Last month The New Yorker published a story detailing years of claimed sexual harassment and misconduct by Hollywood producer Harvey Weinstein. Since then, it seems that every day features new allegations of similarly inappropriate behavior by public figures, from actors, to authors, to public radio executives. It is unclear whether this is a long- or short-term trend. It is, however, an opportune time for employers to review their own policies and procedures in place to prevent and respond to claims of sexual harassment.

Sexual harassment policies should be clear and unambiguous as to what is not appropriate for the workplace. They should prohibit unwelcomed sexual advances, requests for sexual favors, or any other verbal or physical conduct of a sexual nature. Policies should also make it clear that submission to such conduct must not be an implicit or explicit condition of employment, that response to such conduct will not serve as a basis for continued employment, and that such conduct will not be permitted to interfere with an employee’s work. In sum, the goal of any policy should be to clearly prohibit both specific harassment and the creation of a hostile work environment.

An effective policy must go beyond prohibiting demands for sexual favors or inappropriate physical touching at work. Actions such as sexually-oriented “jokes” or “teasing” should not be permitted in the workplace. Offensive flirtations, repeated verbal abuse of a sexual nature, degrading comments about appearance, and the display of sexually suggestive or explicit materials must also be clearly banned. Employers should also clearly state that subtle pressure for sexual activity, physical contact or blocking of movement are also inappropriate.

These prohibitions, however, do not mean employees cannot have friendly interactions. Indeed, we recommend including a caveat that the policy does not consider things like occasional socially acceptable compliments or consensual social relationships as harassment. The stated goal of the policy should be to eliminate unwelcomed, intimidating, hostile, or offensive behavior. It should also be noted that the policy applies to and protects employees of all genders.

As important as a strong anti-sexual harassment policy is, there must also be a complete procedure for enforcing it. This procedure should have at least two reporting mechanisms. The first should be what would be considered the “normal” reporting mechanism, an employee, position or department designated to receive complaints of harassment and investigate. There also needs to be a secondary reporting mechanism for when normal person is either the subject of the complaint or in a position where investigation may be too difficult. For example, if the normal investigator is the head of HR and the accused is her second-in-command, then the secondary reporting mechanism would be best to use. The goal is for an impartial, objective investigation to occur – not one that is just impartial, but also one that is properly perceived as impartial too.

The complaint procedure should also guarantee as much confidentiality as possible. Victims, witnesses, and those who report harassment should be assured their information will be kept as confidential as possible while still conducting a thorough investigation. They should also know that non-frivolous complaints will not result in discipline. So, if they report behavior in a good-faith belief that it violates the sexual harassment policy there will be no negative consequences even if the investigation cannot substantiate the claim. In contrast, complaints made in bad faith, to retaliate or harass, or to otherwise abuse the system should not be tolerated.

Every investigation into a complaint or possible situation of harassment must be thorough, objective, and unbiased. Investigators must seek out and interview witnesses. They should make it clear that neither the complainant nor the accused should have any inappropriate contact with the witnesses during the investigation. Investigators should also seek any documentation, video surveillance, or other tangible evidence of the alleged events available to them. All reasonable steps should be pursued to try to get as clear of a picture as possible as to what truly happened.

Lastly, the policy should clearly define the consequences of such unacceptable behavior. Recommended action for substantiated violations can range from a simple written warning all the way up to and including termination – whatever is necessary to stop the behavior and ensure it is not repeated and the victim (and others) are not at further risk. It should also be made clear that while discipline for violations of the policy may be progressive, the employer reserves the right to implement whatever punishment it deems appropriate, including termination.

Employers know that sexual harassment is a serious issue and should not be tolerated in any workplace. Beyond the civil liability it may bring, it makes a workplace undesirable and saps employee morale. It can hurt a company’s brand, reputation and standing in the business community. This general outline as to how such policies and procedures should work is a start, but smart employers will reach out to counsel to review and update their policies and procedures and make sure they are never the subject of any similar negative headline news articles.

 

 

Earlier this month, a widely-recognized Fortune 50 company reached a $1.7 million agreement with the Equal Employment Opportunity Commission to resolve nearly a decade of litigation over the company’s nation-wide policy of discharging workers who do not return from medical leave after 12 months.

