Tag Archives: Human resources

Oh No, Not You (Again): Serious Enforcement of Harassment Policies Is Absolutely Necessary

Contributed by Steven Jados, November 22, 2017

During the past several weeks, it seems that every day has featured new allegations of sexual harassment involving celebrities, politicians, and others in positions of power.

These allegations invite a question to employers: Do you want to be in the news for all the wrong reasons? No? Good, because this moment in time should impress upon all businesses the importance of vigilant enforcement of anti-harassment policies.

HandbookThe first step in enforcement is ensuring that anti-harassment policies are properly communicated to all employees—from entry-level to C-Suite.  All employees should be told, in no uncertain terms, on day one of their employment and regularly thereafter, that they have the right not to be sexually harassed at work. The company’s management—all the way to the top of the organization—must also be put on notice that employees have the right not to be sexually harassed at work, and that credible allegations of harassment will carry real consequences for those who engage in such unacceptable behavior.

Employees must also be trained on how to make internal complaints of harassment within the company.  On that point, employees should know that they can contact human resources, or any appropriate member of management with whom the employee is comfortable with, to disclose improper conduct without fear of retaliation.

Training must also extend to human resources and all members of management, so that they know to recognize harassment complaints for what they are—and so the company’s investigation and enforcement procedures can promptly be put into action. Management must take all complaints or possible situations of harassment seriously, and investigate them to their reasonable conclusion.  There can be no off-the-record complaints; companies cannot look the other way because an accused manager was “just kidding” or, even worse, because an individual “gets to do whatever he or she wants.”  In the end, appropriate disciplinary action and re-training must follow when the company’s investigation determines that harassment occurred.

While proper investigation procedures can shield companies from liability in certain circumstances, failures in implementation, training, investigation, and enforcement of anti-harassment policies are more likely to result in legal liability, negative publicity and adverse financial implications.

Attention employers: Do you have questions on how to implement or communicate anti-harassment policies? Are you uncertain how you should respond to employee complaints? Do you need help in training your employees and management on company anti-harassment policies and procedures? Or, like many employers, are you simply hesitant to investigate harassment allegations against high-level managers?

Ultimately, if you are asking these questions, the best approach is to seek the advice of experienced employment counsel so that potential areas of liability can be contained and minimized, or better yet, eliminated as soon as possible.

Protecting Your Workplace Just Got a Little Easier…

Contributed by Julie Proscia

On August 16th, Gov. Quinn signed the Workplace Violence Prevention Act (WVPA or act). The WVPA is effective on January 1, 2014. The legislation applies to employers with five or more employees, and covers the prevention of violence, stalking and harassment. The WVPA allows employers to seek a court order of protection if the business or its employees are threatened by an individual, generally a disgruntled employee.

At least once a week, we counsel and advise employers about the disgruntled employee. It is always a difficult situation; do we keep an abusive employee or let them go and face their wrath? Employers are fearful that if they terminate a disgruntled employee, the individual will return to the business and harm both the people and property associated with the business. Now we work with our clients and local law enforcement agencies to effectuate the smoothest of separations, and try and prevent the individual from entering the property through anti-trespassing measures. We have also successfully fought in the courts for orders of protection. Unfortunately, until this act, there was no cogent statewide legislation for orders of protections that specifically addressed these non-domestic workplace scenarios. This act is meant to resolve this deficiency. As of January 1, 2014, employers who face a credible threat of violence may seek an order of protection to prevent and preclude the individual from entering the workplace and contacting their employee(s).

For an employer to obtain an order of protection under the act, they must show through an affidavit, to the satisfaction of a judge, that there is sufficient evidence that an employee has suffered a threat or there is a credible potential threat that could be faced by the workplace. A credible threat of violence is defined as a statement or course of conduct that does not serve a legitimate purpose and that causes a reasonable person to fear for the person’s safety or for the safety of the person’s immediate family.

This act does not supplant any current means or methods of seeking protection but gives employers both a shield and a sword to try and prevent workplace violence. In an era where employers are constantly subjected to additional legislation that makes it harder to do business, this is legislation that makes it easier. Put this one in the win column.

