Me Too? Time for All Employers to Update their Anti-Harassment Policies | Ballard Spahr LLP – JDSupra January 22, 2018

https://www.jdsupra.com/legalnews/me-too-time-for-all-employers-to-update-21920/

Bruce’s Summary: Well 2018 is here and workplace harassment and retaliation allegations are still rolling in. It seems the talk is that everyone is still waiting for more workplace harassment and retaliation complaints to surface and surface they will. The tip of the iceberg is glaring and what’s underwater is yet to clearly surface and continue to raise more eyebrows with the shock of who it may be. Today, no one is shielded by the nature of their position, their status or current reputation, as has been seen of late.

However, one visible change in today’s work environment is a higher number of complaints are being openly and pointedly directed at the very top of the executive level regardless of industry or size. As we all know in the past for HR Professionals and small businesses one of the biggest challenges was not the fact of getting the message down through the employee ranks but more getting the message to permeate up the executive ladder. It no longer is acceptable for the executive ranks to ignore or not take such allegations seriously. Everyone is watching.

For HR Professionals and small businesses, now is the time is to ensure their house is in order for responding to workplace harassment and retaliation complaints. The author(s) indicate that although employers may have standard harassment and retaliation policies and procedures currently in place and they may have worked in the past, they may not work so well today. If there ever was a time to ensure both the “I”s are dotted and the “T”s are crossed in an employer’s policies, it’s now.

In reference to regulatory type training on such subjects as anti-harassment and retaliation training, more positive results were always achieved when the training was live and interactive.

In addition, as more allegations move up the executive ladder, employers must ensure that a clear recognition of neutrality of any investigation is paramount to the individuals involved, work environment and organization. One clear signal of neutrality of the investigation, especially within the executive ranks, is the use of an outside neutral investigator.

The author(s) suggest and provide examples for employers use in performing an audit of their current affected policies and procedures, training, reporting channels and considering pros and cons of utilizing internal/external investigators. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

Should You Look Outside Your Organization To Investigate A Sexual Harassment Complaint?

https://www.jdsupra.com/legalnews/should-you-look-outside-your-49767/

Bruce’s Summary: Interesting article from the New York Times presented by the author on the effectiveness and pitfalls of sexual harassment investigations being performed by a company’s internal human resource department.

The theme seems to be that more times than not, based on the fact we are dealing with human beings, the investigation itself can become entangled in political intrigue or the presence of an imbalance of internal power. At times, if not recognized, this type of behavior can result in a negative political effect on the internal HR person performing the investigation and/or the HR department itself.

During my 30 plus years of both performing internal and external investigations including sexual and harassment type allegations, the first question was the safety of the complainant and second as a HR Professional, was evaluating the internal political and power status of the parties (perceived or real) involved. Based on the evaluation, determine the best course to follow in either performing the investigation internally or using an outside neutral investigator. Third, if it was felt an outside investigator was warranted being solidly prepped to answer the management “why” questions with good business logic and reason. Here lies one of the litmus test for HR Professionals in being able to demonstrate an understanding of and speak the business’s fundamental language.

It’s not whether an individual or department can do the internal investigation itself, that’s not the point, the point is; are there enough political and/or power struggle issues that could potentially prevent someone as a HR Professional from effectively performing a through and complete investigation regardless where the evidence leads.

Core for any HR Professional is understanding the businesses basic language and next understanding it is the HR Professionals responsibility to develop and maintain solid Partnership relationships with their peers, counterparts and executives in building mutual respect, trust and inclusion. Once Partnerships are developed this allows for a more open and trusted dialogue regardless of the particular issue needing to be addressed. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

Will The “Spirits” Of The Holiday Haunt You? (Not Just Your Obligatory “Holiday Party” Blog Post) 12-12-17

https://www.jdsupra.com/legalnews/will-the-spirits-of-the-holiday-haunt-33381/

Bruce’s Summary: Well it’s that time of the year again – time for the annual “Christmas Party.” Some are not looking forward to it and some are but sadly there are those few who still don’t get it even in today’s time of national discussion about sexual harassment. In our last blog, we talked about “Harvey,” the one at work who doesn’t get it. He or she is either the one who is “god’s gift” to mankind or the one who thinks what they have to say is funny. These days their puns, jokes, pranks or subtle inappropriate comments are on a slippery slope. People are more sensitive today to inappropriate behavior and feel more empowered to respond to such inappropriate or perceived inappropriate behavior. It appears the days of ignoring it and hoping it will go away are fading into the distance. HR get ready, you may be busier in the New Year than previously thought. The author does a good job of sharing both Party Planning tips and more importantly some post-party wrap-up tips for the reader. Very Good article. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

