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.

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Can’t We Have Consistency, Compliance AND Compassion?

An article posted yesterday in the SHRM HR Daily Newsletter, took a stand that in HR matters,  “Consistency Might Not Be Worth the Cost.” Although I understand that no two situations are exactly the same, and careful consideration of all the factors should drive reasonable outcomes, taking out the need for consistency seems a bit like throwing the baby out with the bathwater.

For literally decades, employment attorneys have been driving into the heads of HR professionals that consistent compliance is everything. Why? Because defending a discrimination, harassment or retaliation claim is extremely difficult when there is no fair and consistent process in place. How can you prove that treatment is unbiased? And liability protection is a big part of the HR function. But I agree, it is not everything.

The dangers of having a culture where it’s okay to decide on an individual basis what is acceptable or allowed and what is not, are more about the impact on culture than about liability. HR professionals and managers are human. And quite frankly, the concern is about leaving the door open to favoritism and unconscious biased based decisions.

The good news is, in this case, you can have it all! You can implement a consistent compliant process that uses organizational beliefs, core values and standards as measurables to determine outcomes. It’s about implementing a consistent, transparent process that is the right fit for your culture and can clearly define and document why and how decisions are made. It doesn’t have to mean the same decision every time. But it does have to mean using the same process to come to the right decision every time, and documenting how that is done.

The benefits of using a consistent, complaint and compassionate process

A consistent, compliant process for handling and/or investigating a situation or incident allows employees to see that:

  • the organization cares about how all people are treated in the workplace.
  • A predictable and transparent process means that employees will be treated fairly and with respect, no matter what the outcome.
  • their voices matter and there are means to begin conversations on things that are not working before they become big issues.

Once employees understand and trust the consistent processes, they will use them earlier and more frequently to resolve issues resulting in:

  • quicker and more respectful resolution to problems large and small.
  • increase in team work efficiencies and enjoyment.
  • peer to peer resolution through more open communication.
  • reduction in fear of bringing issues to the forefront.

Let’s face it, employees who feel they are treated fairly in opportunities, valued in their contribution, and respected in communication and treatment thrive in the work environment.  It is okay to be creative, open to new ideas and practices, but we don’t need to lose consistency in order to do it.

The HR Impact of Gender Quotas on the Board of Directors

Whichever side of the line you stand on, everyone seems to agree that the new California Law requiring at least one board seat be filled by a female for publicly traded companies leaves a lot of room for debate and concern. In fact, Governor Jerry Brown wrote in his signing statement for SB 826, “I don’t minimize the potential flaws that indeed may prove fatal to its ultimate implementation.”  And, as is often the case, it is likely that other states will follow. Although California is the first to have binding regulations, Pennsylvania, Massachusetts, Illinois and Colorado, and various municipal governments, including the city councils of both Philadelphia and New York, have already passed nonbinding resolutions aimed at increasing female representation on boards.

As with many new business-related laws that take effect, HR should take preemptive steps to determine the impact this may have on their organization. The California Chamber of Commerce has argued that the new policy, “violates constitutional prohibitions against discrimination”, and “prioritizes gender over other aspects of diversity such as race or ethnicity.” When these statements are made publicly, discrimination claims tend to rise.

In light of the potential stir that may arise from the search for a female to add to a board that is already in place, the possible unseating of a current Director, or the placement of a so-called “token female” on the board,  HR may want to proactively consider the following measures as a way to step up to the table and provide added value in the process.

Provide a summary of the potential impact the search for a female Board placement could have on the company. Suggested items to be covered:

  • Reminder that placement without prior communication could create an impression that the Board is simply filling a mandated requirement with the easiest or safest option.
  • Communications early on as to what the Board is searching for including qualifications, experience, strategic vision and leadership capabilities can clarify the company goals for the position and prevent the appearance of bias.
  • Positive communication within the company during the process can create excitement as the company moves toward increased diversity, and the impact that will ultimately have on the company.
  • Clarification on who will own the placement process will prevent duplicated efforts.

Provide a proposal of how HR could assist with creating a positive outlook, such as:

  • Providing staff communications on the search, and how the company is excited to embrace this new opportunity for balance in leadership.
  • Assist with initial search efforts and screening to allow the process to move forward in a timely manner.
  • Suggest that HR could provide guidance to the Board on how to document the process and decision as protective measures against discriminatory claims after the fact.

In the long run, a more diverse and balanced Board of Directors will likely have a positive impact on business performance and company culture. Taking the initiative to shine a positive light from the start can make the process better for everyone involved.

4 Steps for Communicating the Importance of Liability Protection, by Corie Mallen

In today’s society, it seems like an obvious idea that every company has an effective process in place to protect their employees and themselves from liability associated with workplace incidents. However, sometimes the costs of implementing such processes can weigh heavily on the decision to move forward with a new product or service. Here are some tips on how to sell your decision makers on the necessity of having a secure and consistent process in place to be aware of and investigate workplace incidents.

  1. Think about what outcome you want and how what you are proposing can make your workplace better for both employees and management. 

Workplace incidents can cost companies hundreds of thousands of dollars in numerous ways whether it be settlements, lost productivity or losing good employees because there is not enough trust in the company. There are new programs and systems that utilize technology to make investigations more efficient and consistent and while the cost of these programs may not already be a line item in your budget, they should be weighed against having to pay a large settlement, the cost of back filling positions of good employees who decide to leave and how much time will be saved  with an automated  process.