Employer’s Prompt Investigation and Action Prevents Liability For Retaliation and Co-Worker Harassment Claims

Contributed by Jon Hoag

Once again, the court has reiterated that employers can avoid liability by promptly investigating and remedying claims of harassment.  In Jensen v. Styrolution Am. LLC, Judge Guzman of the Northern District of Illinois dismissed a retaliation and harassment complaint against the employer based on proof that the employer took prompt remedial action when it learned about allegations of harassment.

Jensen claimed that he was harassed by a male co-worker, Hefele.  Jensen reported the incidents to his immediate supervisor, who intervened.  Jensen admitted that the harassment would stop for a while, but he claimed it would eventually continue.  Jensen complained to his immediate supervisor when the harassment began to escalate and the complaint was communicated to upper management and human resources.  Human resources conducted an investigation and determined that both individuals had violated the company’s policies.  After the investigation, the employees were assigned to work different shifts and did not have any further dealings or interactions.  There were no further complaints of harassment. 

The court found that the employer properly intervened and took reasonable measures to put a stop to the harassment.  When the harassment picked back up and escalated, the supervisor reported the matter to upper management.  Most importantly, the employer conducted an investigation and took remedial action.  The court stressed that a prompt investigation is the hallmark of reasonable corrective action.  Furthermore, the employer’s findings through its investigation showed that the employer’s reason for terminating Jensen – violation of company policy – was honest.  As such, Jensen could not establish that he was retaliated against for complaining about harassment.

The courts do not require employers to make wise, accurate and well-considered decisions to avoid liability when making adverse employment decisions (although it doesn’t hurt).  The courts will look to see if the employer conducted a prompt and reasonable investigation to show that the employer’s lawful reason for the adverse action was honest.

While Summer is Fleeting, Lawsuits are Not….Train Seasonal Employees

Contributed by Julie Proscia

Many employers forget to train summer employees on their company’s workplace policies, procedures and safety rules. Unfortunately, just because the employee is “seasonal” does not mean that you are free from liability. Employers are just as liable for the actions of summer employees that occur in the workplace as they are for full-time regular employees. It is not too late to train your summer help!

Summer employees are more apt than a full-time employee to gloss over the employee handbook. While it is important to have policy and rule information in the handbook, it is always good to provide in-person training to new hires, including summer or seasonal help. It is uncomfortable at best to argue to a judge that a sixteen year old employee should have  known, based on the 100-page handbook, who to call when their supervisor got grabby…awkward.

A summer job is a right of passage for young adults. Responsibility is a good thing, however, as with every good thing there are certain perils that emerge. Because a summer job is frequently the first time that a young adult has worked outside of the home, the young adult does not have the years of experience behind him or her to understand what is appropriate behavior in the work place. What is “okay” on a Friday night with friends is not “okay” at the office. As such, train employees on what behavior they should and should not be engaging in, as well as what type of behavior is unacceptable from others. Sexual harassment and discrimination training are pivotal in establishing boundaries of appropriate behavior and the proper channels for inquiring about potentially inappropriate behavior. 

Just as harassment and discrimination training are important for the morale and health of the team, safety training is important for the physical well being of all employees. Frequently employers neglect to train seasonal employees on equipment and safety rules. The oversight is almost never intentional; rather it is a matter of time constraints and/or the belief that the seasonal employee will be there too short of a time to use the equipment. However, a few minutes, much less a few months on the job, is more than enough time for an accident to occur. Train all employees, including your seasonal staff, on the safety rules of the department and make very clear the areas that are dangerous and explain the nature of the danger. Reiterate that all employees have to follow all of the organization’s safety procedures, regardless of how cumbersome they may appear, and that all employees must report any injury or accident immediately.

Time moves quick, one minute it is Memorial Day and the next it will be the Fourth of July – training summer help is the last thing that an employer has time for…well, no, the last thing would be the law suit that emerges from the injury that occurred when seasonal employees are not properly trained. Take the hour and save yourself some time and heartache and expense later.

A Question From a Follower…

One of our blog followers recently submitted a question about whether there have been any recent attempts to repeal or dramatically amend the Pension Protection Act of 2006 (PPA), which instituted the most comprehensive reform of the U.S. pension laws since the Employee Retirement Income Security Act of 1974 (ERISA) was passed.  The PPA affected, and continues to affect, all varieties of retirement plans including defined benefit plans, defined contribution plans, and deferred compensation plans for executive and other highly compensated employees.

