provide legal advice as opposed to business advice.
  • Create a privilege team and keep communication only within that team.
  • Consider whether there is reason to conduct a separate, non-privileged pay audit.
  • Consider retaining outside counsel to direct the audit.

To read the full article, click here.