Where’s Your Harvey? How To Keep Your Company Out of the Headlines 12-6-17

https://www.jdsupra.com/legalnews/where-s-your-harvey-how-to-keep-your-23311/

Bruce’s Summary: Well, timing couldn’t be better to address and recognize the dirty little secret that everyone has known about, however for some crazy reason continues to consciously ignore for various reasons until possibly now. If I learned nothing else over the last 30+ years in industry, there are not secrets.

You know that’s just Harvey, you know how he is. As a reality test for yourself, who is your Harvey and what should be done about him/her? I do know the earlier the inappropriate behavior(s) is recognized and confronted for what it is, the less dramatic the issue(s) are for all concerned. Simply, do you expose, address and nip it internally or allow it to continue and just wait until someone (probability scale is going up) internally addresses it in a public forum for you.

Is it worth damaging your brand, your public image and more than likely once exposed tons of expenses under the guise of damage control? In addition, no one goes un-scathed, besides the perpetrator, a few others may also pay the ultimate price of termination possibly for having known of the inappropriate and unprofessional behavior and not stepping forward. For those terminated, when interviewing for their next job ultimately the question about their departure from their old company will come up. It doesn’t go away.

The author does a good job of going a little deeper into the problem and provides some thoughtful solutions for the reader.

Very Good article.  

“None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

HR issues that arise when natural disasters hit 8-29-17

http://www.jdsupra.com/legalnews/hr-issues-that-arise-when-natural-73419/

Bruce’s Summary: As HR professionals, we are quite often the expected resource for addressing and handling issues that arise unexpectedly. Natural disasters whether forest fires, tornados, hurricanes or earth quakes, depending on our geographical local. would come to mind. Being prepared is always the solution, but being prepared is a novel quest when you’re understaffed and low on budget. There are ways around large cost items.

For those of us on the west coast being prepared for an earthquake (now for up to 72 hours on our own) or forest fires, could be a main focus. I can still remember the quake on October 17th in 1989. The author presents a good overview as a first step in reviewing policies and procedures and dusting off evacuation plans. Conducting a mock/simulated disaster exercise jointly with local emergency agencies may not be that expensive but would pay off dividends later. The author covers some of the commonly asked questions about telecommuting, exempt and non-exempt pay requirements, working from remote locations, shut-down issues, types of time off and employee assistance plans, etc. Good things to think about and shore up before an actual need arises. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

Is Your Investigator More Biased Than You Think? Part II: How to Keep Truthiness Out of Your Workplace Investigations 7-19-17

http://www.jdsupra.com/legalnews/is-your-investigator-more-biased-than-16017/

Bruce’s Summary: I mentioned in my Part I overview, that having been in industry for some 35 years and working from the ground floor (brick and mortar) to the executive suite has provided me with a birds eye view of the how organizations get themselves in trouble because basically the culture, morale and engagement all start and finish in theexecutive suite. The biggest challenge was always keeping the opinions where they belonged, out of the investigation. I can’t tell you how many times I had the conversation that opinions are not policy. Even today as a consultant offering mentoring/coaching, conflict resolution and internal investigations services, on numerous occasions this conversation had to be addressed. As in all discussions, it’s not what you say but how you describe the difference between the two.  

Both Part I and II would be great overviews to give organizational staff by their HR Executives. This is more the why and how of a good solid investigation. As I said in my overview of Part I, performing internal investigations has become one of the largest underlying potential cost items for business. If we don’t start off, as the author says with, “the person in the position to make decisions recognizes and can identify possible biases and takes steps to correct what might be negatively affecting the decision-making process” this will come out sooner or later at a cost and the potential embarrassment publicly for the organization. This shouldn’t have to occur. By reviewing the potential for bias early and either recognizing this may or may not be a potential issue, if felt an issue then the person making the decision can counter by bring in an outside neutral investigator. This is where the investigation should start.

