The Best Way to Avoid EEOC Claims

When a letter comes in the mail with a return address of the EEOC, I think we can all agree that it’s not likely to be good news. But there are a few changes that can be done to reduce or avoid EEOC claims all together. The EEOC  harassment task force spent a great deal of time and money to determine that it is all about accountability. Here are the top takeaways:

  1. Accountability must be demonstrated.
  2. An effective anti-harassment system that includes safe reporting, thorough investigation and proportionate corrective actions creates a cycle that reduces harassment.
  3. A trusted system drives earlier reporting for more effective resolution.

Consistent accountability across all levels of an organization is not going to magically fix all of your people-based challenges overnight. But with time, and consistent application of process, here are a few of the improvements you can expect.

Example: An employee feels as though he is spoken to disrespectfully by his manager based on his ethnicity.

Issue                                                       Before accountability             After accountability builds trust

Productivity EE feels that his work will be unfairly critiqued, and he has no hope for promotion. Why work hard or provide innovating ideas when he will likely be subject to humiliation in front of his peers? EE feels comfortable talking with HR and working to improve communications between he and his Manager. He begins to take pride in his  work again and hopes to grow within the company.
Disengagement EE doesn’t want to bring attention to himself or his work as the attention he gets always seems to be negative. So, he does a minimal amount of work, doesn’t take risks, ask questions or try to improve or speed up production. Once the EE feels better in his work environment, he generally wants to show appreciation by showing that he is a loyal employee, works hard and is a good candidate for future promotion.
Absenteeism Stress and depression from a hostile work situation often manifest in physical symptoms and depressed immune system functions that lead to an increase in the number of days calling in sick to work. Knowing that problems can and will be addressed respectfully and result in a positive outcome allows the employee to get up every morning feeling positive about going to work. He wants to be accountable to his peers.
Turnover EE feels that there is no way to fix the disrespect and unfair treatment in his job and the only choice he has is to leave. Along with the employee, skills and product knowledge go out the door. Research shows that employees who feel they are treated fairly and are given growth opportunities are almost 60% more likely to stay and move into the next level of job.
Recruiting EEs who leave their jobs often feel disgraced. This leaves them more likely to share the reason why they could not stay both in person and on social media. Potential employees read these reviews and are deterred from applying. Positive employee reviews generally don’t happen unless employees really enjoy their work, management and the company. High ratings increase the number of applicants received for open positions and make it easier to hire good candidates more quickly.

 

The Harassment Task Force put together a simple one-page Employer Checklist that I suggest every HR professional should go through twice. The first time as the HR resource in your company evaluating your harassment and discrimination complaint and prevention process. And the second time as an employee considering what you would answer if you had a complaint or witnessed unacceptable behavior. Then I challenge you to write down at least three things you can do to change the perception of the accountability process in the eyes of your employees. If you need help, read this post for a few suggestions. Every process has room for at least a little improvement.

Implement a compliant, consistent investigation process with InvestiPro!

Are You Outsourcing or Insourcing Your Investigations?

According to an article in Bloomberg Law, (Article: Surge in Outside Workplace Investigations in #MeToo Milieuir) there has been a surge in the number or workplace investigations being conducted by third-party investigators. Along with the high level, high dollar cases we read about in the news, these are the cases that are easily measurable. The article quotes Amy Oppenheimer, Law Offices of Amy Oppenheimer, as saying that “only about five out of 100 claims rise to a high level of seriousness.” So, what about the other 95%?

Employers are required to investigate all claims. But more than that, they must investigate any time they become aware that harassment, discrimination or bullying are taking place in the workplace. Even if no one has come forward to complain. At an average cost of $8,000 – $20,000 per investigation for outsourcing to an attorney or investigator, and an average of 1 investigation per 50 employees per year, an employer with 1000 employees could spend $200,000 per year on outsourcing their investigations. This sounds like a significant expense, until you consider the cost of a claim if one investigation is not handled properly.

Most HR professionals know the answer to this ongoing problem.  Companies must have a consistent, compliant and thorough investigation process in place for conducting these investigations in-house. And when you ask them, the first response is that they do have a sound process in place. But when digging a bit further, the majority will say that the process is inconsistent as there are several people who conduct the investigations and they all have their own way of doing things. Or, that their process relies heavily on emails, hand-written notes, and questions that are developed on the fly. So we ask, “18-months from now when you get a notice from the EEOC or state employment agency, do you feel you could adequately defend the investigation you conducted?” The answer is generally not a feeling of confidence.