  1. When building your proposal, realize who your audience is and what benefits this proposed endeavor will provide for them as well as the company as a whole. Sometimes proposals are more about educating your audience. When you’re presenting to someone who has possibly never conducted an investigation, what would you like them to leave having learned? How can you speak to them, so they will understand your viewpoint? It all goes in to knowing your audience and your own goals. For example, if you’re trying to sell them on a product that streamlines investigations and the Chief Financial Officer is your roadblock, try to include statistics on the money saved by having such a product in hourly wages through automated efficiencies or simply a comparison of a past settlement to the subscription cost.
  2. Test out your proposal.

Before heading in to sell to the decision makers, try and catch one or two of them to test your proposal and adjust where necessary. Testing can give you valuable feedback on what to expect before going into a presentation. You don’t have to run through your entire proposal but if you can catch one or two people for a few minutes and give them a couple of points you feel are important to your case, they may be able to give you feedback on certain language you may want to use, or their body language can yield whether your presentation held their interest. This may also allow them to think through the proposal ahead of time so you will have at last one or two people on your side going into your presentation.

  1. Stay calm, control your presentation and utilize opportunities for further discussion.

It’s important to stay calm. If you believe in what you’re trying to sell to management, it will come across as such. You want to make sure you’re prepared with all obvious answers to questions and make sure you control the time and stay on track during your presentation. If a question is asked and you don’t have an answer, don’t panic. Just let them know you will get back to them with the information in a timely manner. That will open the door for further communication on the subject and allow you to keep the idea fresh in their minds.

If you would like a proposal template to help you prepare to present your project for budget approval, email Corie@goinvestiPro.com.

To learn more about new tools that are available to help calm the fear and chaos in workplace investigations, and make you the hero by improving your company culture while increasing liability protections, go to GoInvestiPro.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.

Your Employee Called the EEOC. Now what?

Any employee who feels he/she has been discriminated against or harassed can file a complaint against her employer with the Federal Equal Employment Opportunity Commission (EEOC) or State Fair Employment Office.  Whether or not the complaint has merit, the employer must then spend time, effort, and often money to defend their position. Knowing what steps to take can help an employer show cooperation, while positioning themselves for defense if needed.

Once the EEOC receives a complaint, the employer will be notified by letter within 10 days. The letter does not imply findings against the employer. Rather, it is the first step the EEOC will use to determine whether there is reasonable cause to believe a violation has occurred. The letter will request a “Statement of Position” from the employer. This document is where the employer tells their side of the story. However, the information provided may be used for or against you. Therefore, there are three things to consider before submitting your position statement:

  1. If you have an attorney, it may be wise to notify him or her of the complaint and ask for a review of the position statement prior to sending it to the EEOC.
  2. If you have an Employer Professional Liability policy (EPL), chances are it requires you to contact the carrier prior to submitting the position statement.
  3. You must report only the facts. These facts will need to be verifiable, and opinion is not advised.

If you do not have or choose not to contact your attorney, I highly suggest reviewing the EEOC resource guide on effective position statements.

Next, the EEOC follows up with a formal Request for Information. The RFI may ask the employer to submit policies, the charging employee’s personnel files, the personnel files of other individuals and other relevant information, such as proof of training and contact information for potential witnesses. The EEOC may also request a visit to the workplace to view evidence and interview potential witnesses.  Although this can speed up the information gathering process, it can also be disruptive to the company and create an over-exposure of facts.  If the EEOC does not come on-site, they will likely still contact employees who may have pertinent information or may be witnesses to the case. They have the right to do this with non-management employees without the employer’s knowledge or permission.

It is important to provide all information requested by the deadline provided. In the case of unforeseen circumstances that make it impossible to meet the submission date, an extension must be requested from the EEOC Investigator. Once submitted, the EEOC will review the information to determine whether the complaint merits further action. One or more of the following actions will then take place.

  1. A Dismissal and Notice of Rights will inform the employee that the EEOC has dismissed the case, yet she still has the right to file a lawsuit with the federal court within 90 days.
  2. A Letter of Determination will state that there is reasonable cause to believe that discrimination/harassment has occurred and invite the parties to join the agency in seeking to resolve the charge through an informal process known as conciliation.
  3. If conciliation fails, the EEOC has the authority to enforce violations of its statutes by filing a lawsuit in federal court on behalf of the employee or issuing the employee a Notice of Right to Sue, and she may file a lawsuit in federal court within 90 days.

Although this process can be a time burden, preparing ahead by conducting and documenting prompt, thorough and impartial investigations can put a quick end to the fact-finding process, and limit liability exposure. InvestiPro can help. See our demo at www.goinvestiPro.com.

 

 

Top 10 Investigation Challenges – Part 5; The investigation, when your witness won’t speak.

There is such as thing as constructive silence….and then there is just silence. Unfortunately some employees believe that they are protecting themselves, or their co-workers, if they simply refuse to answer any questions in a workplace investigation. But the law does not allow employers to simply state that they could not proceed with an investigation because the witness(es) would not cooperate. So, it’s time to put on your hat as a “people manager” and take down the wall of silence.

As with any employee meeting, there needs to be a balance between taking a hard line and acting with compassion and respect. Continue reading