The author offers “5 Corrective Measures” that are great reference points but also provides some excellent “Additional Tips” of good common sense to follow. This article is a little long but brings the needed depth for Internal Investigators and their HR Executive staff to understand what a potential slippery slope lies before them. Not that this wasn’t previously known, the two articles just clarify the subject matter. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

Is Your Investigator More Biased Than You Think? Part I: How Unconscious Bias Can Disrupt Your Workplace Investigations 7/18/17

http://www.jdsupra.com/legalnews/is-your-investigator-more-biased-than-12685/

Bruce’s Summary: Having been in industry for some 35 years and now providing investigative consulting in the HR arena, I know performing internal investigations has become one of the largest underlying potential cost items in business. The word neutral should be paramount when considering doing an investigation internally. This article (Part I.) is a good overview on the subject of unconscious bias by the author(s) and certainly brings home the fact of being extremely conscious at the very beginning, in the decision process, when a potential internal investigation is on the horizon of what potential liabilities lie ahead.

Speaking of unconscious bias, for those poor folks who are internal, you already know you’re in trouble when middle or upper management wants it done (investigation) “quickly.” When you hear, “just do it and get it over with but don’t interview so many people this time,” and it is certainly implied that you aren’t being told what to do, “you’re neutral.”

This certainly doesn’t happen in every case but in those where this kind of discussion occurs you already have unconscious bias but not from the investigator, this lies with middle and upper management. Is this the tail wagging the dog? This is a clear signal that something is up and those in power positions are possibly too close and some form of outside help may be needed. It’s not that you can’t do it, the basic reason many times is you and/or the management team are just too close to the issue/person and that is when unconscious bias can and does very easily come into play.

In HR today, HR Professionals can’t be everything to everyone, but professionally we all need to recognize when either the internal investigator or the internal team is too close to the issue/person and that the front end cost of an outside neutral investigator will offset the potential legal cost associated with letting unconscious bias seep into and corrode an investigation. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

Workplace Violence Occurring At Alarming Rate: Time For Employers To Be Proactive 6-20-17

http://www.jdsupra.com/legalnews/workplace-violence-occurring-at-43681/

Bruce’s Summary: When articles like this are written, is this supposed to conger up fear and panic? Of course not. As Business Professionals part of our role is to ensure that our plans such as our Emergency Action Plan (EAP) is up to date and our employees are aware of what to do and how to react. With the recent wave of violence in the news again and again, a review may be in order and if you don’t have a plan, it’s really time to seriously consider such a program. It’s one of those programs you hope you never need, but if needed, you’re grateful you had one. The authors present a good overview of the steps to take in preparing a plan, and suggest, as part of the training, reviewing with employees a copy of the Department of Homeland Security’s (DHS) latest brochure. As I’ve said before, it’s sad that we are at a point where fighting for your life and training how to do that must now be a major focus in protecting our employees as well as our citizens. Please share! Great overview. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.”

EEOC Releases Enforcement and Litigation Data for Fiscal Year 1-23-17

http://www.jdsupra.com/legalnews/eeoc-releases-enforcement-and-12397/

Bruce’s Summary: In reference to the EEOC Commission Report for Fiscal Year 2016, the authors do a good job of presenting the key highlights outlined in the report. One key element discussed by the authors is the overall numbers for total “number of charges” being only slightly higher than the numbers in 2015 and 2014. Shown also is the LGBT-related statistics now followed by the EEOC showing a consistent increase in charges. Another number is the litigation statistics for FY2016 which show the total number of lawsuits being significantly down.

One number within the EEOC’s report that I feel somehow seems to get lost is the number and percentage found under the “No Reasonable Cause” section. There’s an old saying I like to use during regulatory training sessions in reference to this section, “If you aren’t talking to your employees, someone else is” and I feel that this section says it loud and clear.

The “All Statutes” Report total number for FY2016 was 91,503 claims and of that number 65,882 (67.7%) were found to have “No Reasonable Cause”. When communication lines break down within an organization, regardless of size, and employees feel that they are no longer being heard internally, they will talk turn to someone outside the organization whether in the legal and/or government field. I feel the data above shows that most employees want to be heard. With the honor of building and sustaining partnerships falling on HR, right or wrong its HR’s role to ensure communication lines are open between both HR and their employees and HR and the management team. No one said it was easy. We are as HR Professionals supposed to be representing both parties. We need to do more of that. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com