Preventing Sexual Harassment: A Business Guide

You can go a long way toward avoiding a potentially ruinous sexual harassment charge in your company by following these five steps:

  1. Establish a written policy that clarifies your position to everyone on staff. It also will provide solid proof to judges that you’re committed to eliminating and preventing sexual harassment. Make sure the language is clear, emphatic and easy to understand. What should be included? A broad definition of the type of conduct that constitutes sexual harassment, a statement requiring employees to report offensive conduct, procedures for reporting a complaint, discipline procedures and a pledge that there will be no retaliation against whistle-blowers. What should not be included? Guarantees of confidentiality, strict limits on what constitutes harassment and promises to resolve complaints to the victim’s satisfaction.
  2. Promote your policy. It’s not enough to have a policy on file. In order for your company to avoid liability, your employees must know that your policy exists and understand the grievance procedures. Hold in-house meetings to communicate your policy. Many experts also advise you to have employees sign a statement saying they’ve read, understood and intend to comply with the policy. Keep the training ongoing so that your staff—especially new hires—will be aware of the guidelines.
  3. Set up a complaint procedure. Provide the names and telephone numbers of at least two contact people to whom workers can report misconduct. (If you have only one contact, it would be difficult for someone harassed by that person to file a complaint.) Set a time frame to process and resolve complaints, and decide how appeals will be handled.
  4. Enforce your policy consistently. One of the most common traps for employers is to enforce their policy differently depending on the parties involved. You can avoid a lawsuit by basing your discipline on the seriousness of the offense, without regard to rank or seniority. Make sure you have any necessary documentation to back up disciplinary action.
  5. Investigate complaints ASAP. Take every complaint seriously and investigate it promptly. Develop a method to interview the accused, the accuser and potential witnesses. Your first goal should be to resolve the grievance internally, without judicial or EEOC interference. The best way to do that is to have an effective complaint procedure.




Sample Sexual Harassment policy

You may use the model policy below or adapt it for your organization. The statement should appear on company letterhead, signed by the CEO or another high-level executive.


Sexual Harassment Policy

[Name of company] is pledged to preserving a working environment free from sexual harassment. Harassment is against the law and is a form of gender discrimination. [Name of company] does not tolerate discrimination on the basis of gender, pregnancy, sexual orientation, race, religion, age, national origin, citizenship, veteran status, disability or any other personal characteristic unrelated to an employee’s ability to perform work requirements. The aim of this policy is to prevent harassment of any kind by anyone employed by or associated with the company.

Sexual harassment consists of unwelcome sexual advances, requests for sexual favors or unwanted sexual attention by anyone associated with the company, whether male or female. Harassment may include references to employment status or conditions, or may serve to create a hostile, intimidating or uncomfortable work environment. Harassment includes, but is not limited to, obscene jokes, lewd comments, sexual depictions, repeated requests for dates, touching, staring or other sexual conduct committed either on or off company premises.

Victims of sexual harassment have the right to sue both the company and the perpetrator by contacting the Equal Employment Opportunity Commission or a state agency. For this reason and for the protection of all our employees, [name of company] seeks to prevent sexual harassment.

All [name of company] employees are responsible for helping ensure that our workplace is kept free of sexual harassment. If you feel you have been a victim of sexual harassment, report the behavior to our Sexual Harassment Coordinators [name, location, phone number] or to any supervisor, member of the personnel department or the company president. If you have witnessed sexual harassment, you also are urged to report the incident so that prompt action may be taken.

All complaints will be treated seriously, kept as confidential as possible and investigated fully. [Name of company] expressly forbids any retaliation against employees for reporting sexual harassment. If, however, the company finds that false charges have been filed, disciplinary action may be taken against any individual who provides false information.

If an investigation confirms that sexual harassment has occurred, immediate action will be taken to put an end to the harassment. [Name of company] will take appropriate corrective actions against anyone found to be in violation of this policy, including possible termination of employment.



Adapted from a book, Sexual Harassment: A Concise, Practical Reference Tool for Small Business (publication N265A), published by the National Institute of Business Management. To order, call (800) 543-2051.

Boss Gives the ‘Cold Shoulder:’ Merely a Dis … or is it Discrimination?

Does it seem like courts keep telling us we have to monitor all juvenile behavior in the workplace? Do we need to hire “conduct cops” for our hallways? A court ruling last week smacked some sense into the laws and said “no” — not all bad-boss behavior is automatically “discrimination.” Is this an early holiday gift to employers?

Case in Point: Josalynn Brown and Carolyn Wilson, who are both black, worked as nurses at a suburban Chicago hospital. They joined 10 other nurses in complaining to HR that Filipino nurses were receiving better assignments and training than black nurses. Hospital officials investigated, but couldn’t corroborate the claims.

Eventually, Brown and Wilson requested and were granted a transfer to another hospital owned by the parent company. But the complaints didn’t stop. Brown and Wilson voiced several protests to HR, including that their new supervisors were giving them the “cold shoulder” treatment and had engaged in mild name-calling, referring to one of the nurses as a “cry baby” and a “spoiled child.”

