Will There Be Over 90,000 Discrimination Charges Filed In 2017?

The U.S. Equal Employment Opportunity Commission (EEOC) recently released the 2016 statistics for discrimination and harassment cases filed for the year, showing an increase for the second consecutive year. Discrimination charges were filed in 91,503 cases (29% being sex based claims).  The interesting point here is that the agency responded to over 585,000 calls and more than 160,000 inquiries in field offices. So how did the 745,000 complaints only turn onto 91,503 cases? Well, there were most certainly those complaints that did not meet the legal definition of discrimination or harassment. And then there were the ones that were dismissed due to the fact that the employer met the legal requirement of conducting a prompt and impartial investigation, and took appropriate action to ensure the improper behavior ceased. If one of your employees contacted the EEOC, would your company be one of the dismissed complaints or one of the over 90,000 per year that results in a legal claim?

Many employers still do not understand that when a complaint is received, conducting a proper investigation is your first and best defense. Historically over 50% of claims received by the EEOC are dismissed strictly on the basis of the employer having taken appropriate action.   Let’s face it, even if your company did not violate the law, the cost comes in proving that fact. Once the EEOC receives a complaint, if the employer did not investigate the situation properly, the claim progresses toward litigation. And litigation is very costly. Not just in fees, but in company morale, reputation and employee time. This is why you so often hear of companies settling the claims monetarily while insisting that they were not at fault.

In my blog post next week, I will review what happens once the EEOC receives a claim from an employee, and begin examining the process of an employer responding to a claim. We will look at the process when the employer conducted an investigation, and when they did not.

If you have specific points you would like covered or questions you would like answered, please add them in the comment session, and I will do my best to address them.

2016; An Example of Need for Harassment Prevention.

Looking back on 2016, I was saddened by the onslaught of news stories covering lawsuits and settlements related to sexual harassment and discrimination. Of course there were the big suits that received most of the media attention, Fox News, Chipotle Grill, Mc Donald’s Corp., etc.  But it seemed that the small to mid-sized companies were seeing an abundance of claims as well.  In July, USA Today released a report that 1 in 4 women have been subject to sexual harassment in the workplace at least once. And the Huffington Post stated that the number is actually 1 in 3 women, but let’s not forget the men. According to the EEOC, over 20% of the harassment claims filed include male victims. Sadly, just last week, CNN released an article titled, “The year in harassment: 2016 sunk lower than rock bottom”, based primarily on the increase of online harassment and cyber bullying. This is a very troubling trend and a clear sign we need to increase harassment prevention measures.

What I find interesting is the high percentage of employers that I talk to who state that their company has never had any type of complaint or any need to conduct a workplace investigation into the possibility of harassment or discrimination. Although this may be the case for tightly held small companies and family run businesses that have few employees, many of these are companies that have been in business 10 – 30 years, with 100 to 1000 employees. My conclusion, many companies are still burying their collective heads in the sand as to what goes on in their workplace and are avoiding conducting investigations in the hopes that a claim will not arise. Really? No improper jokes, pictures, or comments? No aggressive managers or disgruntled employees causing arguments or making others uncomfortable with the statements they make? No employees feeling overlooked for promotions or pay scales based on their gender, race or religious affiliations? No vendors making comments on how an employee dresses, using homophobic slurs or constantly asking out employees? Some companies are lucky. Most are not.

The majority of the companies I consult with and the HR professionals I talk with have their policies and harassment and discrimination training in place, but one important element is missing. If your company is not conducting an investigation every time they become aware harassment or discrimination may be taking place, they are missing out on an important prevention method. Statistics show that employers who conduct workplace investigations as a standard business process, see a steady reduction in the number of incidents and claims based on the employees knowing that they will be held accountable for their actions. It creates a culture where employees pause before they speak or act to ensure they are not out of line. And with the EEOC Strategic Enforcement Plan for 2017-2021 focusing on preventing systemic harassment, it’s time to get proactive.

If you have questions or concerns regarding conducting workplace investigations, getting executive buy- in, or how to change your process to a standard business function, please feel free to leave a comment or email me directly at Dana@GoInvestiPro.com.

DO POLITICAL ARGUMENTS = HOSTILE WORK ENVIRONMENT?

With the vote happening next week in a what may be the most contentious presidential election in U.S. history, HR and Managers need to closely monitor the temperature to make sure conversation do not elevate to the point of bullying or creating a hostile work environment.  According to an article published by SHRM, “Sixty percent of HR professionals said their employees are more vocal about their political opinions than in elections past—meaning workers are more frequently engaging in political discussions or even arguments.” Although this period is temporary, the long-lasting impact on employee relationships may be long lasting or even permanent.

Consider this:

There are 3 employees in the purchasing department, which are housed right next to the two employees in the Shipping and Receiving department. The S&R employees (we’ll call them Bob and Sheila) are very busy in the morning and afternoon, but not as busy mid-day. Both Bob and Sheila back the same candidate, and much of their downtime is spent sharing campaign rhetoric, talking over their cubicles about how no person in their right mind would vote for the other candidate (whom they refer to “That #$@&*%!”). Although the Buyers have discussed among themselves that this makes them uncomfortable, they don’t want to confront Bob and Sheila as they are concerned the behavior will just escalate.

