As employers revisit their anti-harassment policies, they also should fine tune their complaint procedures. Without a robust complaint procedure that employees trust, an anti-harassment policy is not worth the paper on which it is written.
1. Make Clear Who Can Bring Complaints
Complaint procedures should not be limited to employees who have experienced harassment. Employees who witness inappropriate conduct should be able to file reports as well.
Make clear that employees can report sexually or other harassing conduct even if it is not unlawful. One stray comment that degrades another’s gender may not constitute unlawful harassment, but it is harassing conduct that should not be tolerated. As with the anti-harassment policy, the complaint procedure should focus on what is unacceptable, and therefore prohibited, even if it is not unlawful.
One sexist joke—rather than a barrage of sexist remarks—is not unlawful. But employees should know that such jokes are entirely unacceptable.
The anti-harassment policy and complaint procedure must apply to racial, ethnic, religious and other forms of harassing conduct, not just sexual. Make clear how they apply to discrimination, retaliation and failure to accommodate too.
[SHRM members-only HR Q&A: What are the different types of sexual harassment?]
2. Have Multiple Points of Contact
For the complaint procedure to be effective, employees cannot be required to report their concerns only to their supervisor. After all, a supervisor may be the person engaging in harassing conduct.
At a minimum, employees should be given the opportunity to consult with supervisors or HR. But employers may wish to broaden the pool of potential points of contact.
Consider offering anonymous reporting from an independent third party, similar to hotlines that public companies provide for whistle-blowers.
If an employer uses an external reporting vehicle, consider to whom the external reports will be communicated internally. If the report goes to only one company employee, he or she could bury it. Employers are well-advised to ensure that complaints made externally are reported to multiple people internally.
3. Detail What Constitutes Prohibited Conduct
The complaint procedure needs to flesh out what employers mean by unacceptable harassment in the workplace. There are three key points:
- The conduct giving rise to the complaint can occur not only in the workplace but also at company-sponsored business and social events. Indeed, the policy and complaint procedure should make clear that it applies to events entirely unrelated to the workplace, such as an employee pursuing a romantic relationship with a co-worker by calling her at home.
- The conduct giving rise to the complaint need not be by an employee. Employees can raise concerns about harassing behavior from customers, vendors and suppliers.
- Harassment via social media, e-mail and text messages are all within the scope of prohibited conduct. Yes, even a post on an employee’s private Facebook page can be cause for corrective action if it is about co-workers, business partners or customers, or if those parties see it.
4. Provide Robust Protection Against Retaliation
The main reason employees refrain from reporting harassment is fear of retaliation. The complaint procedure should set the foundation for a culture that does not brook retaliation of any kind.
Consider these three points:
- Do not limit the protection to complainants. It also applies to witnesses, others who are involved in the investigation and those associated with the complainant, such as a spouse.
- The business should do more than prohibit retaliatory adverse employment actions, such as a discharge. Employers also should bar retaliation in the form of material changes to the terms and conditions of employment, such as assignments, harassment or ostracism, and retaliation independent of the workplace, such as badmouthing an employee in the professional community.
- The employer should spell out, in training and in investigations, that a complaint that does not have legal merit is not an excuse to engage in unlawful retaliation. The courts are flooded with cases where employees’ harassment complaints have been dismissed on summary judgment but the judge has ruled that the ensuing retaliation claims have sufficient merit to proceed to trial.
5. Take Strong Corrective Action
The policy should make clear that prompt and proportionate corrective action will be taken if the company concludes that an employee or nonemployee has engaged in harassing conduct, even if the conduct is not unlawful. For this statement to have teeth, make clear that the corrective action may include discipline up to and including termination of the employment or other relationship. The reference to “other relationship” is important because the wrongdoer may not be the company’s employee.
Some employers go further and clarify that the complainant will be told the nature of corrective action, where such action is taken. There are times when an employer should disclose this information, but it may not want to lock itself into doing so in its policy.
Be prepared: If you have a strong anti-harassment policy and complaint procedure, you will get more complaints. That’s a good thing. You don’t want employees suffering in silence. While employees have the right to file external complaints, most employers also would prefer to have the opportunity to investigate and resolve issues internally.
So don’t celebrate a complaint-free year. That could mean that your anti-harassment policy and complaint procedure are not trusted.
Jonathan A. Segal is a partner at Duane Morris in Philadelphia and New York City. Follow him on Twitter @Jonathan_HR_Law.
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The Fair Labor Standards Act (FLSA) requires employers to pay their employees for all hours they are “suffered or permitted to work.” These hours are known as “work hours” or compensable time.