There is a better alternative available that makes it much easier to prove a consistent and complaint investigation process. InvestiPro, as mentioned in Bloomberg Law, is the first automated investigation solution. Schedule a demo and spend a few minutes learning how technology can help you have confidence in your workplace investigations.

5 Reasons We Don’t Need HR Investigation Software

There are several reasons why HR professionals say they don’t need an HR investigation software, but there are a few that I hear time and time again. You may even find yourself using one or more of the reasons below. And that’s understandable with all the new technologies entering the HR marketplace today. As a 25- year HR professional myself, I used to feel the same way. But before you reply on the same old responses, it may be worth looking a bit deeper.

Let’s look at the 5 reasons “why we don’t need HR investigation software” that I hear most often.

  1. We have a team of HR people who conduct our investigations. They all have experience and like to do things their own way. They’d be resistant to being told how to do their investigations.
    • Good HR investigators have developed special skills such as how to draw out information from someone who doesn’t want to talk. Or, how to know when someone is lying. But no matter how strong your investigators are, using different skills and techniques can result in challenges when it comes to proving that your investigation process (or processes) are consistent and unbiased.                                                                                                                                                                                                                          
  2. Every investigation is different and needs to be handled according to the situation. Investigation technology is too rigid to allow us to handle each investigation accordingly.
    • If you have ever had to defend your investigation process in response to a discrimination or harassment claim with the EEOC or a state agency, then you understand the fine line between having an effective, repeatable investigation process and using your process to obtain the information needed across all types of investigations. An automated investigation platform makes it easy to prove that a consistent process is used every time by not leaving any step to chance. For example, core questions are used to begin every interview ensuring an unbiased approach with every witness. While inserting clarifying questions based on responses allows you to dig in to obtain the responses you need to make a fair determination.
  3. Investigations are time consuming enough without complicating the process with pre-determined steps and requirements.
    • No matter how you conduct your investigations, the time required can be very taxing on your staff. And if you’re a solo HR practitioner, it can really impact your schedule. When asked approximately how many hours it takes to conduct an investigation, responses were all over the board. But one thing was very consistent. When asked to provide a time estimate that included preparing for the investigation, converting notes to readable testimony, and writing the final report, the time estimates almost always doubled. An automated process can be very simple to use and reduces redundant data entry, time spent creating notices to investigation participants, and final reports are generated for you, reducing time by up to 40%.
  4. We have an attorney who we consult with on our investigations, so we’re pretty sure that we can defend our determinations and practices.
    • It is always important to have good legal counsel to provide you with guidance on appropriate corrective actions, especially in the case of a termination resulting from an investigation. But your attorney cannot be there every step of the way during the investigation itself. If your attorney participates in conducting the investigation, he or she is not able to represent you should litigation ensue, due to the potential of being called as a material witness to the case. For that reason, automated investigation technology allows for your attorney to participate in an advisory role, while the technology itself provides the built-in compliance measures needed to protect you from exposure during every step of the investigation. Most attorneys appreciate the protections that technology provides for their clients.
  5. I understand the benefits from this type of technology and how it could be useful, but it’s not at the top of our priority list. We just don’t have a need for it yet.
    • The two items that are most often on the top of the HR priority list are talent acquisition and employee performance/engagement. And rightly so. When you are struggling to fill positions as we are in the current economy, productivity slows down making it of utmost importance to fill those open positions. Especially if current staff is not working to their fullest potential. But when you flip the coin and look at these issues from a proactive rather than reactive position, it becomes clear that cultural improvement through civility and communication can improve retention and build employee trust in their managers, peer and leaders. Studies show that employees who feel appreciated and respected, stay longer and work harder. These foundational begin with accountability for all staff, in all positions, throughout the company. And if waiting results in even one claim of harassment, discrimination or retaliation, hesitation can be very costly.

If you are ready to take a new look at how technology can standardize your investigation process, save you time and money, and ensure a consistent, defensible outcome to your investigations, schedule a demo at  https://investipro.com/get-started/.  

For more helpful tips follow the HR Investigator’s Blog.

Is it enough that your company has an open-door policy?

At almost every job I have ever had, I was told during orientation or in the handbook that HR (and in some cases, management) had an open-door policy. And yes, the policies that I wrote as an HR professional contained that verbiage as well. But what does it mean? As an employee, I suppose I thought that meant that I could come to HR or a manager at any time to talk about anything I thought they ought to know. Looking back at whether that made a difference in when or how I brought up issues in the workplace, or whether I chose to bring an issue forward at all, I truly don’t think it did. This caused me to consider what may have made a difference, and how I would change the policy going forward.