On the day before the election, the first Buyer arrives at work to find a cartoon sketch with the title of “Let’s keep “That #$@&*%!” out of office.” The drawing is a picture of a divided polling place where opposing parties are directed into a separate area where they step through the door to face a firing squad. When the other Buyers arrive, they agree that this is a bit scary and has gone too far. But instead of addressing Bob and Sheila, they decide as a team to ignore them, leave their work on their desks with notes, and avoid any direct contact until things quiet down.

When the manager arrives, and sees the cartoon, he has to decide what step to take next.

  1. Take down the cartoon and tell Bob and Sheila to knock it off, knowing that after the

election things will probably get back to normal.

  1. Make light of the situation so that everyone knows it is not serious and just an

attempt at election humor.

  1. Get HR involved and talk with everyone effected to determine the impact this has

had on the employees.

Remember, the law states that Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Does this rise to the level of a hostile work environment? Maybe, or maybe not.  The point is that employers do not know the impact these situations will have on employees unless they investigate.

An investigation does not need to be a long drawn out chaotic process. In fact, using investigations as a standard business process to determine what is happening in the workplace and taking action or changing processes and/or policies actually drives engagement. When employees know that everyone is held to a common set of rules and expectations, they feel respected and comfortable coming forward, before problems escalate. This allows for a simpler and more immediate resolution.

If you have any questions, or would like to chime in on how your company is working through this election period, I would love to hear your comments.

3 real calls from EEs looking to file claims

I am often asked, “Are employers really still finding reasons to fire employees in order to avoid taking the steps of conducting an investigation?” The answer is, yes! It’s unfortunate, but it is still happening.  InvestiPro received the following three calls from employees who were looking to file a claim against the company that just terminated them. As you know InvestiPro is an online platform for employer use, but employee calls still come in.

Call #1 – I was just fired after having a problem with my boss. They wouldn’t give me a reason and when I asked to see my personnel file, there was nothing in there. Can you help me?

Call #2 – I need to find someone to help me. I have been in my job for a long time and this new girl told HR that I was doing things that I wasn’t doing. The just called me in and fired me for no reason. I didn’t do nothing.

Call #3 – Can you help me report my employer for firing me? I only worked there for a few weeks and my manager was a jerk. He was always in my face, telling me to get a better attitude.  He even called me stupid. I could tell he was talking about me to other employees. Then I called in sick with a headache and they fired me.

Don’t get me wrong, I am not saying that I am pro-employee, and I completely understand that there are times when termination is warranted. I just know that these situations can often be put to rest, and REDUCE THE POTENTIAL FOR LITIGATION, simply by conducting a prompt and impartial investigation. With over 25 years of employee relations experience, I have seen that positive results can come out of implementing an investigation process as a standard business process used to reduce the chaos and hold every employee accountable at the same level. When employees see that a respectful investigation process will be used every time there is a complaint, two things happen. The first is that employees are much less likely to provide a false claim. And the second is that the investigation becomes a way of doing business, leaving employees feeling respected and valued. This essentially removes the fear and drama out of the process. The company receives a complaint, investigates what happened, takes appropriate action or not depending on the findings, and everyone gets back to work. If you take away only one fact from this blog, make it this:

The EEOC historically dismisses over 50% of harassment and discrimination claims based simply on the employer conducting a prompt and impartial investigation.

Is McDonalds Corp. a co-employer of franchise employees?

Independent franchise owners need to watch for the court decision on this as it could have wide spread implications. As explained in this article published yesterday by SHRM,  15 Employees filed sexual harassment claims in which McDonalds Corp. was named a co-employer. Needless to say, the outcome of this will have a serious impact on the franchiser/franchisee relationship, and how business agreements are set up moving forward. Not just for McDonalds and the restaurant industry, but all franchise relationships. That being said, whether or not the franchiser (McDonalds in this case) is found to be held liable as a co-employer, this does not relive the independent franchisees of their responsibility to conduct a prompt and impartial investigation into these complaints. Investigating complaints is not just the law, it is the right thing to do. Failing to investigate is costly. Taking retaliatory action may entitle the victim to punitive damages, at the discretion of a jury. This is where the high dollar settlements come into play. This is easy to prevent folks. Complaint = Investigation. Every time!

Not sure how to conduct a proper investigation, check out www.investipro.com.

InvestiPro mentioned in Top 5 HR Tech Conference Moments

Not only did Steve Boese, Conference Chairman, vote for InvestiPro as the Next Great HR Technology Company last week at the HR Technology Conference in Chicago, he included us in his Top 5 Moments at the Conference. https://t.co/yIloNDhS2O

Discovering the Next Great HR Technology Company

While HR Tech, and plenty of other shows, have done startup tech company demonstrations and competitions in the past, this year at HR Tech we decided to introduce a new spin on the concept.  Borrowing from the format of the popular TV series “The Voice”, we paired up and coming HR technology companies with their own expert ‘coaches’, (Trish McFarlane, Ben Eubanks, Madeline Laurano, Kyle Lagunas), who not only ‘found’ and nominated these companies for participation in the event, but also collaborated and coached them on their presentations and delivery for the event itself.

