How Do You Handle Employees in the Workplace?

May 10, 2012Articles

An employer can take several steps to effectively prevent and handle unlawful activity in the workplace. The first step an employer should take is ensure that it has a well-defined, carefully monitored, disciplinary policies and procedures. For a policy to be effective, the employer should ensure that all employees receive a copy of the policy and understand it. Further, employers should implement these policies and procedures before unlawful activity occurs by offering training courses for its managers, supervisors and employees. This article provides a summary of the steps an employer can and should take to prevent and cease unlawful activity in the workplace before and after it occurs.

1. An Effective and Easily Understood Employee Handbook

The first step an employer must take to prevent and correct unlawful activity in the workplace is to have well-defined and carefully monitored disciplinary policies and procedures. What kind of conduct do you expect from your employees? What kind of behavior is appropriate? How do you define sub-par performance on the job? These are important things to spell out in disciplinary policies and procedures. From there, an employer must follow those policies.

There are four important steps to this process:

(1) Train supervisors/managers and all other employees responsible for administering discipline regarding their adherence to disciplinary policies and procedures.

(2) Ensure that all policies and procedures are clearly communicated to employees and document their understanding of such. This can be done through training sessions where attendance is recorded, or even better, through signed acknowledgments demonstrating receipt and understanding of a given policy. Some employers even use computer-based training in which employees receive "grades" based on their understanding of a given policy or procedure.

(3) Apply these policies and procedures consistently. Close the door on any disparate treatment claim.

(4) Supervisors and Managers must properly document all employee misconduct or poor performance.

Supervisors will often not document—and employees will not report—inappropriate conduct because they do not believe that their organization will care that the behavior is occurring. If an employer clearly articulating its policies with examples of inappropriate behavior, it will help employees understand what behavior and events they should bring to the organization’s attention.

To ensure that employees know the importance of reporting employees, follow these steps:

(1) Where possible, have employees acknowledge in writing their receipt of policies and training. Include this documentation in employee personnel files.

(2) Do not just post policies – provide periodic reminders to the workforce and of what they mean. Further, make sure employees understand the policies, as it is not enough just to have a policy in place.

(3) Disseminate to every employee.

(4) Be able to demonstrate that the rule was communicated to the employee.

An Employee Handbook should contain the following important provisions:

  • Anti-discrimination/anti-harassment policy - provide a complete description of what conduct is prohibited 
  • Reporting/complaint procedure - Make sure that the burden is placed on the employee to report any discriminatory or harassing behavior 
  • Corrective Action - Describe what steps the employer will take to remedy the alleged discriminatory or harassing behavior 
  • Disciplinary Procedures - provide a listing of what rules, if violated, will lead to discipline, suspension, and/or discharge. Describe the progressive discipline that will be utilized.

2. Value of Training on Sexual Harassment Cases

In Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the United States Supreme Court established new standards for employer liability in supervisory sexual harassment cases (though this affirmative defense has not been specifically recognized in West Virginia). Specifically, the cases created a two-part affirmative defense for employers; an employer will not be liable for a supervisor’s sexual harassment that does not result in a tangible employment action if: (a) the employer exercised “reasonable care” to prevent and promptly correct any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 

    a. Proper Dissemination

A federal court found that the following steps taken by an employer to disseminate its harassment policy widely were sufficient to avoid liability. In Shaw v. Auto Zone, 180 F.3d 806 (7th Cir. 1999), cert. denied, 528 U.S. 1076 (2000), the plaintiff testified that she had never seen an anti-harassment policy, but the evidence showed that she had received a copy of the policy and had been instructed to read and comply with it. The plaintiff also signed an acknowledgment form stating that she would read and learn the policy. Accordingly, the Seventh Circuit ruled that the plaintiff had at least constructive knowledge of the policy and, therefore, had unreasonably failed to take advantage of a preventive or corrective opportunity. The court found that the employer had met its duty of reasonable care by properly distributing the policy, as well as by offering multiple mechanisms for prompt resolution of complaints and training sessions on sexual harassment. 

    b. Improper Dissemination

In Miller v. Kenworth Dothan, Inc., 82 F.Supp.2d 1299 (M.D.Ala. 2000), a U.S. District Court concluded that a workplace harassment policy was not effective where they did not include a section on race discrimination or other forms of illegal behavior, where the employer had failed to distribute it uniformly to all employees, or to post it in the workplace, and where several management employees, including the company president, had not even read it. Accordingly, the employer had not exercised reasonable care in preventing sexually harassing behavior and could not use the Ellerth and Faragher affirmative defense.

3. Conduct a Thorough Investigation

When an employee does report a claim of harassment or discrimination, the employer should conduct a thorough investigation. The same individuals should conduct all aspects of a sexual harassment investigation. It is best for the employer to compose a mixed-gender investigation team to conduct all harassment or discrimination claims in the workplace.

During the reporting of the harassment or discrimination, the investigator should have the alleged victim identify the alleged harasser and obtain as many details as possible about the conduct that occurred, including dates, frequency and witnesses. The investigator should take detailed notes, especially because the complainant is not always willing to put their complaint in writing. The investigator should also ask the victim what he or she would like the company to do. The employer should move forward with the investigation, even if the victim says that they do not want the harasser to be disciplined.

It is important for the company to take all complaints seriously. No representative of the company should joke about or minimize the conduct in any way. The investigator should not side with one side or the other. He or she should also assure the victim or reporter that no retaliation will occur for making a complaint of sexual harassment.

The employer should also attempt to separate the accused and the harasser during the investigation. If the alleged conduct is severe, the employer should suspend the accused, with or without pay, pending the investigation.

The employer should next interview the accused to obtain his or her version of the events and inform them that he or she may not retaliate. If there are any witnesses, the investigator should interview those persons. The employer should attempt to keep the identity of the alleged victim confidential. The investigator should inform the witness(es) that no retaliation will occur for reporting the conduct. The employer should also ask the witness(es) to keep the investigation and the matter confidential. After the investigation, the employer must decide what actually occurred and decide how to handle the harasser or victim from that point forward.

4. Taking Action 

    a. If the Employer Believes that the Harassment Occurred

If the employer determines that the sexual harassment has occurred, the employer must act to end the harassment and prevent recurrence. The severity of the discipline will vary based on the conduct that occurred. The employer should consider in deciding on the discipline: (1) the deterrent effect on co-workers; (2) the wishes of the victim(s); and (3) whether the discipline is consistent with the way the employer has handled similar situations in the past.

At a minimum, the employer should review the policy with the offender and warn him or her that future unlawful conduct could result in discipline, up to and including termination. The employer should make clear that retaliation is impermissible and should inform the victim that he or she should report any type of retaliation. The employer should also attempt to separate the victim and the accused. It is important, however, for the employer to use caution in transferring the victim because the victim or a court could see demotion or transfer as retaliation. 

    b. If No Harassment Occurred or the Story is Unclear

If the employer determines that the harassment or discrimination did not occur or is unable to determine what actually happened, the employer must still take several steps. First, the employer should review the policy with the accused and the victim. Second, the employer should explain the findings to each party. Third, the employer should remind the accused that it will not tolerate retaliation and instruct him or her to report any future harassment or discrimination.

The employer should avoid disciplining the victim or reporter, even if the employer believes that the accusation was false. Discipline is only appropriate when there is evidence demonstrating that the complainant has a history of false accusations or that the complainant knew that the accusations were false. Otherwise, it is best to avoid disciplining the complainant because this could be seen as retaliation for reporting the harassment or discrimination.