There have been no “breaking-news” attempts to repeal or gut the PPA like the ones we are hearing about with respect to the Patient Protection and Affordable Care Act, in fact, there is little news at all regarding the PPA.  That being said, 2012 does mark the end of the phase-in period for the new interest rates to be used when a defined benefit plan participant elects, pursuant to the terms of the plan, for a lump sum payout when the participant quits or retires.

Beginning in 2008, the PPA modified the mortality tables and interest rates that defined benefit plans must use when calculating the minimum value of lump-sum payouts.  The new mortality table, which reflects recent increases in life expectancy, went into affect in 2008.  The estimates are that the change in the mortality table has or will result in increases in the value of lump-sum payouts by 1% to 2%.  Prior to the PPA, defined benefit plans used the prescribed current interest rate on 30-year U.S. Treasury bonds to calculate the current lump-sum value.  The PPA requires that plans now use the corporate bond interest rate to calculate such a value.  The impact of interest rates on lump-sum payouts is inverse—the higher the interest rate, the smaller the lump-sum.  The T-bond interest rate has been historically lower than interest rates on corporate bonds, so, in theory, this change will ultimately result in lower lump-sum payouts. 

While blogging on “the actual impact of the phased-in change in interest rates to be used when calculating the minimum value of a lump-sum payout” six months from now sounds intriguing, I think I’d rather answer another blog follower’s question.  Followers – thanks for following and thanks for submitting specific questions – keep ‘em coming.

Horseplay In The Workforce Ain’t What It Used To Be And It Could End Up Costing You Big Bucks!

Contributed by Heather Bailey

A Louisiana jury was correct when it found that a survey crew instrument man at an engineering firm was sexually harassed by his supervisor’s boss who happened to be a male as well.  Cherry v. Shaw Coastal, Inc., 5th Cir., No. 11-30403, 1/19/12.  The harasser started off by brushing the employee’s hair, then he would ask the employee to take his shirt off and to wear revealing clothing.  The behavior escalated to inappropriate sexual text messages, repeated touching of the body and hair, and an invitation to sleep over and wear his underwear.  There was one occasion where the harasser touched the employee on the buttocks.  During this time, the employee repeatedly told the manager that he was uncomfortable and that the manager should keep his comments to himself.  

The employee’s supervisor knew his boss was acting inappropriately and complained twice to two different managers who were overseeing the project they were all working on together.  Nothing was done and the managers never informed human resources of the complaints.  After the third compliant when the employee finally complained to the same management team, the manager questioned that the harasser’s conduct was probably just “horsing around.”  After yet another complaint, management finally removed the employees from working on the same crew.  However, the harasser was still able to make the employee feel uncomfortable so he escalated his complaint.  Finally, management informed human resources, but not before questioning the conduct was just “horsing around” again.

Human resources conducted an investigation yet concluded the issue was one word against the other and took no further action.  Again, the company took no further action when the employee complained the harasser was then retaliating against him for complaining.  The employee then resigned because the company failed to take any action and he could no longer take the harasser’s treatment.

The court said the jury was right that there was same-sex harassment here based upon the manager’s vulgar sexual text messages which propositioned the employee, an offer to stay at his house and wear his underwear, and the repeated offensive physical touching and caressing which included a single instance on the buttock.  The court said all of this conduct was “severe and pervasive,” which is a test for proving sexual harassment.  

The lesson learned here is that the company was liable due to its failure to take prompt remedial action. It had a policy that required management to report any complaint to human resources, but management didn’t follow that policy here and even suggested that the inappropriate conduct was just horseplay.  When management finally followed the policy, human resources – despite having documented proof and a superior as an eye witness — did nothing. 

Spring Cleaning Tips

  • Update the company’s Anti-Harassment and Discrimination Policies, and if you don’t have one to update, create one immediately!
  • Train all employees on the do’s and don’t’s of sexual harassment and discrimination, including management on what to do when an employee complains or when management sees inappropriate conduct taking place. 
  • Review the company’s complaint and investigation procedures to ensure complaints are taken seriously and investigations are conducted effectively with a focus of remedial action when necessary.

We recommend you contact your employment counsel to ensure your policies and practices are tuned up.