Opinions on the “Open-door Policy” have waivered back and forth over the years. For example, Forbes Magazine has published for open-door policies (forbes.com/4-reasons-you-need-an-open-door-policy) and against them (forbes.com/why-successful-leaders-dont-have-an-open-door-policy).  And both sides have good points. Open-door policies can reduce manager performance as some employees see this as enabling them to just come in and shoot the breeze whenever they see fit. However, the policies also allow employees to come forward when they have a suggestion or complaint that really needs to be heard.

When business professors James R. Detert (Samuel Curtis Johnson Graduate School of Management, Cornell University) and Amy Edmonson (Harvard Business School) set out to analyze the reasons behind fear of coming forward with information at work, their study found that having an open-door policy did not reduce the fear of coming forward. Why? Self-preservation. The professors explain:

“In our interviews, the perceived risks of speaking up felt very personal and immediate to employees, whereas the possible future benefit to the organization from sharing their ideas was uncertain. So people often instinctively played it safe by keeping quiet.”

It is time to ask ourselves if our open-door policies are enough to drive the type of change we need to see in our organizations. In my opinion, the answer is no. In our previous blog post (#noretaliation), we provide helpful hints for HR professionals and Managers, to encourage workers to come forward. We need to demonstrate and invite open communication and reiterate our policies that prevent retaliation when employees speak up.

At InvestiPro, we have chosen to move forward with three steps to help employees bring their voices forward.

  1. Our Code of Civility will be prominently posted in the office for all to see. It will define how we will treat each other, speak to each other and show respect to each other, in all levels of the company.
  2. Our open-door policy will be changed to an open-communications policy that will define how we approach each other in both positive and challenging situations, and will include strong statements against retaliation and accountability.
  3. We will provide training to employees on communication skills that will help build confidence in raising issues that drive toward a constructive outcome.

As with everything in business, we don’t always know the impact that changes will have in the long run. But we have to start somewhere, and I am feeling optimistic.

Hey CEO, are you confident in your harassment reporting process? #NoRetaliation

When asked about their current workplace investigation process, most CEOs will respond with, “HR has that under control.” To which I respond, “That’s good. When was the last time you talked with HR about it?” For those who responded that they have had a recent conversation, it generally went something like this:

(CEO) “Hi, I take it you have been hearing about all of the sexual harassment claims in the news.”

(HR) “Yes, I can’t believe that there is a new claim almost daily.”

(CEO) “Are you hearing anything from our employees.”

(HR) “Not really. A little joking around, but that’s it.”

(CEO) Okay, but we’re covered, right? I mean, do we have systems in place to handle this type of thing in case an employee complains?”

(HR) “Sure, but I will let you know if we get a complaint.”

(CEO) “Great. Keep up the good work.”

Has the CEO in this situation done enough to communicate just how important this matter is to the organization?  Not in my opinion, because the conversation doesn’t prompt any action toward driving change. I get it. These conversations are not comfortable and no one wants to bring up a potential problem. But early intervention can mean the difference between quietly and respectfully correcting a problem, and a very public lawsuit.  Here are 5 questions every CEO should be asking HR to begin the conversation and the road to prevention.

  1. What is our current process for handling sexual harassment misconduct?
  2. Is this process fully compliant with state and federal legal requirements?
  3. Are our employees familiar with the process and are they using it?
  4. Are we proving training and encouraging employees to come forward immediately with their concerns?
  5. How much of the HR budget is being put toward Sexual harassment prevention?

And then ask, “What can I do to support HR in preventing sexual harassment in our workplace?”

The common thread in the media news reports is that the victims did not report the incidents when they initially happened due to fear of retaliation. According to the EEOC, “…on average, anywhere from 87% to 94% of individuals did not file a formal complaint. Employees who experience harassment fail to report the behavior or to file a complaint because they anticipate and fear a number of reactions – disbelief of their claim; inaction on their claim; receipt of blame for causing the offending actions; social retaliation (including humiliation and ostracism); and professional retaliation, such as damage to their career and reputation. (EEOC Task Force Study on Harassment)

CEOs, executives, board members, managers and HR professionals, this can’t wait until tomorrow. Start the conversation today. #NoRetaliation

Ready to simplify your workplace investigations? Learn how at GoInvestiPro.com.

It’s time for HR to take a Stand #NoRetaliation.

