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Opinion

Opinion

By Mark Adams

 

Employers have an obligation to maintain a workplace free from unlawful harassment and discrimination. When it comes to the pillars and strategies for achieving this outcome, many focus upon their efforts and resources on training their management and employees. Others focus on promoting and reinforcing positive behaviors and conduct in support of their values and culture to pull their workforce together, foster greater employee engagement, and thereby collectively root out such inappropriate and unlawful conduct. Most, if not all, enforce existing policies or practices for compliance and employee-relations purposes.

Yet despite the myriad paths to take (whether individually or concurrently), one tool that is critical towards supporting all of them is the need to conduct effective and thorough investigations.

Internal investigations are a powerful tool. Done effectively, they can help mitigate and control the risk that an organization may face when a dispute or complaint surfaces. Is termination warranted? Some other form of discipline? Or no discipline at all? A thorough and objective investigation can provide the foundation and backbone to justify whatever action management chooses to take in response to a situation, especially if challenged by others or by opposing legal counsel (if litigation later ensues).

Investigations can also serve as a deterrent against inappropriate conduct occurring in the workplace in the first place. While some perpetrators will succumb to the temptation of engaging in bad conduct when they are not being supervised or when they feel management will not be able to get to the bottom of it, they may think twice or not do something at all when management has a reputation of taking complaints seriously and conducting investigations thoroughly.

Then there is the engagement benefit that comes with investigations. Employees often feel disengaged if they feel they don’t have a voice in the workplace when their concerns are ignored or are not addressed. Such disengagement can have severe consequences for a company. It can lead to lost productivity and turnover, and when it involves questions of illegal conduct, it can also lead to employees going elsewhere to air their concerns (such as by filing a complaint with a state or federal anti-discrimination agency or going to court).

By contrast, employers who conduct investigations in a timely, thorough, and objective manner can engender trust and credibility among their employees, and with that gained trust, employees are more likely than not to utilize an employer’s internal complaint- and problem-resolution procedures rather than going outside the organization.

Employers who ignore conducting them altogether do so at their peril. In an opinion handed down by the U.S. Court of Appeals for the Second Circuit, the court described the failure to investigate a sexual harassment complaint as follows: “an employer’s investigation of a sexual-harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer” (Malik v. Carrier Corp.).

So, do you have a plan for how internal investigations are to be conducted? Will it be by someone from inside the organization? If so, are they trained on how to conduct workplace investigations? Will you use an outside resource to conduct them on your behalf? Or will you evaluate which path to take on a case-by-case basis? For employers, it is important to have answers to these questions and have either the internal or external resources in place to be able to respond promptly. Failing to do so can lead to delay or inaction altogether, which can create greater risk.

 

Mark Adams, director of Compliance for the Employers Assoc. of the NorthEast, leads EANE’s HR Services Team. This article first appeared on the EANE blog; eane.org

 

Employment

One Year Later

By John S. Gannon, Esq. and Amelia J. Holstrom, Esq.

The #MeToo movement began making national headlines just over a year ago.

Since then, more than 200 prominent individuals have been accused of harassment. From Harvey Weinstein to Matt Lauer to newly appointed Supreme Court Justice Brett Cavanaugh, new allegations of sexual harassment have been appearing in the news almost weekly, and sometimes daily, over the last year.

John S. Gannon, Esq

John S. Gannon, Esq

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

It should not come as any surprise that employers are feeling the impact of the #MeToo movement. The number of sexual-harassment lawsuits filed increased drastically from 2017 to 2018. In October 2018, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal discrimination and harassment laws, released preliminary data for fiscal year 2018 showing that, for the first time since at least 2010, the number of sexual-harassment charges filed with the EEOC increased.

Additionally, the EEOC reported that it had filed 41 lawsuits alleging sexual harassment, more than a 50% increase over the previous year, and that it had collected close to $70 million on behalf of sexual-harassment victims in fiscal year 2018. The number of lawsuits is not the only thing on the rise; juries seem more willing to issue large damage awards to plaintiffs alleging sexual harassment. Just a few months ago, a jury in Massachusetts awarded a plaintiff more than $3 million in damages in a sexual harassment lawsuit.

Best Practices for Employers

Businesses that want to avoid being another #MeToo statistic need to take a hard look at their culture and ask: What are we doing to provide a workplace free from harassment? With allegations of harassment and lawsuits on the rise, now is an important time for employers to revisit best practices and take proactive steps aimed at protecting employees and reducing legal risk.

First, employers must have an anti-harassment policy, which should clearly outline the internal complaint and investigation procedure. State law requires employers of six or more employees to have a written sexual-harassment policy that is distributed at time of hire and annually to all employees. Among other things, the policy must include a notice that sexual harassment is unlawful and that it is unlawful to retaliate against someone who reports sexual harassment or participates in an investigation. 

The policy should also outline where and how employees can bring internal complaints of harassment and what the investigation procedure is. If either of these processes are unclear at your workplace, now is the time to revisit them and develop a complaint process and investigation procedure.

Second, employers should be doing annual sexual-harassment training. Although Massachusetts law only encourages training, implementing effective harassment training into your workplace culture demonstrates that you care about the issue. It also can protect you against a costly lawsuit.

Under the law, if a supervisor harasses a subordinate or knows about harassment but fails to take prompt steps to report, investigate, and stop the conduct, the supervisor has created significant legal risk for the employer. As a result, it is important that supervisors receive periodic training on what constitutes sexual harassment and what to do if they receive a sexual-harassment complaint or observe potential harassment in the workplace. A few hours of training per year could save an employer from a costly lawsuit. Further, annual training for all employees can be beneficial because it highlights what is not acceptable and outlines the serious repercussions, including termination, for harassing behavior.

Preventing Costly Litigation

As noted at the outset, juries are issuing multi-million-dollar awards in harassment cases. At the same time, employment-discrimination cases are also seeing record-setting jury verdicts. Earlier this year, a jury in Massachusetts awarded a plaintiff $28 million in a discrimination and retaliation case. Read that sentence again.

Having solid policies and engaging in regular training can get employers only so far. In order to avoid the risk of a runaway jury, employers may want to consider requiring employees to enter into agreements calling for private arbitration of employment disputes. Commonly referred to as arbitration agreements, these employment agreements require that employee and employer submit all disputes to a neutral arbitrator, as opposed to filing a lawsuit in court and having the case decided by a jury.

The arbitration process is typically less costly and time-consuming than court actions. Plus, the arbitration decision is usually final, as there are only limited opportunities for either side to appeal.

Bottom Line

The #MeToo movement is undoubtedly bringing positive changes to the workplace. Still, businesses need to be proactive and take steps to create a culture free from harassment. This starts with an effective workplace policy against harassment and regular training for employees.

If a culture change is necessary, it has to start at the top. Leaders lead by example, and these folks must be more committed than anyone to creating an environment free from harassing behavior.

John S. Gannon and Amelia J. Holstrom are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected] Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

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