Brown and Wilson again asked to be switched to another location. This time, the request was denied. They sued the hospital for race discrimination and retaliation.


The verdict: Title VII of the federal Civil Rights Act makes it unlawful to discriminate against employees based on their race with respect to their “compensation, terms, conditions or privileges of employment.” But receiving the “cold shoulder” from a boss and mild name-calling does not rise to the level of actionable discrimination, the court said.

“The fact that someone disagrees with you (or declines to take your advice) does not, without more, suggest that they discriminated against you,” the court ruled. “Title VII protects against discrimination, not ‘personal animosity or juvenile behavior.’ Personality conflicts at work that generate antipathy and ‘snubbing by supervisors and co-workers’ are not actionable under Title VII.” (Brown v. Advocate S. Suburban Hosp., 7th Cir., 11/21/12)

3 Lessons Learned … Without Going to Court

  1. Investigate immediately. The court noted that the hospital responded to the nurses’ race and retaliation discrimination complaints right away with an investigation. HR tried to connect the dots to see if the new supervisor’s conduct was motivated by the nurses’ previous discrimination complaints. However, the supervisors had no knowledge of the nurses’ previous complaints at the prior location, so no racial motivation could be shown.
  2. Prohibit name-calling as a whole.Even though all name-calling behavior may not be illegal (the court noted the name-calling in this case made no references to race), it may create an unpleasant culture to work in. Even though the court said Title VII doesn’t protect “personal animosity or juvenile behavior,” name-calling can still cost big bucks to defend.
  3. Make your harassment, discrimination and retaliation prevention policy stricter than the law.The prohibited conduct listed in your Harassment, Discrimination and Retaliation Prevention Policy should be stricter than what the law will allow in order to curtail these kinds of lawsuits. That being said, remember to include language like, “A violation of this policy does not necessarily amount to a violation of the law.” This will go far in showing that just because your culture will not tolerate certain behaviors it does not make engaging in them illegal in the eyes of the law.

Are You Liable for Harassment by Independent Contractors?

Are You Liable for Harassment by Independent Contractors?

Don’t you have enough to worry about with employees sexually harassing each other? But wait. There’s more. As a new ruling shows, employers can also be held liable for the behavior of third-party independent contractors in the workplace—even though they are NOT employees. Now, do we need an extra set of eyes and ears? Yes, indeedy it seems we do!

Case in Point: Hospital employee Odalys Rosa Santos claimed she was harassed by two doctors who were working as independent contractors at the hospital. Santos alleged that an orthopedic surgeon often propositioned her for sex and would spank her in passing. The other physician, an anesthesiologist, allegedly made offensive sexual remarks to Santos on a number of occasions and touched her inappropriately.

Santos complained about the contractors’ behavior to the hospital’s personnel director. Soon after, Santos alleged that high-ranking hospital workers stopped talking to her after she made the complaints. In addition, the hospital changed her work schedule, refused to allow her lunch breaks and assigned her duties outside of her job description. Santos eventually resigned.

She sued both doctors and the hospital, asserting a hostile work environment, sexual harassment and retaliation under Title VII. The hospital argued that it could not be held liable for the alleged harassment because the doctors were independent contractors, not employees.

While a lower court dismissed the claims, an appeals court sided with Santos and sent the case to trial. The court said an employer “may indeed be liable for a non-employee’s acts of harassment under Title VII if it knows or should have known of the conduct and fails to take immediate and appropriate action.” (Santos v. Puerto Rico Children’s Hosp., D.P.R., 9/28/12)

The hospital also could not avoid liability based on the Faragher/Ellerth doctrine by arguing Santos failed to use the hospital’s complaint procedure. The court ruled the defense applies only to harassment committed by an employee’s supervisor and does not extend to that by a third party, even if the harasser has a certain amount of control over the employee’s work.

Even if, as the employer claimed, Santos’ verbal complaint was not in accordance with the hospital’s written procedure for reporting harassment, it was enough to establish the hospital’s knowledge of the situation. The court warned, “It is not true that an employee only acts reasonably if the employee follows the employer’s formal procedure, and … the employer is entitled to ignore any notice of harassment that is outside of the procedure.”

3 Lessons Learned … Without Going to Court

1. Keep your eyes open. Keep a vigilant watch of who is working on your premises, including nonemployees. Make sure they get a copy of your organization’s harassment, discrimination and retaliation policies before stepping foot into your workplace. Consider sending the policy out along with the signed contract. These are the “house rules” and now everybody needs to know about them, including independent contractors.

2. Keep your ears open. “Notice” is “notice,” even if it wasn’t correctly reported up through the designated channels. Once an employer is on notice, it must take immediate action to stop the misconduct. It’s not a legal defense to claim the employee didn’t tell you the “right way.”