In this time of daily reports of long term patterns of sexual harassment in the workplace, I have spoken to many HR professionals who feel they are walking a tightrope. On one hand, they are in support of employees bringing forth harassment issues to be dealt with appropriately. And on the other, having several employees bringing forth complaints all at once is not good for the company culture or reputation. Not to mention the amount of time and effort it takes to conduct multiple workplace investigations all at the same time. So, most are remaining silent. They’re not supporting the #MeToo groups, nor are they initiating talks with managers and executives about bringing open discussion out to the workforce. As a professional who worked directly with employee relations and investigations for a couple of decades, it is my opinion that to make a real impact, not just in the media but inside our organizations large and small, it is time for HR to support protections for those who come forward in good faith to disbar their fears of reporting these incidents. #NoRetaliation.

As we all know, until an issue has been investigated, we really do not know what happened or whether a law or even a conduct violation has been committed. Often when conducting an investigation, the doors to frank conversations are opened, and issues can be resolved by just allowing an offended employee to be heard. And sometimes the actions are severe enough to warrant termination. But we can’t investigate until we know there are problems. And we won’t know there are problems until employees feel safe enough to talk about the issues. And employees won’t feel safe until HR takes a stand that any employee bringing up these issues or incidents in good faith will NOT face poor treatment, reduced promotional opportunities or lose their job. #NoRetaliation.

For many years, both women and men who have been subject to harassment on the job, have kept quiet. They have continued to work, in the job where the offense happened or another job. But the impact of the harassment does not go away. It festers. It impacts their daily work life and their ability to engage with their co-workers and managers. And when the employee does decide to come forward, it has historically been by filing a lawsuit. But that is beginning to change. As we have heard in the news, even just this week with the news of the firing of Matt Lauer of the Today show, employees are beginning got feel empowered to come forward, simply asking that the company take the right steps and hold these people accountable for their actions. The victimized employees generally keep the incident to themselves until something triggers them to come forward. HR can be that trigger.  HR needs to be that trigger in order to begin to see change. #NoRetaliation.

As the CEO of a company that provides an online platform for workplace investigations, I spend the majority of my work day talking with HR professionals about Sexual Harassment claims, reports, investigations and prevention methods. I am constantly surprised by the number of HR professionals that state there has never been any form of harassment in their workplace. Or that their company has never had the need to conduct an investigation. Sometimes these are companies with 100 employees and sometimes they are companies with several thousand employees. But recent statistics tell us that approximately 75% percent of women and 20 percent of men have experienced harassment on the job. And most incidents are never reported. Yes, some industries are more likely than others to have a high claim rate. But if you have employees, and you have no conversations with employees regarding potential harassment in the workplace, you are likely missing something. #No Retaliation.

You may be asking, “What can I do that will make a difference?” Join us in the movement for #NoRetaliation by taking the following steps:

Human Resources Professionals: Start spreading the word within your organization that you welcome open discussions about any potential harassment taking place. That employees at any level are encouraged to come forward and make a difference.  Work with your EAP to allow for private counseling or coaching on how to deal with past incidents. Put up posters, initiate a hotline or email reporting outlet, and add brief discussions into all staff meetings for a quick review of conduct expectations. Make clear statements about what harassment behaviors look like. Provide monthly discussion groups that brainstorm ways to prevent incorrect behaviors within the organization and allow for early intervention. And make it well know that you stand for #NoRetaliation.

Managers and Executives: Show in both your speech and actions that you support the company “Zero Tolerance for Harassment” policies and will hold people accountable for their actions. Partner with HR to actively develop a means of open communication that fits within your company culture. Provide opportunities for your direct reports to talk about what is and is not working in the workplace. Take action early when made aware of any misconduct. And make it well know that you stand for #NoRetaliation.

Employee: You must be willing to bring issues to management in order to stop harassing behaviors. This includes observances of others being harassed. You can encourage others to do the same. Remember, if you or another employee is being harassed, chances are that you are not the first or last. It is time take back our workplace and create a better work day for everyone. #No Retaliation.

I appreciate all of the victims out there that have come forward.

I appreciate all of the companies that have and are standing up to protect their workers from harassment.

I appreciate those who have admitted to their past poor conduct, are apologizing and getting help.

And I appreciate you for choosing to now be a part of the solution moving forward by encouraging open communication and reporting of harassment in the workplace with #NoRetaliation!

Sexual Harassment; the silent epidemic.

