How to Conduct a Proper Harassment Investigation

Harassment claims are one of the most significant and popular threats against employees and employers today. Harassment and harassment-related claims are destructive to workplace morale, reduce employee productivity, and detract from an employer’s mission and purpose. While the most common form of harassment is sexual harassment, harassment based on any protected status is improper.

To further complicate matters, employers also must be concerned with lawsuits filed by accused harassers who were terminated in the employer’s attempt to provide prompt remedial action without conducting a proper investigation.

To avoid liability to both the complainant and the accused harasser, it is imperative for an employer to conduct responsible, thorough, and effective investigations into harassment complaints. Employers must act affirmatively to create policies against harassment and must effectively implement these policies.

So, what should you as the employer do? The steps below are a good general guide to avoiding harassment claim liability:

Step 1: Create Anti-Harassment Policies – Every employer should promulgate a clearly written, well-publicized anti-harassment policy. Make sure your policy applies to any harassment based on protected status. A policy always should include (1) the company’s opposition to harassment, (2) examples of harassment, (3) complaint procedures, (4) individuals to contact if an employee feels he/she is being harassed, (5) a statement that the company will promptly investigate any complaint, and (6) a strong statement that retaliation against complaining employees will not be tolerated. Always distribute a copy of your anti-harassment policy to all employees and require all employees sign a form acknowledging receipt. You should also post a copy on workplace bulletin boards and periodically redistribute the policy. It is also a good idea to periodically revise and update your policy based on any changes in the law.

Step 2: Implement Anti-Harassment Policies – You should establish an easy line for communicating harassment complaints. You also should designate at least two people, one male and one female, to whom an employee should complain about harassment allegations. Once a harassment complaint is made, you should choose an investigator trained in conducting harassment investigations. The investigator always should be impartial, unbiased, and objective.

Step 3: Conduct a Thorough and Proper Investigation – A good investigation always should begin by reviewing (1) the company’s existing policies and procedures, (2) applicable federal and state discrimination laws, and (3) all relevant documents, including the complainant’s and accused harasser’s personnel files. Next, the investigator should interview the complainant. The interview should be held in a neutral place where other employees cannot observe the interview. A witness should always be present for the complainant’s interview. After the interview, the investigator always should ask the complainant to sign a statement summarizing the complaint. The witness also should take notes of all relevant facts stated during the interview. After the complainant interview, the investigator should interview the accused harasser. Always make sure the accused understands the investigation process and understands the company will not tolerate any retaliation against the complainant. Finally, the investigator should interview all relevant witnesses including (1) those who witnessed the incident(s), (2) those with relevant information, (3) authors of relevant documents, (4) people the complainant asked to be interviewed, and (5) people the accused asked to be interviewed. The investigator always should draft witness statements after interviews and have each witness review and sign the statements.

Step 4: Come to a Resolution – You always must complete the investigation process. This includes final resolution. After all the interviews and document review, the investigator often must make some credibility determinations. After resolving any credibility issues, the investigator must draw a conclusion as to what happened and recommend appropriate corrective action. The goal of corrective action should be to prevent future harassment. The investigator should present his or her written recommendation to a designated supervisor – usually a human resources manager. Once a decision is finalized, you should work to implement the results in a timely manner. First, meet with the accused harasser to explain the results. Second, meet with the complainant to discuss (1) the investigation results, (2) the nature of any disciplinary action, (3) what the complainant should do if he or she experiences retaliation, and (4) continued confidentiality requirements regarding the investigation. There is no need to notify any other employees.

It is important to remember that each harassment case is different and these general guidelines may be insufficient for your particular case. You should take care to create anti-harassment investigation policies that are flexible for each individual case. If you are ever in doubt, your best bet is to contact counsel before proceeding.

Coles Corner Winning Wine: October 2009 (Archive)

October 2009: Llano 2007 Vinter's Selection Cabernet Shiraz. If you've never tried Texas wine, this wine is a great introduction. The fruit is brighter than a traditional Cabernet and the unmistakable spice of the Shiraz shines through. Grab a bottle of this wine now and next October be sure to mark your calendar for the 17th Annual Llano Estacado "Grape Day."

The Importance of Human Resources

In our practice, we often encounter companies with little to no Human Resources department, division, or personnel. More often than not, small businesses assign the administrative HR tasks (processing applications, completing I-9s, administering health insurance plans, payroll, etc.) to other office personnel, whether it is an Office Manager, a Staff Accountant, or an Executive Assistant (or some combination/split thereof). While most small businesses view this as a cost-saving measure, these setups can be quite harmful to businesses in the long run.

While HR may not be a traditional revenue-generating arm of your business, HR certainly can save your company money and even may add to the bottom line. To see this, though, you must recognize HR is much more than a payroll and personnel paperwork administrator.

So how can HR save your company money? Any business that has been involved in significant employment discrimination/retaliation litigation should know this answer. In such litigation, the existence of HR personnel, as well as the HR personnel’s performance, is critical. Whether or not a case proceeds to trial (and by extension the risk of a large judgment against the employer) hinges on several key questions:

• Did the company have an HR department?