3. Keep your wallet open. If you don’t follow numbers 1 & 2 above, be ready to pass out the cash, even over contractors.


The Most Wonderful Time Of the Year

By Jonathan A. Segal

Festive holiday gatherings won’t bring much holiday cheer if they don’t take into account several important legal considerations.

For many of us, the most wonderful time of the year is right now. The holidays can be a wonderful time of religious, cultural and seasonal celebrations with family, friends and business colleagues.

For plaintiffs’ lawyers, the most wonderful time of the year is the winter months that follow. Sad but true, the confluence of religious expression, social interaction and alcoholic consumption can result in litigation.

Here are some general guidelines on how to enjoy your holiday season without giving plaintiffs’ lawyers an expensive post-holiday gift.


Many organizations have some sort of a seasonal celebration. One of the most common concerns is whether to serve alcohol. The legal issue is whether employers are liable if employees subsequently drive under the influence, causing an accident that injures themselves or others.

The law on this issue varies from state to state. However, some general guidelines can be gleaned from court cases.

The greatest exposure to employers is if they serve minors. If minors drive under the influence of alcohol served to them by employers, there is a substantial likelihood of employer “social host” liability if those minors are involved in accidents.

The result is less clear if the employee is an adult. In some states, “social host” liability is restricted to the service of alcohol to minors. However, even in those states in which social host liability generally is restricted to minors, the case law often leaves open the possibility that employers potentially may be held liable.

Moreover, even if and/or where there is no potential for legal liability with regard to adults, there are moral considerations. It would be hard to sleep at night if you knew that a serious or fatal accident involving one of your employees might have been avoided had reasonable steps been taken to limit the consumption of alcohol.

Obviously, the safest approach, from a legal perspective, is to supply no alcohol. However, this may not be practical or desirable. ·

Where alcohol is provided, the following guidelines should help to minimize the employer’s risk:

  • Make clear in pre-party communications that minors cannot drink and that if minors do drink, they may be terminated. Ask those who dispense the alcohol to keep an eye out for those who look too young to drink and to card individuals if they have any doubt.
  • Make clear in pre-party communications that employees must limit their consumption so as to avoid being under the influence. Also make it clear that you don’t expect anyone to drive who is under the influence.
  • Have someone serve alcohol, rather than permitting employees to serve themselves. This not only gives the servers (the number of which should be limited) the opportunity to flag employees who drink too much, but it also may deter employees from pouring too many drinks in the first instance.
  • Consider establishing a maximum number of drinks that individuals can have. Tickets won’t work because individuals can give away their tickets. Consider a fluorescent stamp on an employee’s hand in exchange for a drink, limiting the number of stamps an employee can receive.
  • Make cab vouchers available that employees can obtain without going to a manager. While a few employees may abuse the privilege, it’s a small risk to take compared to the bigger risk it may help to avoid.
  • Ask certain managers to keep their eyes and ears open for individuals who are visibly intoxicated. Intoxicated individuals should be asked for their car keys. If they refuse, consider calling the police. If you warn employees in advance that this is the course of action you will take, you strengthen your legal position by demonstrating your diligence.
  • Serve plenty of non-alcoholic beverages and lots of food.


As we all know, holiday gifts can get expensive. An employee’s gift can become expensive for the employer as well if it is not appropriate for the workplace. There always will be a few individuals who will want to give sexual, suggestive or otherwise inappropriate gifts (e.g., a Victoria’s Secret negligee).

For this reason, it is in an employer’s best interest to remind employees that any gifts they give to co-workers should be appropriate to the workplace. Employees should be told to avoid offering gifts that are sexual, suggestive or otherwise inappropriate.

While this admonition is generally recommended, it is particularly important if the employer organizes a Pollyanna in which employees give and receive only one gift. Where the employer takes control of the gift-giving process, the need for guidelines is even greater.

Also remind employees of the importance of not engaging in inappropriate behavior at company functions. While the holiday party can and should be fun, employees still need to remember that they are with co-workers. The fact that a holiday party may be off site and may take place outside of normal working hours does not give employees the license to engage in licentious or other inappropriate behavior. Keep your eyes and ears open for such behaviors and take corrective action immediately if and when you see them.

Invitations to the Holiday Party

Many employers hire temporary and leased employees. Should these individuals be invited to a holiday party?

If you don’t invite them, they may feel like second-class citizens. If you do invite them, these individuals could use the invitation to argue that they are regular employees.

This conflict can be avoided in terms of how temporary and leased employees are invited. Address the invitations to company employees and other guests, making clear that temporary and leased employees are among the guests whom you are inviting.

If you are inviting spouses, you may wish to broaden the invitation to include “significant others.” Many employees in committed relationships may feel excluded if the invitation is limited to spouses.

While all employees should be encouraged to attend, supervisors and managers should be counseled not to push employees who decline the employer’s invitation. There may be a number of personal (“protected”) reasons why an employee may choose not to attend. For example:

  • The employee may be in recovery from alcohol addiction and, as such, may be uncomfortable in the presence of alcohol.
  • The employee may be a Jehovah’s witness and, as such, will not celebrate holidays. ·
  • The employee may be gay or lesbian and may not feel comfortable bringing his or her same-sex partner.


