Harassment Responses and Discipline

Harassment Responses and Discipline

Do you know what your obligations are to take disciplinary action if your harassment policy has been violated? Or, in situations where it is not clear that harassment actually took place, do you know how to prevent future harassment?
How you respond often will be the determining factor in either preventing or provoking discrimination claims. A weak reaction is no defense and may increase your legal exposure. Alternatively, you don't want to be too heavy-handed. A reflexive or too harsh response, such as an automatic suspension or termination without regard to the severity of the conduct, may needlessly provoke a legal claim by the alleged harasser. Fortunately, however, there are several simple steps you can follow to help determine the appropriate discipline.
Duty to Prevent Harassment
Your duty both to prevent workplace harassment and to take swift action to remedy it is well established. Title VII of the Civil Rights Act prohibits harassment or a work environment that is abusive to employees because of their race, gender, color, religion, or national origin. In addition, the Americans with Disabilities Act has been interpreted to prohibit harassment based on an individual's disability.
Although the most common harassment claims involve allegations of sexual harassment, the same legal analysis applies when the offensive behavior is aimed at any legally protected class. Most states also have laws forbidding workplace harassment, as do many cities and other local governmental authorities.


When Your Harassment Policy Has Been Violated

Of course, discipline is generally one of the last steps in any harassment procedure. It should follow only after you have conducted a thorough and prompt investigation, interviewed all involved parties, and carefully weighed the evidence. If you conclude that your harassment policy has been violated, disciplinary action is then the next step.
As a general rule, your disciplinary measures should take into consideration the nature and seriousness of the harassment and should also reflect whether it is the first violation of the policy, or part of a broader pattern of harassment. In addition, you should follow your organization's standard disciplinary guidelines and make sure your action properly matches any similar past precedents.

Courts and the Equal Employment Opportunity Commission (EEOC) generally agree that in order to escape liability under Title VII employers must take appropriate remedial action that is "reasonably calculated" to stop the harassment and prevent any future occurrences.
In addition, the disciplinary measures should also be appropriate to the seriousness of the offense. Of course, for any discipline short of termination, the harasser should be warned that further incidents will not be tolerated and will result in additional action.
No Violation of the Policy

If you investigate a complaint of harassment and determine that your policy was not violated, you should not take any action against the accused harasser or retaliate against the complaining employee. You should, however, explain in appropriate detail to the complaining employee why the evidence did not support the claim.

You also need to be prepared for the complaining employee's dissatisfaction with your decision.
As a safety valve, most employers invite the employee to submit any further evidence and assure her that it will be investigated. In addition, you should remind the employee that she may appeal the decision using your normal complaint resolution procedure. Any empathy you show for the complaining employee's concerns will help neutralize the type of emotional reaction that often leads to a claim with the EEOC or to a lawsuit.

Six Actions to Improve Your HR Performance

You still have time to make significant changes in your work environment by identifying old barriers to success and replacing them with new, more effective behaviors. The six suggestions on the "To Do" list that follows are based on common sense and are relatively easy to implement, plus when executed properly, they can have a strong impact on your effectiveness.

On the one hand, they are designed to limit corporate liability and, on the other, to build morale and improve overall employee relations. Either way, you are taking action to set a positive tone while improving professional standards.

1. Make sure employees get feedback on a regular basis.

Once-a-year evaluations are not enough. Employees should receive regular input from their supervisors. These discussions should typically focus on day-to-day performance objectives rather than on past mistakes or failures. This approach requires supervisors to observe and evaluate their employees regularly and to work closely with targeted individuals, as needed. In addition, make sure your managers give positive feedback for a job well done.

2. Terminate poorly performing or disruptive employees.

This advice is an obvious companion to the first suggestion. However, many managers are unwilling to terminate an employee even when the action is justified. The most common reason is the fear of being sued, but others include organizational inertia, fear of confrontation, and concern for the employee's economic well being. However, if you allow a poorly performing or disruptive employee to continue working, productivity and efficiency will suffer and discontent will spread. You can help limit the possibility of legal claims and make yourself more comfortable with the decision by following your normal disciplinary process before you terminate. For most employers this includes:

-- Giving notice to the employee of the specific performance problems
and the consequences of not improving;
-- Establishing goals for improvement;
-- Setting a reasonable timeframe for meeting the goals (normally two
weeks to 30 days);
-- Following up to see if there is improvement; and
-- Terminating the employee if the goals have not been met.