While this settlement still requires approval by a federal judge, the litigation itself (and the size and scope of the settlement, which also includes changes to the company’s policy, notice-posting, record-keeping, reporting, and other requirements) should be instructive for employers dealing with a common issue: what to do with employees who are granted a medical leave but cannot return to duty at the end of a set time period.

Continue Reading Could The EEOC Sue Over Your “Maximum Leave” Policy?

A nationwide restaurant chain is in a “sticky” situation, and not because of the barbeque sauce on its ribs.  Rather, it faces a trial in a lawsuit filed by the U.S. Equal Employment Opportunity Commission, alleging years of pervasive age discrimination in its hiring of hourly, “front of the house” employees.  The EEOC alleges  that the company failed to hire applicants over 40 for public, visible positions such as servers, hosts, and bartenders, and instead instructed managers to hire younger applicants for those positions at its hundreds of locations. Continue Reading Sticky Notes On Applications Create “Sticky” Problem in Hiring

Do you do business with the federal government?  If you do, you (hopefully!) know that keeping up with the rules and regulations of being a federal contractor are no easy task.  But we are here to help!

Lawyers at our firm, including HRLawMatters contributor Jim McCabe, have written an incredibly helpful article to help federal contractor employers comply with recent changes to their obligations. This article was recently published on the DirectEmployers Association website – and you can see it at this link hereContinue Reading Federal Contractors Must Read This!

If you are an HR professional, you surely worry about workplace violence.  Whether it is an “active shooter” at work or just an argument that turns physical between two employees, the concern about workplace violence and the harm it can cause — both to those directly involved and everyone else who works there — is quite real and undoubtedly scary.

I recently read an article from the Business Journal publications that I found useful:  “Preventing Workplace Violence: What to Listen For, Look For, Notice and Do.”  This article discusses issues surrounding workplace violence prevention and offers some “identifying signs and symptoms” that can be a precursor to violence.  Continue Reading Safely Preventing Workplace Violence

Yesterday, the National Labor Relations Board issued yet another decision that makes it easier to unionize workers deemed “joint employees” of a staffing agency and its business customer.  In its July 11, 2016 decision in a case called Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board overturned a 2004 ruling known as Oakwood Care Center that required a business customer and a staffing agency to consent before a union election covering both jointly employed temporary workers and solely employed regular employees of the customer can occur.  Yesterday’s ruling reverses the consent requirement and takes us back to a prior ruling where consent was not required.  Now (as before 2004) a union election by regular and temporary workers together can occur simply where the Board finds that an employer’s workers and staffing agency employees working with it have an adequate “community of interest” to be part of one unit for unionization. Continue Reading NLRB Continues Focus on Unionization of Temp Workers, Joint Employers

Since the Americans with Disabilities Act (ADA) was amended a few years ago to expand on what is considered a “disability,” almost any medical condition of any consequence may now be enough for an employee to be considered “disabled.”  While many past ADA claims were defended by arguing that the employee was not truly disabled, that defense is practically gone now (unless the employee really has no cognizable medical condition). Continue Reading Qualification is Key under the ADA

Employers want all employees to do their work and go home safely each day.  A workplace injury is bad news for everyone.  When OSHA or a similar state safety agency gets involved, it becomes an even bigger problem for employers.  That reality is even more true today as OSHA’s maximum fines have recently increased, and it has added new recordkeeping and reporting requirements that raise further concerns for employers.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s stated role is “to ensure [safe working] conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.” Continue Reading OSHA Changes: Are You Keeping Up?

The U.S. Department of Labor (DOL) announced the final version of their long-awaited overtime exemption rule today, which makes notable changes to the requirements for employees to qualify under the Fair Labor Standards Act’s (FLSA) “white collar” exemption. The most noteworthy change is an increase in the required salary level for exempt employees to $47,476 per year, but there are other important changes as well.

The rule first surfaced nearly a year ago in June 2015 and it has been a concern of all employers since then. The stated goal of the rule is to expand federal overtime regulations so that more than 4 million more workers will likely be entitled to overtime. Continue Reading Changes to the FLSA’s White Collar Exemptions Are Finally Here! Higher Salaries and More Overtime, Here We Come.

Employers with more than 50 employees are usually aware that the Family Medical Leave Act (FMLA) may apply to their business and their workers. That law, which provides for protected leave for employees in certain situations and various amounts (most often up to 12 weeks of leave), can sound simple but is very complex in its details. Continue Reading What is an Overnight Stay for Inpatient Care Under the FMLA?