A question that sometimes arises is whether employers must pay employees for the time spent attending a company holiday party.

If the party is during the employee’s regular working hours, the employer has to pay the employee for the time attending. Employee relations considerations also support making payment.

If the party is outside of an employee’s regular working hours, the employer probably does not have to pay the employee-if attendance is truly voluntarily.

If the employer requires that employees attend, the employer must pay. But, even if the employer does not specifically require that employees attend, they may feel pressured by virtue of the fact that the invitation comes from management. (Do you feel any pressure when your boss, or biggest customer/client, invites you to a function?)

To counter an employee’s perception that attendance was mandatory, make clear in a gentle way that all are encouraged to attend, but attendance is not required. In the unlikely but possible demand for payment, this communication will come in handy.

Holiday Decorations

Many employees decorate their offices or work areas with holiday decorations. But what if someone is uncomfortable with or offended by such decorations?

In the context of sexual harassment, we all know that if sexual expression reasonably could offend someone, it should not occur. Is the same true of religious expression?

For purposes of this discussion, workplace speech and other expressions can be divided into three general categories. As explained below, sexual and religious expression fall within different categories and, therefore, must be treated differently.

The first category is speech or other expression that is proscribed by federal or state law. Because sexual harassment violates federal and most state laws, sexual speech generally would fall within this category.

Also falling within this category would be speech that disparages, stereotypes or otherwise denigrates a protected group (e.g., racial jokes and ethnic slurs). Where speech is proscribed by a federal or state law, employers have an affirmative responsibility to prohibit/stop it.

The second category is speech or expression that is protected under federal or state law. This would include, for example, complaints about discrimination or harassment or expressions of the desire for a union. Where speech is protected, an employer generally cannot prohibit such speech or other expression or punish an employee for engaging in it.

The third category is speech or other expression that is not proscribed by a federal or state law, but that also is not protected by a federal or state law. This would include, for example, jokes about lawyers. Where speech is neither condemned nor protected by law, an employer can prohibit it, but is under no legal obligation to do so.

Religious expression generally falls within the second category, i.e., protected speech. More specifically, federal and state laws generally prohibit discrimination on account of religious beliefs, observances or practices. This prohibition on discrimination ordinarily precludes an employer from treating speech and other expressions related to such religious beliefs, observances or practices more harshly than non-religious speech (or from treating similar types of religious expression differently because they relate to different religions).

Accordingly, if an employer generally allows employees to decorate their offices with pictures and other ornaments, it probably would be discriminatory to say that these decorations cannot relate to a religious holiday. Similarly, an employer could not allow an employee to decorate for Christmas but not for Kwanza.

Of course, the right of employees to engage in religious expression is not absolute. Like all forms of protected workplace expression, employers generally may impose reasonable restrictions relating to the size, place and manner of such expression.

But an employer would be on the wrong side of the law (and employee relations) to prohibit religious expression altogether. This most probably would extend to religious decorations.

In this regard, it is important to distinguish between the employee’s decorations and the employer’s decorations. For both legal and employee relations reasons, employers do not want to be perceived as endorsing or supporting religion generally, or one religion over another.

As a result, employers may wish to acknowledge the holidays generally as opposed to only one (Christmas) or two (Christmas and Hanukkah) holidays in particular. Remember, diversity relates not only to race and ethnicity but also to religion.

The foregoing recommendation applies not only to the employer’s decorations but also to the nomenclature for the seasonal party. It is better to refer to the seasonal party as a holiday party as opposed to a Christmas party.

In this regard, it should be noted that some individuals celebrate core holidays at different times of the year or generally do not celebrate holidays at all. While this does not mean that employers should not celebrate the holiday season, employers may wish to acknowledge those who don’t when extending their good wishes, as I will now try to do:

To those of you who celebrate a holiday now, peace, health and happiness to you and yours.

To those of you who do not celebrate holidays or a holiday now, peace, health and happiness to you and yours as well.

Author’s note: This article should not be construed as legal advice or as pertaining to specific factual situations.

© 2002 HR Comply, Inc.

All rights reserved


Don’t get blindsided when an employee comes forward with a complaint.


After a very busy week, you finally have a couple of hours to get to that big stack of “to do” items. Right as you begin to dig in, an employee enters your office and asks if you have a few minutes to discuss a matter concerning a group of coworkers that has made her very upset. You desperately want to tell the employee to come back tomorrow. What should you do?


Ask the employee to come in and conduct an initial fact-finding meeting. And, no matter how busy your are, or what kind of mood you’re in, do not let your “go away instinct” be known, warned attorney Lisa Lavelle, of Patton Boggs, LLP.


The initial meeting with an employee who brings a complaint is a critical stage of the investigatory process, explained Lavelle, who along with attorney Doug Mishkin advised HR professionals on how to effectively handle workplace investigations.


