Posts Tagged ‘workplace harassment’

When An Employee Has A Serious Complaint

Thursday, September 15th, 2016

The following post is by Bruce Clarke, CAI’s CEO and President. The article originally appeared in Bruce’s News & Observer column, The View from HR.

It happens in every workplace. The same serious and unlawful misbehavior we see in our communities sometimes find its way to the job.  People are the greatest asset of an employer but can be the “crabgrass in the lawn of business,” as my friend says.workplaceissues

What should happen when harassment, discrimination, abusive treatment and other serious misbehaviors rear their ugly heads?

Managers, please view a complaint as an opportunity to make a situation better AND the long-term relationship with the victim stronger. Psychologists in workplace studies say that an emotional crisis is a key point where your response can make the employee’s attitude much better OR much worse.  Some even say that the best predictor of whether a problem will end in a lawsuit is how fairly you process the problem, not the problem itself.

Good managers do several things. They embrace the complaint, rather than avoid it, and focus on finding the right solution.  Neither of you caused the problem, so let the chips fall where they may and avoid prejudgment.  You will create a much better investigation and solution if you remain neutral on the outcome.  If you cannot be objective, ask for help.

Follow through with good listening, appropriate pushback to the victim for the whole story, and appropriate speed and discretion. Take any quick steps needed to prevent repeat behavior while you work.  Ideally, keep the victim informed of your progress.  Get help from HR or a mentor.  Follow your company’s complaint process, at a minimum.  Precedent can be important to consider, but avoid a foolish consistency as the saying goes.

Employees making complaints have an equally important role. Follow the complaint policy if there is one, but skip to another manager you trust if needed.  Your manager wants to hear how you feel, but must have facts to investigate.  Focus on the facts.  Who can help support your story?  Bring the problem to a trusted manager sooner rather than later.

Be honest about any part you may have played in the problem or steps you have already taken, good and bad. Have some discretion and give this time to work.  What is your manager going to hear when he or she investigates?  For example, be prepared to hear some things about your performance you may not like (but need to hear) if work quality is an issue.

An important question that employees and managers often fail to ask is: “What is the ideal outcome here?”  I am often surprised at how reasonable employees can be even in serious situations.  They know employers cannot guarantee perfect behavior by all.  But they have the right to expect help when they seek it.

Solutions to early-stage problems handled properly by all can be simple and effective, preserving relationships and protecting careers. Problems that are buried like a bone in the backyard will only get worse with age.

Bruce Clarke c

Bruce Clarke serves as CAI’S President and CEO, and has been with CAI since 2001. Bruce practiced labor and employment law with the national labor law firm of Ogletree Deakins for 18 years. He is listed in The Best Lawyers in America and was selected as one of North Carolina’s Legal Elite by Business North Carolina Magazine. Bruce is 100% committed to helping companies maximize employee engagement and minimize workplace liabilities.

Handling Third Party Harassment

Thursday, August 11th, 2016

Employers have the responsibility to protect their employees from workplace discrimination and harassment, whether by other employees or third parties.  Handbooks typically include EEO policies, and anti-discrimination/harassment policies, as well as reporting procedures and a commitment to investigate and resolve any issues.  Clearly these provisions cover co-worker situations, whether a peer or management employee, and the company has more control over that process.  But what do you do when the alleged discrimination or harassment complaint involves a customer, vendor, contractor or other third party?  All of these situations are tricky, but perhaps the most difficult is when the alleged harasser is a customer.  If you’re a B2C company selling to the public, the “customer / alleged harasser” is typically one individual and you won’t have to work with another company to resolve it.  If you’re selling B2B the alleged harasser is an employee of your customer so the lines of responsibility can get blurred.  Both situations present unique challenges.  Let’s focus on a B2B scenario today since that situation can be more tricky. thQE06GKOF

First and foremost, regardless of who is doing the harassing, you want it to stop.  You’re obligated to provide a harassment free workplace.   If that’s not clear at your workplace, it needs to be. However, determining if harassment occurred and if so making it stop will be handled differently when a customer is involved.

Do You Notify the Customer?  Short answer – Yes. With customers it’s a more difficult conversation, but of course, no customer, client, vendor, etc. is more important than the legal rights of your employees. While conversations with clients about these issues are surely uncomfortable, people interacting with your employees need to realize that it is not appropriate to engage in this way with staff of the company and it must stop. If the behavior doesn’t stop, the employer needs to take such action as removing the client/customer from the workplace in the future.  Now that’s an answer you would expect me to give right?  But many of you are thinking – “If only it were that easy?” What if an important customer is involved?  Will you get blamed for jeopardizing the account over potentially a frivolous charge?  What will your Sales Director say – should you tell him?  Will your Leadership team / board / your boss stand behind you? What if the customer’s employee claims your employee was actually doing the harassing?  Questions like these usually make it hard for you to just swiftly and unilaterally take action in harassment cases involving a customer.