• Did the company have policies regarding discrimination/retaliation/harassment and complaint procedures?

• Did the company follow those policies and procedures?

• Did the company take steps to remedy any discrimination/retaliation/harassment?

These are issues a highly skilled and trained HR professional handles best. Your payroll clerk, benefits administrator, office manager or accountant may not have the time or skills to assess and address these vital issues adequately and appropriately. As a result, any failures may result in a large judgment assessed against your company. I’m willing to bet your small business does not have a line entry on your balance sheets for “large adverse jury verdict.” A competent HR department (or a competent HR employee) is your first line of defense against such judgments and, by extension, can save you significant money.

You may remember I said earlier that HR can make you money. I know you might be questioning my sanity at this point, but it is true. Statistics regularly show a happy workplace is a more productive workplace. Higher productivity often leads to higher revenue. For example, think about how much it costs you every time an employee quits and you must hire and train a replacement. So how do you get a happy workplace?

We’ll be blogging soon about the human side of HR (which absolutely leads to a happy workplace) but, in the meantime, HR can create a happy workplace if you:

• Act as a sounding board for employees

• Train first-line supervisors and managers about proper employee supervision, providing positive feedback, and resolving employee disputes

• Ensure all company policies and procedures are followed and uniformly applied

• Act as a company’s first-line mediator between feuding co-workers

I think we can agree we each want a happy workplace that is as productive as possible. After today, I hope we also can agree achieving that goal calls for a Human Resources department or, at a minimum, a skilled Human Resources employee.

Coles Corner Winning Wine: September 2009 (Archive)

September 2009: Wall 2006

Cabernet Sauvignon: For Cab

lovers a big and bold red

wine is a necessity. This Cab

is not quite as big and bold

as a classic Cab. But this Cab is ready to drink and delivers bright mixed berries and

a long finish.

"Salaried" Employees Are Not Always "Exempt"

Employers often hold a common misconception that salaried employees absolutely are exempt from overtime wages under the Fair Labor Standards Act (FLSA). This misconception, as well as the resulting consequences from misclassifying a non-exempt salaried employee, can be costly. Salary is merely one aspect of some FLSA exemptions. The employee's duties and not his or her title or method of pay truly determine an employee's exempt or non-exempt status under the FLSA. Paying a non-exempt employee a salary does not determine per se whether the employee is entitled to overtime wages.

To best determine an employee's status you should contact an attorney, but the most common exemptions (and those exemptions in which salary is included in the analysis) include:

• Professional Exemption: Primary duty requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized instruction OR primary duty is work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.
• Administrative Exemption: Primary duty is office or non-manual work (must directly relate to management or general business operations of employer or customers). The employee must also exercise discretion and independent judgment on matters of significance.
• Executive Exemption: Primary duty must be management and the employee in question must regularly direct the work of two full-time employees (or equivalent). The employee in question also must have authority to hire and terminate employees OR recommendations on these issues are given particular weight.

Again these are simply the three most common exemptions (the FLSA includes a lengthy list of exempt employees) and even the particular requirements for these exemptions can be tricky. Assuming the employer properly classified the employee as exempt, an employer still can destroy this exemption by its actions. Some common actions that destroy exempt status are: docking pay for work quality or quantity and using exempt employees to perform non-exempt work.

Remember, your general conceptions regarding salaried versus non-salaried employees might not be entirely accurate. Ensuring you properly classify your employees as exempt or non-exempt will save you money in the long run.

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Coles Corner Winning Wine: August 2009 (Archive)

August 2009: Terrunyo 2005 Carmenere: In a word, this wine embodies the quintessential red wine: rich fruit, smooth, and bold. The Carmenere grape is most commonly associated with Chile, and this wine showcases the grape and the Chilean contribution to the wine industry. Readers of this blog will know that we prefer light tannins and easily accessible wines and this wine is a prime example.

Are You Prepared? USCIS Conducting Random H-1B Inspections

If you employ H-1B nonimmigrants you should note the U.S. Citizenship and Immigration Services (USCIS) is conducting thousands of random on-site inspections of employers who sponsor H-1B nonimmigrant employees. Several sources indicate USCIS intends to conduct upwards of 20,000 site visits in 28 cities. The purpose behind the visits is to verify information submitted in the nonimmigrant petitions by the employers. Specifically, USCIS is confirming the employer is paying the prevailing wage and the employee is employed in the position identified in the petition.

What do these inspections mean for employers of H-1B nonimmigrants? First, ensure you fully comply with the H-1B visa requirements, i.e. paying the prevailing wage. Second, properly maintain a Public Inspection file for each H-1B petition you filed. Included in this file should be a copy of the petition and any supporting documentation provided, a copy of the certified Labor Condition Application, proof of the prevailing wage determination, copies of all required posted notifications, and documentation evidencing compensation paid to the H-1B nonimmigrant employee. As many of these inspections are being conducted by contracted workers it is impossible to know the exact information an individual inspector will request. Maintaining a file with the documents identified above, however, should make any inspection less painful. In addition, you should contact your immigration lawyer if USICS contacts you or arrives at your site for an inspection. Your immigration lawyer likely has more knowledge regarding the information provided in the petition.