 Three goals of the initial meeting


Even the first few seconds of the initial meeting are crucial as they set the tone for the entire investigation, advised Lavelle. Therefore, when an employee comes to you with a complaint, you must be prepared to respond appropriately. To do so, you must understand these three goals of the initial meeting:


Instill confidence. The first interaction with the employee is the time to instill confidence in your ability and that of the company, to address the employee’s concerns, advised Lavelle. Therefore, before questioning the employee, confirm that he or she feels comfortable that you can reach an impartial resolution. Ask, “is there any reason why you feel I cannot be fair and objective?”


Be ready to respond if the employee expresses doubt over your ability to be fair. You may decide to assign the investigation to someone else. Or, at the very least, you can explore the employee’s reasons for feeling this way. Starting this dialogue may make the individual feel more comfortable.


Identify all issues. The second goal is to identify the issues raised by the employee’s complaint, stated Lavelle. This will help you determine whether the issues can be resolved informally or if an internal investigation will be necessary.  You must listen carefully, as the real issue will not always be what the person bringing you the complaint says it is. For example, an employee could tell you he has a complaint about his recent performance review, and, in response to your questioning, reveal that he and his manager were in a romantic relationship, that he broke it off, and now the manager gave him the bad review as punishment. The issue initially sounded like a performance review problem but is really a sexual harassment problem.


Gather the evidence. The initial meeting is often when the employee will be most likely to share all the facts, suggested Lavelle. Therefore, the third goal of the initial interview is to find out the facts. Ask the “who, what, where when and why” questions. Use open-ended questions as opposed to yes or no inquiries. And inquire as to whether the employee has any documentation that would be helpful to resolving the issue(s) raised, or if the employee knows of any documentation that you should obtain.


A note on documentation . . .


Gathering documents.

Once an employee has brought a complaint to your attention, all relevant documents should be identified and obtained quickly, advised Lavelle. These documents may provide information that will help verify facts, as well as help identify who should be interviewed and what questions should be asked. Throughout the investigation, repeatedly ask those involved whether or not they have any documentation that would be helpful in the investigation.


Who can view documentation? Access to documents involved in an investigation should be limited exclusively to those who have a legitimate business need to know, according to Lavelle. For example: information that is necessary for decision-makers to make a decision;  information that is necessary for people to conduct the investigation or to take action as a result of the investigation; and information that needs to be shared during the investigation in order to obtain more information.


Employee documentation

When an employee raises an issue meriting investigation, you should encourage the employee to provide a summary of the issue(s) in writing. But never force the employee to do so, warned Lavelle, as such a requirement is intimidating and may discourage employees from coming forward with complaints in the future.


If the employee agrees to provide a written summary, ask that it include:


  • a list of all the employees’ issues/concerns/complaints.
  • the relevant facts and dates the employee believes support his or her concerns.
  • the names of people the employee thinks may have information relevant to the investigation.
  • and suggestions for obtaining relevant documentation (such as memos, performance reviews, etc.).


Employer documentation.

Lavelle also suggested providing a memo or letter to the employee summarizing the issues raised. This document will provide both the person responsible for handling the investigation and the employee raising the issue with an opportunity to make sure that all of the issues are clearly understood before starting the investigation.


The confirmation memo should:


  • identify the issue(s);
  • identify the facts provided by employee to support issue(s);
  • confirm these are all issues raised.
  • identify the person investigating the matter and confirm his or her impartiality and fairness.
  • identify a roadmap for investigation; and outline the company’s expectations for the employee raising the issue.


The memo should normally be prepared within several business days. Because it will not always be practicable to prepare this document before proceeding with the investigation, it is not a mandatory step.

6 everyday ways managers will land your company in a lawsuit.

Although the managerial mistakes that have created HR headaches and triggered employee lawsuits are countless, there are just a few common managerial moves at the heart of employers’ legal woes.

Take a look at our top 6 list, and the action advice and policy tips you can use to rein in managers and keep your company out of court.

Mistake #1: Terminating Without Tact

While callous treatment during the termination process doesn’t necessarily translate into a valid legal claim, managers who treat their employees poorly are almost begging for an illegal charge to follow. And, unfortunately for employers, juries often side with the underdog employee against the “big, bad corporation,” whether the management decision was legal or not.

ADVICE: Imbue managers with the need to adhere to the spirit as well as the letter of employment laws during the termination process. In other words, review your termination procedures to make sure they are not only grounded in legal steps, but reflect courtesy and fairness to the employee, as well.

Mistake #2: Mishandling Employee Problems

Dealing with common employee problems can be a sticky wicket for managers. Snap responses to everyday issues often get managers into trouble with their employers and employees, and with the law. For this reason, managers must learn how to deal with employee problems productively and confidently in order to prevent the mistakes that can lead to legal skirmishes.

ADVICE: Put it to practice. Train managers on how to legally and effectively manage problem employees. We recommend you begin with the following legal landmines: absenteeism, drugs and insubordination.