With as often as you hear of new sexual harassment cases in the news, you may wonder why I refer to Sexual Harassment as the silent epidemic. Unfortunately, the stories that make the news often leave the public feeling as though this only happens in big business and tv land. But the silent side of sexual harassment can, and is, happening throughout all industries, in all size companies across the US. The statistics provided by the Equal Employment Opportunity Commission (EEOC) prove that fact. And it is time for employers to realize that this can be happening right under their noses, if they are not implementing policies and training to prevent it from happening.

On Sunday night, NBC Nightly News ran a story that revealed the true statistics, Continue reading

Ford did their investigation, so what went wrong? Result: $10M Settlement.

When a company is in the news for paying out at large harassment discrimination settlement, the first thought is that they did not conduct an appropriate investigation. But that is not always the case. Last week the EEOC ended an investigation into claims of harassment by employees in two Ford facilities in the Chicago area. (https://www.eeoc.gov/eeoc/newsroom/release/8-15-17.cfm) Based on the findings, Ford agreed to settle the claim for $10.125M in monetary relief to multiple female and African-American employees who had claimed sexual and racial harassment. Ford chose to voluntarily resolve this issue with the EEOC, without admission of liability, to avoid an extended dispute.

A spokesperson for Ford provided a statement that, “Ford does not tolerate harassment or discrimination of any kind; we are fully committed to a zero-tolerance, harassment-free work environment at all facilities and to ensuring that Ford’s work environment is consistent with our policies in that regard. Ford conducted a thorough investigation and took appropriate action, including disciplinary action up to and including dismissal for individuals who violated the company’s anti-harassment policy.” As such, it appears that they met the legal requirements. So that may have you wondering what went wrong.

It is simply not enough to conduct an investigation once an employee or group of employees comes to HR and files an official complaint. A company must be able to prove that their managers are trained regularly on what behaviors to look and listen for, in order to stop the behaviors before they become systemic or egregious. And take prompt action to investigate immediately at the first sign of a problem. It is equally important to ensure appropriate follow up post investigation to ensure the improper behaviors have stopped and no retaliation is taking place.

In the Ford Motors case, there was reasonable evidence that employees and managers were aware of the behaviors which were claimed to meet the definition of harassment, and that they did not address the issue in a timely manner. Their excuse was that no official complaint was made, even though there was open discussion by employees in the workplace, so no investigation was required. This resulted in the improper conduct continuing, and affecting more employees, until an actual complaint was filed. By the time a formal investigation was conducted, the EEOC found that the company had retaliated against employees who complained about the harassment or discrimination.

In addition to the $10 million to be distributed among the claimants, Ford will be under the scrutiny of the EEOC for a period of five years and will be required to report any employee complaints of harassment and/or related discrimination. They must also provide documentation that they are continuing to disseminate their anti-harassment and anti-discrimination policies and procedures to employees and new hires. And provide proof that they are constantly monitoring their workforce for issues of alleged sexual or racial harassment and related discrimination, to include monitoring by managers.

To prevent this from happening to your company, take the following steps:

 Institute a walking management policy. This type of policy requires all supervisory employees to spend a required amount of time each day observing and interacting with their workforce, and noting conversations and behaviors that may signal problems.

 Train supervisory, HR and executive employees on what signs to watch for. For example, the absence of conversation when managers walk in the room, changes in absentee patterns and physical rigidity or avoidance when interaction with a specific employee or employees are required.

 When it is noticed that an employee is acting differently, start a conversation. Even if it only includes small talk to begin with, it will increase the comfort level of the employee in coming forward with a complaint.

 Prove that the company/HR open door policy is effective by making it a priority to stop what you are doing to allow employees to come in and talk. It can be difficult for an employee to come forward, and if they are shut down on the first attempt they will generally not try again. Then follow up on the information you receive, even if there is no formal action to be taken.
For more tips and guidance on Investigations, sign up for the HR Investigator’s Blog and the Workplace Investigations Quarterly Newsletter at www.investipro.com.

5 Common Misnomers Re: Employer Retaliation

We all know that the laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC) make it illegal to fire, demote, harass, or otherwise retaliate against either job applicants or employees based upon the individual doing any of the following:

  • filing a charge of discrimination,
  • complaining to their employer about discrimination on the job, or
  • participating in an employment discrimination proceeding, such as an investigation or a lawsuit.

In addition, most state anti-retaliation laws provide remedies for any discrimination or “adverse employment action.” But there is still a lot of misunderstanding about the extent of the definition of retaliation. As a rule of thumb, if the action could look like retaliation from the outside, stop and think through the entire situation before taking action. Otherwise, you might find yourself having to defend your actions.