3. Pay overtime, even when you do not think it was properly authorized.

One of the surest ways to provoke a wage and hour claim is * not * to pay employees properly for overtime they have worked. According to Department of Labor (DOL) regulations, if you are aware that an employee is working more time than is scheduled, you must compensate the employee, even if you did not specifically request the additional work.

For example, if your policy requiring prior authorization for overtime work was not followed but a manager was aware the employee performed the work, you should pay for the overtime. You may, however, discipline the employee (and manager) under your normal disciplinary procedures for violating your work rule prohibiting unauthorized overtime.

4. Treat your exempt employees properly as exempt.

Most employers expect their exempt employees (those exempt from the overtime provisions of the Fair Labor Standards Act (FLSA)) to work as long as it takes "to get the job done." Yet, some of these same employers also penalize their exempts by requiring them to use hours of paid vacation or sick time when they leave early to take care of personal business. This practice can backfire in two ways.

First, it may jeopardize the employees' actual exempt status. The FLSA prohibits employers from docking the pay of exempt employees for absences of less than a day. The DOL does permit vacation or sick leave offsets since the employee does not experience a reduction in compensation. However, a few courts have disagreed.

The dissenting courts have determined that this practice, in fact, treats the exempt employee like an hourly, nonexempt employee and, therefore, triggers loss of the exempt status. As a result, you may be put in the position of having to pay overtime to the employee, and others similarly situated, if they lose their exemption because of your pay practice. (Note that there are special rules for exempt public employees allowing them to be considered exempt even if their pay is reduced for partial-day absences.)

Second, and perhaps just as importantly, the offset policy creates poor employee relations. Exempt employees will resent being required to use paid leave for partial-day absences, particularly if they regularly work more than 40 hours per week. If your concern is that your exempt employees may abuse their status by leaving early or coming in late,address those issues as a separate matter. For example, discipline exempt employees who do not complete their work or are not available when needed. In other words, do not penalize all your exempt employees just because of the possible abuses of a few.

5. Make sure you designate leave appropriately under the FMLA.

The single biggest compliance mistake most employers make under the Family and Medical Leave Act (FMLA) is their failure to notify an employee that a leave is specifically covered by the FMLA. When this failure occurs, you cannot count the time off against the employee's 12-week FMLA allotment until proper notification is given. As a result, the employee still enjoys the protections of the law, including continuation of health care coverage and reinstatement, but does not draw down the 12 weeks of protected FMLA leave until notice is given.

To prevent this problem, every time an employee requests a leave (such as for workers' compensation, short-term disability, or pregnancy), you should immediately determine whether the employee's need for leave is covered by the FMLA and then whether the employee is eligible for FMLA leave. If the leave qualifies, you should give the employee written notice that it will be counted against the FMLA's 12-week entitlement.

6. Review your HR policies and procedures.

Clearly written policies that are regularly reviewed can be both an effective employee relations tool and a good defense against employee lawsuits. In contrast, policies that are out-of-date or improperly applied can have exactly the opposite effect. So, make sure that your policies reflect any new laws, regulations, and court cases that can affect both policy language and how you implement the policies. Most experts suggest both a thorough review at least once a year and the use of a notification service or publication to keep you posted during the interim. Of course, if you revise any of your policies, you should distribute and thoroughly explain the changes to all employees.

* Ensure Success – Don't Get Overwhelmed *

Many successful executives will tell you that the best route to achievement is commitment followed by action. In this case, think in terms of "must" and "will" rather than "should" when you address the six HR items suggested above.

Another way to ensure success is to break up these six priorities into groups and tackle them three at a time. Studies have shown, particularly in the military, that personal effectiveness diminishes dramatically as you take on more than three priorities at once. So, plan your HR priorities accordingly and take steps to implement these positive actions so that you can enjoy the benefits of better HR management.