Mistake #3: Straying From Policies and Procedures

Just saying it doesn’t make it so. Spelling out company policies and procedures in the company handbook is just the first level of legal protection. The second step involves putting those policies and procedures into practice. Managers who fail to follow the policies and procedures, or who enforce them inconsistently, can land your company in court.

ADVICE: Review your handbook with managers before they go over it with their employees. This gives you time to iron out any discrepancies between the written policies and their actual practices. Just as you do with employees, get signed acknowledgments from managers that they have received, read and understood the handbook.

If you find that a manager has strayed from an established policy, discipline accordingly. The signed acknowledgment prevents managers from using an ignorance excuse.

Mistake #4: Failing to Follow Harassment/Discrimination Policies

Managers are supposed to lead by example. So if they don’t adhere to harassment/discrimination policies, why should employees? Break this vicious monkey-see-monkey-do cycle in which your managers and employees may be caught up, before a court breaks it for you.

ADVICE: Make it career-centric. Reiterate to managers that part of their performance evaluation will be based on how well they uphold and enforce company policies. Complaints of discrimination or harassment on their watch will count against them in terms of raises, bonuses, promotions and job security.

Mistake #5: Creating a Perception of Retaliation

An employee who files a complaint or returns from a leave of absence and shortly thereafter suffers an adverse employment action is likely to smell a retaliation rat. But what’s considered an adverse action? The answer to that question has left courts divided.

ADVICE: Watch out for the following manager actions that often appear retaliatory to employees and courts alike:

  • Lateral transfers are generally not considered an adverse employment action where there is no loss in benefits or decrease in responsibilities. It’s not enough if the employee merely does not like the new position. However, if the transfer can be seen as a demotion, it might be.
  • Low performance ratings.Sudden and uncharacteristic drops look fishy — unless you have legitimate proof that they are justified. Also beware managers holding employees to higher standards or stricter levels of scrutiny than co-workers.
  • New work assignments.A change in work assignments typically will not constitute an adverse employment action if the employee retains his/her same shift, benefits and pay, and the new assignment is consistent with previous job duties. Singling an employee out for grunt work or menial tasks, or giving an employee a heavier workload for no apparent reason, however, could be considered retaliatory.
  • Doling out discipline.Okay: discipline that is deserved. Filing a complaint does not shield employees from the consequences of any subsequent misbehavior. Risky: issuing harsh discipline for minor infractions or disciplining an employee for infractions that others are allowed to get away with.

Mistake #6: Failing to Understand the FMLA

Managers are usually the first to know about employee absences and must make decisions about attendance-related issues. Without proper knowledge of the FMLA, it’s easy for managers to run afoul of the law.

ADVICE: Manager training on FMLA leave should focus on these problem areas:

  • Notice requirements
  • Eligibility requirements
  • Attendance policy
  • Reinstatement requirements

Personnel files: Identifying vulnerable record-keeping practices

Most employees go after records or attack your record-keeping practices when they initiate lawsuits. Most lawsuits in this area center on poor references by managers, the collection of inappropriate records, or the release of sensitive information to an unauthorized person.

Here are 10 steps you should take now to reduce your liability:

  1. Restrict access to employee records to those with a business need-to-know.
  2. Examine your record-keeping practices periodically and communicate them to all employees.
  3. Review each employee’s file annually and remove all dated or inappropriate information.
  4. Provide a preprinted request form to allow employees to set an appointment to examine their records.
  5. Provide a private, quiet room where employees are allowed to examine their records.
  6. Have a knowledgeable person available who can interpret records and help employees correct mistakes or respond to unfavorable charges.
  7. Allow employees to make notes or copies of documents.
  8. Provide a reasonable amount of time for employees to inspect their records.
  9. Provide a change request form so that employees can correct or update personal information.
  10. Set up an in-house grievance procedure to review all employee complaints about information contained in their files.

Managers’ Record-Keeping Missteps

Common mistakes by managers can make their respective companies vulnerable to defamation, slander, and invasion of privacy lawsuits. Take these steps to educate managers immediately.

  • Every manager and employee with access to confidential information must understand the necessity of restricting this data to those with a “need-to-know.” Discipline managers or employees who divulge confidential information about employees.
  • Explain that every comment a manager writes about an employee may someday be read by either the employee or a judge. Managers should write performance and discipline reports with that admonition in mind.
  • Make “secret” files about employee performance or behavior off-limits. If the evidence is substantial, it should be included in legitimate, formal records.
  • Review all performance evaluations or disciplinary warnings that suggest a retaliatory or discriminatory motive.
  • Be careful in selecting employees or managers to purge inappropriate or illegal material from the files. Companies have been found guilty of defamation because information leaked out after purging operations.

Writing A Record-Keeping Policy

You should have a firm, clear policy on how records should be used and maintained, who should have to review the information. Here is sample policy language.