 

At the session, ably hosted by Jason Averbook, each of the 8 participating companies, (InvestiPro, ClickBoarding, Chemistry Group, LifeWorks, Clinch, HighGround, RolePoint, and Qwalify), had 5 minutes to talk about their solution, and show it off a little, followed by about 2 minutes to answer a question or two from one of our expert coaches. After 8 fast-paced demonstrations and discussions, the audience got to vote for who they thought would be ‘The Next Great Technology Company’ – a vote won by LifeWorks in what was an extremely tight race.

Top 3 Reasons employers avoid investigations; and why they shouldn’t.

Ask any manager or business owner which two words they hate to hear the most from HR, and you are likely to get a response of “workplace investigation”.  Those words have a bad reputation for leading to things like, litigation, termination and other …tion words that we would all rather avoid. But avoiding the investigation is not the answer. Here are the three top reasons employers avoid investigations, and why they don’t hold weight.

Avoidance #1: If we conduct an investigation, it is just going to create more liability for the company.Continue reading

Decision Maker used in investigation process may protect employers from retaliation.

The number of Harassment related retaliation claims being filed with the EEOC is continuing to increase year after year.  And since retaliation judgments can be awarded punitive damages, these can be very costly claims.  Last week the EEOC released new guidance on the definitions and applications of retaliation in the workplace, and one strong protection step that employers can take jumped out at me right away, so of course I thought I should share it with you.Continue reading

The Top 10 Investigation Challenges: Part 10 – Getting back to work.

Whew….the investigation is over and now we can all get back to work, right? Often it is not that easy. In most companies, employees are well aware of what goes on in the workplace. Even in the largest companies, employees talk about what is happening in their department or building. Pretending that an investigation never happened will cause employees to wonder. And more often than not, the imagination is worse than the truth. Addressing the situation and communicating the expectations for moving forward can help put an end to the distractions that could otherwise go on for weeks. Here are a few tips to help everyone in the company return to work post-investigation.

Within a day or two:

  • Set a meeting or plan to address the situation with all staff within a few days or a week after the conclusion of the investigation.
  • Confirm the fact that there was an investigation, and that appropriate steps have been taken and the matter has been resolved.
  • Inform employees that although you can understand their curiosity and concern, the company will show respect for all parties involved by putting this behind them and not discussing it any further. Convey the expectation that employees will do the same and gossip, negative remarks and discussions of personal information will not be tolerated during work hours.
  • Provide means by which employees can share their work related concerns by meeting with their manager or Human Resources.
  • And close by reminding employees of resources that are available to them if they need to talk this through via the company Employee Assistance Program (EAP) or counseling benefits offered through their health plan or local social services.

Three to four weeks later:

  • Post-investigation is the right time to review the company policy and make any revisions that are needed to promote a zero tolerance workplace and comply with the laws. Managers who were involved in the investigation should be allowed to provide insight, and the final revision should be reviewed by an attorney.
  • Provide all staff training, review the laws, distribute and review the company policy, and have each employee sign an acknowledgement that they attended training and understand their rights and responsibilities. Managers should attend this meeting to show that they are united in the enforcement of the zero tolerance policy.
  • At the end of the meeting, either as one group or after breaking into separate departments, allow for open discussion on how the laws and the policy apply in your workplace. Provide examples of courteous respectful behaviors, and those that are not allowed (being careful not to use examples that are too close to the recent investigation). And ask employees for suggestions on how to promote better behaviors within the workplace.
  • Schedule and conduct Supervisor/Manager unlawful harassment training, even if it was conducted in the recent past, to remind the management team how important this is to the company.

Three months later:

During an investigation employees may take sides, restrict communication, and become uptight and leery of those they work with.  If relationships are left to rebuild on their own, it can impact business for a period of months or more. Employers must take an active role in helping employees to rebuild trust in their co-workers and managers, so they can feel comfortable again and even enjoy their daily work.  It is usually most effective to begin the rebuilding process within three to four months of an investigation, allowing for a cooling off period when raw emotions can heal.

  •  A good first step is to host a company lunch or barbecue. During this time, implement games or activities that promote teamwork, positive reinforcements and laughter. When employees laugh together, they let their guard down.
  • Institute a spot award program to recognize teamwork, kind/respectful behaviors, and providing a helpful hand to others.
  • Spend time, either one-on-one or in groups, talking about growth and learning opportunities in the company to increase engagement.
  • And finally, actively manage employees by using your performance review and progressive discipline processes to recognize and build on good behaviors, and control the wrong behaviors BEFORE they get out of hand.

I hope this information is helpful to you. But remember, if you need to investigate…….GoInvestiPro.com! Simplifying the way employers conduct investigations.