What is compensable time?
Compensable time includes all hours during which an individual is actually performing productive work and all hours an employee is required by his or her employer to remain available for the next assignment. Compensable time does not include periods where an individual is relieved of all obligations and is free to pursue his or her own interests.
How is compensable time calculated?
To determine how much of an employee’s time is compensable time, employers must determine whether the employee is on duty, and how rest periods or certain industry extended hours affect an employee’s hours of work. The U.S. Department of Labor’s (DOL) Wage and Hour Division enforces work hour standards.
What are the penalties for noncompliance?
FLSA violations are punishable by a fine of up to $10,000, imprisonment for up to six months or both. In addition, these violations are subject to civil liability in state or federal courts and employers may be required to compensate employees for unpaid wages, liquidated damages, attorneys’ fees, court costs and any other amount a court sees fit to impose. Fee amounts may increase for repeat and willful offenders.
Employers may not discharge or discriminate in any manner against an employee who files a complaint or cooperates with the DOL in an investigation or proceeding.
DID YOU KNOW?
More than 60 percent of employee turnover is voluntary, according to a recent ADP Research Institute report. This report allows employers to understand the workplace characteristics that are most likely to lead to employee turnover.
If you are experiencing high turnover, chances are you are experiencing high losses as well. It costs nearly 20 percent of an employee’s annual salary to replace an employee. Contact us today to learn more about valuable retention strategies to implement at your company.
FBI Warns of Direct Deposit Phishing Attacks
The FBI warns that cyber criminals are posing as HR employees and using a phishing scam to get employees to provide the scammer with access to the company’s self-service payroll platform.
When employees click on the link within the scammer’s email and provide the requested information, they unknowingly provide the scammer with their W-2 and pay stub information. The scammer can then change direct deposit instructions, passwords, credentials and email addresses linked to the account to avoid detection. In the majority of cases, employers were not aware of anything until workers reported they weren’t receiving their wages.
To learn how you can prevent this from happening at your organization, please view the FBI’s suggestions or request employee cyber security training materials from Solutions At Work today.
Contact Solutions At Work at for more information on wage payment and work hour laws.
Pursuant to NRS 613.335 and sections 2 to 8, inclusive, of the Nevada Pregnant Workers’ Fairness Act (effective October 1, 2017) employees have the right to be free from discriminatory or unlawful employment practices based on pregnancy, childbirth, or a related medical condition.
Under the Act, it is unlawful for employers to:
- Deny a reasonable accommodation to female employees and applicants, upon request, for a condition related to pregnancy, childbirth, or a related medical condition, unless an accommodation would impose an undue hardship on the business of the employer.
- Take adverse employment actions against a female employee because the employee requests or uses a reasonable accommodation.
- Deny an employment opportunity to a qualified female employee or applicant based on a need for a reasonable accommodation.
- Require a female employee or applicant to accept an accommodation that the employee or applicant did not request or chooses not to accept or to take leave from employment if an accommodation is available.
Under the act, an employer may:
- Require a female employee to submit written medical certification from the employee’s physician substantiating the need for an accommodation because of pregnancy, childbirth, or related medical conditions, and the specific accommodation recommended by the physician.
For further information regarding the Act, contact the Nevada Equal Rights Commission or call Solutions At Work at 775-828-7420.
On July 17, 2017, U.S. Citizenship and Immigration Services (USCIS), part of the U.S. Department of Homeland Security, issued an updated version of Form I-9: Employment Eligibility Verification (Form I-9). Under federal law, every employer that recruits, refers for a fee or hires an individual for employment in the United States must complete a Form I-9.
The updated form replaces a version that was issued in 2016. Employers may continue using the 2016 form until Sept. 17, 2017. Exclusive use of the updated form is expected by Sept. 18, 2017. The new form expires on Aug. 31, 2019.
- Employers must become familiar with the new Form I-9 and transition to its exclusive use by Sept. 18, 2017.
- Employers must continue their compliance with collecting and retaining Form I-9.
- Employers may download the 2017 Form I-9from the USCIS website.
Field Changes and Updates
The changes made by USCIS include revisions to the instructions and to the list of acceptable documents.
|Revisions to Instructions||Revisions to List of Acceptable Documents|
|· USCIS changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
· USCIS removed “the end of” from the phrase “the first day of employment.”
|· USCIS added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
· USCIS combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection C#2 in List C.
· USCIS renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C will change from List C #8 to List C #7.
Please visit the USCIS website for more information regarding USCIS or the new Form I-9.
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