Records Review And Access

The HR department will review each employee’s personnel file annually and eliminate inappropriate or outdated information. Managers and supervisors will review each employee’s file before each performance evaluation and destroy outdated and inappropriate information.

Access to employee records is restricted to the following:

  1. HR department employees with a business need-to-know.
  2. The direct supervisor or departmental manager of an individual employee with a business need-to-know.
  3. Company executives with a business need-to-know.

Employee Access

An employee may examine his/her personnel records once a year. Records exempt from this inspection include potential job assignments or predictions of future salary and personnel planning information. An employee has the right to correct, ask for a deletion, or write a statement of disagreement with any item in the file in the presence of an HR representative. The employee may not, however, remove any item from the file.

Disclosure Of Employee Information

All requests for information about a current, retired, or terminated employee must be referred to HR. The HR manager may disclose to prospective employers dates of employment, final title or position, and job location. With the employee’s written permission, the HR manager may give employment and salary history.

Information will be given to duly authorized requests from law enforcement agencies, including investigations, summonses, subpoenas and judicial orders. The company need not inform an employee that personal information has been disclosed to law enforcement agencies if it concerns an investigation into the employee’s on-the-job conduct, especially when an employee’s actions endanger other employees or company security and property.

Protection Of Confidentiality

Privacy of employee records refers to the collection, use, access, dissemination, retention, and confidentiality of data maintained on employees. The company has a commitment to the privacy of personal information kept in its personnel records. It uses only ethical and lawful means to gather information about or from an applicant or employee.

For every category, you’ll know both the federal statutory requirement and the recommended retention period to help protect yourself in case of a lawsuit. That recommendation carries weight, because it comes from nationally recognized employment-law attorney Jonathan Landesman, the expert behind this Executive Summary.




Records: What Will Be Disclosed

Make a complete list of all records which will be maintained in personnel files. Include a notation as to whether:

  1. The record will be disclosed according to company policy.
  2. The record must be disclosed under state law, e.g., some states have service laws that require employers to furnish references about former employees.
  3. The record will be removed from the file and destroyed when it becomes dated, e.g., disciplinary warnings.
  4. The record is exempt from disclosure requirements, which may include:
    • Letters of reference and third-party recommendations.
    • Plans for promotions and future salary increases.
    • Preemployment tests and those which are used to qualify an employee for promotion. Note: Test scores must be disclosed and employees should be allowed to review incorrect answers.
    • Investigations of employee wrongdoing. Warning: While investigations are usually exempt from disclosure, employees who have been found guilty of wrongdoing should be allowed to examine the evidence against them. All unproven allegations must be kept out of employee files. Employees should also be given an opportunity to challenge the information and place written statements to that effect in their files.

Destination: Circular File

If you collect and store information in any of the following areas, consider deep-sixing it.

  • Employees’ off-the-job behavior.
  • Credit information.
  • Arrest records.
  • Union records.
  • Political affiliations.
  • Club memberships.
  • Notations that employees may have been suspected of misconduct, but the behavior was never substantiated.
  • Comments about the employee’s family.

Except in extreme circumstances, e.g., newspaper articles describing the activities of a convicted felon, all of this information should be purged from the files.

It all comes down to three choices: 1) Don’t think about personnel records and be in denial until a lawsuit hits … 2) cobble together your own system and blindly hope you do it right … or 3) get Personnel Records: What to Keep, What to Toss and act with confidence. You’ll be following recommendations from a respected employment attorney, at a tiny fraction of what such information would normally cost you.

Why Must Policies be Put in Writing?

In small companies or those operating under a relatively close-knit management group, policies are usually “understood.” While they may not exist in writing, managers and supervisors have a good understanding of the company’s stance on basic employment issues.

However, what is “understood” can also be misunderstood.  For example, when the company’s Senior Vice President calls a meeting and launches a tirade about late-arriving employees who trail past his office window every morning, one manager may interpret it as a decided shift in the company’s policy toward tardiness.  She responds with a sudden crackdown on tardiness in her department, docking every non-exempt employee who arrives even five minutes late.

Another manager, present at the same meeting, takes the VP’s outburst with a grain of salt.  The weather has been bad lately, the road leading to the company has been torn up for sewer repairs, necessitating a detour, so naturally people have been having a little trouble getting in on time.  Besides, he’s certain that the VP isn’t directing his comments at his department; there are other departments that have far worse records for tardiness. So he decides to sit tight for awhile and wait for this “storm” to blow over before he does anything drastic.

Situations such as this led to resentment and frustration.  What happens when two non-exempt employees from different departments compare notes on how their supervisors react when they arrive late?  The individual whose pay has been docked will have every reason to be angry.  On a company-wide basis, this can mean lower morale and productivity, more grievances, and understandably poor supervisor/employee relations.

Managers and supervisors who have worked for the same company for a number of years may think they understand their employer’s policies, but all they really have is a sense of how their peers and predecessors have handled similar situations in the past.  Other managers rely on instinct, dealing with each situation as it arises and relying on their own “good” judgment to make the right decisions. Either approach results in inconsistencies, which in turn can result in misunderstandings, grievances, and even lawsuits.  A single manager’s decision—with no written policy to back it up—can set “policy” and influence dozens of similar decisions by other managers and supervisors.