So now what?  Let me start here – if you are a member and find yourself in this situation, give anyone on our Advice & Resolution team a call. These cases are tricky and can go in many different directions based on your situation.  Here are the steps I would generally recommend you take:

  1. Conduct what I call a “pre-investigation.” You want to quickly get an idea of what you’re dealing with here. Take no more than a day, two at most.  Get the employee’s statement regarding the inappropriate conduct, date, times, and witnesses and ideally in writing.  Talk to available witnesses.  As with any harassment case, it’s critical that you understand the nature and context of what has occurred. Is this an affair gone bad?  Or does it involve a series of inappropriate comments? Were both parties engaging in the inappropriate behavior until one day a line was crossed?  Is the harassment on-going or has it stopped?
  2. At this point, you should have a reasonable idea as to what was going on, and who is at fault, at least from your side’s vantage point. That will shape how you approach the customer.  I wouldn’t pick up the phone and call the customer just yet.  You need another leader involved.  Ideally your boss.  You don’t need to divulge names, but you want to make sure they are aware you received a compliant, you investigated it, your general findings, and your planned approach with the customer.  I’m not suggesting you get permission, however, they might not agree with your course of action and good to have that discussion now.  They may also have relevant suggestions for you.
  3. After you have received all relevant information about the complaint and made sure that information is included in written form, the allegations should be promptly referred to an appropriate customer representative.   Since the alleged harasser is a customer’s employee, the customer is obligated to investigate.  The person you choose to contact should be considered carefully and should be in a position to both understand the implications of what has occurred and have the authority to take appropriate action. Appropriate contacts could include human resources, an officer or a manager. When in doubt, in most cases, the HR Manager should be contacted.  The person to whom you report the complaint should never be implicated in any way in the harassment that’s been alleged. When you report the complaint, you should ask that the customer investigate, take whatever corrective action is necessary and keep you informed. You want prompt corrective action to be taken if warranted. If it appears that the customer is dragging their feet, you should discuss that issue with the customer.
  4. Sometimes these cases go smoothly – the complaint is clear, it’s definitely harassment, the harasser is clearly guilty, and the customer takes swift action to stop the behavior. Other times, two very different accounts of what has happened exist and two very different courses of actions are proffered.   If you find yourself in the latter case, you’ll be glad you involved your boss / leader in the case.  The customer may believe your employee is equally at fault and advises you to take action against them.  Any move initiated by the company should not appear retaliatory.  Or they may refuse to take any action.  You may have to get attorneys involved.  Make sure on your side that if appropriate based on your investigation to remove contact between the employee and the harasser.  You may ultimately have to make a decision as to the future of your relationship with the customer.

One old axiom of business is that the customer is always right.  As we see here that may not always be true.  When a customer engages in harassing behavior, you need to act, but the path isn’t always clear.   CAI will help illuminate your path to the right resolution for your business.

Minimizing Potential Liability for Workplace Harassment Issues

Tuesday, May 28th, 2013

John GuptonCAI’s Advice and Counsel Team answers several questions from members daily. One question that the team members often receive deals with workplace harassment—what should our organization be doing to minimize our potential for liability for workplace harassment issues? In today’s post, Advice and Counsel Team Member John Gupton provides a number of solutions for minimizing harassment at your workplace:

In regard to the issue of unlawful workplace harassment, a company must show that it took immediate and appropriate action to eliminate the offensive conduct. Prevention is the best tool for avoiding harassment charges. For this reason, employers should:

  • Maintain a written policy on harassment, communicate it to all employees, and provide multiple avenues for employees to register any complaints.
  • Provide training to supervisors on a regular basis.
  • Make it clear to all supervisors and employees that harassment on the job will not be tolerated.
  • Place particular emphasis on the company’s strong disapproval of this conduct.
  • Require members of management to report any known harassment.
  • Thoroughly investigate any claims of harassment.
  • Provide appropriate discipline in cases of harassment.

Furthermore, under EEOC enforcement guidance, an employer’s workplace harassment policy must prohibit harassment on all protected categories, not just sex harassment (i.e., harassment on the basis of race, color, sex, religion, national origin, age, genetic information and disability status). According to these EEOC guidelines, the policy must include at a minimum:

  • A clear explanation of the prohibited conduct.
  • Assurance that employees will be protected against retaliation.
  • The ability to make a complaint to more than just the employee’s immediate supervisor.
  • Confidentiality– to the extent possible.
  • Prompt, thorough and impartial investigations.
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

If you have questions regarding harassment, please contact a member of CAI’s Advice and Counsel Team at 919‑878‑9222 or 336‑668‑7746.