The following are the 5 most common misunderstandings to watch out for:

  1. It’s not retaliation if the employee quits.

It is not uncommon for an individual to resign after an uncomfortable conflict or investigation. In some cases, this result is for the better for both the individual and the company. However, employers and managers need to ensure that they did not deviate from normal practices in order to urge the employee to resign. When courts conclude that the employer was trying to get the worker to quit, or made working conditions intolerable, then they declare a “constructive discharge,” and allow the victim full remedies after quitting. Protection: Establish a process of getting back to work after a conflict or investigation that ensures the affected employee is treated fairly and appropriately.  

  1. We’re going in to slow season, so they can’t prove retaliation if we reduce her hours.

We hear of this often, especially in seasonal industries where a reduction in hours is common at certain times during the year. However, this does not automatically provide protection for the employer. For example, an employee complains that her supervisor is making lewd gestures at her and she is fearful about walking to her car at the end of her shift. An investigation results in a reprimand to the Supervisor. The Supervisor is a high performer and the company decides not to terminate. At the end of the busy season, the Supervisor is asked to provide a list of those employees who he suggests should have their hours reduced or be laid off, and the complainant is at the top of the list. The Supervisor says she is a bit slow and not friendly to guests. On the surface this seems like a legitimate reason to reduce hours. But when customer surveys are reviewed, she consistently has high scores. Yes, this is likely retaliation. Protection:  Review recent actions with any employees that are subject to adverse actions, even when it is a regular occurrence such as seasonal layoffs, to ensure the basis for the action is sound.

  1. As long as I don’t tell HR about the complaint, I can just move the employee to another department and the problem is solved.

At company A, employees submit their time-off requests to their department manager who generally approves the time as first come first served, but also considers the reason for the time off request. Jose has requested time off on several occasions with the reason of attending family matters such as a church services or funerals. After a couple of his requests being denied, Jose complained to his manager that he and a couple of other Hispanic employees are frustrated that their time-off requests seem to be denied more often the other non-Hispanic employees. The manager comments that Hispanics have so much family that they can’t expect to get all of their requests approved and maybe they should stop having kids. Two weeks later, a new employee with a specific skill set is moved into their department, and the Manager sees this a great opportunity to move Jose out of the department into a position that is on a less desirable shift. This is not an easy answer. It’s retaliation. Protection: HR should have a policy in place to talk with each employee that is being moved to ensure they understand why is it a company decision. Generally, if the employee believes that it is due to other reasons, such as retaliation, they will bring it up at this time. 

  1. The victim is protected, but the complainant is a gossip who always stirs up drama, so we can terminate her without it being retaliation.

We expect and require employees to participate in a workplace investigation when they have information that could be useful in determining the outcome of the case.  Often, the organization would not be aware of problems in the workplace without employees coming forward. However, most of us have dealt with the employee who feels it is always her job to report everything…..personal matters, gossip, what the rumor mill says, you know the type. But a complaint is a complaint, and the complainant has protection rights the same as anyone involved in the incident. Often supervisors and managers are not aware of these rights and by changing the way they act toward this employee, they could be guilty of retaliation. Protection: Train all supervisors, managers, and executives about the potential liability from retaliation. And remind everyone involved in a complaint or investigation of their rights and responsibilities every time. 

  1. An employee who has complained can be terminated for violating company policy as long as it is unrelated to the topic of the complaint.

Although employees cannot be terminated for participating in protected activity, this only applies as long as their behavior is lawful and does not violate the company code of the conduct. That being said, employers must look at the severity of the action, and the reason for the action, in order to determine if the action could be construed as retaliation. For example, Sherry has a physical confrontation with Ally. After the incident, Sherry notifies HR and an investigation ensues. Ally is terminated for hitting Sherry, and although the company feels Sherry may have provoked the incident, there is no proof and Sherry is not disciplined. The next day, Sherry’s manager finds that she has been using her company email for personal business in violation of company policy. This is reported to HR and Sherry is terminated. Sherry report this matter to the EEOC and claims that others use their company email often, including her manager, and are not reprimanded. In addition, Sherry claims that the personal email use was to set up a security service to walk her to her car after work as she was frightened that Ally might return to do her harm. The outcome, Sherry got her job back with back pay and penalties. Protection: Before using violation of policy as a reason for terminating an employee, ensure that the policy is consistently upheld and the penalty is appropriate.

Sign up for the HR Investigator’s Blog to stay on top of the laws and best practices and ensure liability protection. And when it is time to investigate, www.GoinvestiPro.com – Simplifying the way employers conduct investigations.