As a follow-up to our blog regarding measures preventing workplace harassment, we’ve teamed up again with employment attorney at Offit Kurman PA, Howard Kurman, to share best practices to address workplace harassment when precautionary measures aren’t enough. Howard is frequently retained by companies to conduct objective workplace investigations encompassing a range of issues including workplace harassment, employee misconduct, whistle-blower complaints and misappropriation of proprietary or confidential company data.
As a company executive or an HR employee, you might be wondering how these types of allegations should be handled within your organization. If you’ve taken all of the recommended steps to prevent workplace harassment, but still find yourself navigating this type of issue, our interview with Howard below can provide insight into how to manage a workplace harassment claim when it does happen.
Q: What avenues do you recommend to report a workplace harassment claim and to whom should it be submitted?
A: The key is not mandating that there be any one avenue through which an employee can submit a complaint. It is best to provide multiple options. These may include going to the Human Resources department, or any senior-level executive with whom the employee feels comfortable. Reporting through an anonymous hotline is also a great alternative for those who wish to keep their identity confidential.
Including the formal complaint process in your workplace harassment policy is important, but not enough. You also want to make sure your employees are trained periodically and understand their options as well as how they’ll be protected from retaliation.
Q: What are the keys to an effective workplace investigation? Who should lead such examination?
A: I recommend an experienced expert – a trained employee or an outside counsel – conducting the investigation. Skilled interviewers who understand how to put people at ease and ask open-ended questions, generally collect more accurate information from all parties, rather than asking leading questions and influencing results.
A workplace investigation should be well-orchestrated, not just substantively but also procedurally. Documenting the investigation’s results is almost as important as the accuracy of the obtained information, as these notes can become critical in the event of a claim or litigation.
Q: How should a company respond if workplace harassment has been proven?
A: An employer is not bound by criminal law standards of proving guilt beyond a reasonable doubt. If you’ve done a good-faith investigation, carefully documented it, talked to all parties that have relevant information, and you conclude that it is more probable than not that workplace harassment has occurred, then you can determine the degree of disciplinary actions.
In my experience, companies often jump to terminating a person, which could lead to costly lawsuits. Not every act of workplace harassment warrants termination or discharge. You have the option to take many other actions including counselling, reprimand, or suspension without pay. In deciding which penalty is appropriate, you should look at the severity of the misconduct.
If you plan to terminate an employee, it’s best to have the case reviewed by an experienced employment attorney in order to avoid potential mistakes or lawsuits.
Q: On the other hand, how should the situation be handled if it cannot be concluded that such harassment has occurred?
A: At times, you may have completed a thorough and well-documented investigation, but you may still cannot conclude that inappropriate misconduct or harassment took place—there’s nothing wrong with that.
In that case, you simply want to inform the alleged victim that despite a thorough investigation the company is not able to substantiate the allegations. However, such employee should feel encouraged to bring any possible issues to your attention again in the future.
The alleged perpetrator should also be informed of the inconclusive outcome of the investigation as well as reminded of his/her obligations to adhere to your workplace harassment policy at all times.
However, as we discussed in our first installment of this blog series, the best defense to protect your company from a costly Employment Practices Liability (EPLI) claim or lawsuit is combining a comprehensive workplace harassment management plan with a solid EPLI policy.
But if you are already dealing with a potential workplace harassment claim within your company, I recommend contacting your trusted insurance advisor to go over the stipulations within your EPLI policy (should you need to use it), as well as contacting a reputable law firm for help with the investigation process. For assistance conducting such an investigation, contact hkurman@offitkurman.com (410-209-6417). Similarly, if you have any questions regarding your EPLI policy for your organization, fell free to reach out to me at cmorsberger@psafinancial.com.