If the original decision was a good one, this may not result immediately in any disastrous consequences. But what if that manager was prejudiced against women or minorities? What if he or she acted illogically, irrationally, or even illegally? The original error in judgment will be repeated many times over by managers and supervisors who think they are acting in accordance with “company” policy.

These few examples of what can happen when policies are not put in writing show that a comprehensive written policy manual is essential in today’s complex, competitive, and regulation-ridden corporate environment. No manager or supervisor can be expected to keep up with all of the latest changes in federal and state laws and the shifting characteristics and expectations of the workforce, as well as top management’s objectives for the company’s long-range growth and development (to name just a few of the many forces that shape company policy on a continuing basis).

A Single Source

There must be a single, up-to-date, authoritative source of guidance and information to which managers and supervisors can turn not only in situations where the “right” course of action is unclear, but also in cases where they are tempted to act on memory or instinct.  With a policy manual to point the way, or to back up what they feel is a justifiable action or decision, company managers and supervisors will be able to act swiftly, decisively, fairly, legally, and consistently.  Employees will then know that they are being protected from personal bias and poor judgment. They will also know when to observe the “speed limits” with regard to their conduct.

Of course, having a policy manual will not solve all of your problems.  Supervisors must not only know what the company’s policies are, but they must also understand the reasons behind them.  Without this understanding, they cannot effectively enforce the policies.

Policy as Framework

The point here is that good written policies do more than help supervisors and managers make difficult decisions.  They provide the framework and background for such decisions, so that supervisors can explain to their subordinates (and to themselves) why a certain action or decision is the right one under the circumstances. Some policy manuals give a brief introduction to each policy, stating the reason a policy is needed in this area, and what the company hopes to achieve through implementation of the policy.  Such information is invaluable when it comes to explaining an unpopular decision to employees, or when a supervisor must decide on a course of action that runs contrary to his or her instincts.

What is a Company Policy?

How many times have you heard your supervisors respond to a question or complaint with the phrase, …”Because it’s company policy”? Often, supervisors and managers use policies to avoid the responsibility for an unpopular decision or course of action. They also use policies to justify disciplinary measures, to refuse a request for special treatment, and as a guide to decision-making in difficult or controversial circumstances. As a result, in many organizations the very word “policy” strikes a negative chord.

Employees often regard policies as the overriding, but incomprehensible, “law” that keeps them from getting what they want. Supervisors and managers may regard policies as undermining their discretion and authority, and therefore they may try to ignore them altogether.

There are three major reasons for this negative view of company policies:

  1. No one understands the purpose of the policies.
  2. Many policies are poorly conceived and written.
  3. Policies are not changed when they no longer serve their original purpose.

Such problems are especially acute in companies with no policy manuals at all that try to maintain consistency by issuing a constant flow of memos, directives, and vague “understandings” about how certain situations should be handled.

Definition of Terms

The first step to address these problems is to define exactly what a policy is. Policies are often confused with rules, objectives, procedures, and plans. Let’s clear up the confusion in these areas first:

  • A Rule is a specific statement about what behavior is allowed or not allowed, or what action is required. For example, the rule regarding absences might state that when an employee is out of work for three or more days due to illness, he or she must present the supervisor with a medical excuse form signed by a doctor. While such a rule may be part of the company’s policy on absenteeism, it is not equivalent to the policy itself.
  • An Objective is a goal that the company has set for itself—for example, to keep absenteeism below 5 percent.
  • A Procedure is a sequence of steps or a method for accomplishing something. Continuing with the example just cited, the supervisor or department head might be required to review each employee’s time card at the end of the week and post any absences on an employee attendance sheet. The next step in the procedure is for the supervisor to review these sheets on a monthly basis to determine the nature of the absences and to decide what, if any, action is appropriate. In other words, this procedure details how the company’s policy on absenteeism is to be carried out, but it is not a statement of the policy itself.
  • A Plan is a set of activities designed to achieve the objective. For example, the company’s plan for keeping absenteeism below 5 percent might include strict absence-reporting procedures for employees, a series of meetings with supervisors and department heads to emphasize the importance of keeping attendance sheets up-to-date and reviewing them regularly, and memos sent out to supervisors in absenteeism-prone areas reminding them to enforce certain disciplinary procedures for chronic absentees. Each of these activities contributes to the achievement of the objective stated earlier: to keep absenteeism throughout the company below the 5 percent level.

Policy as a Guide

A policy is a guide to action and decision-making under a given set of circumstances that ensures consistency and compliance with the law within the framework of corporate objectives and management philosophy. The important word here is “guide”; it does not tell you what action to take or what decision to make, but it serves as a guide when you make these decisions for yourself.

Supervisors and managers who see policies as a threat to their individual authority and discretion either don’t understand the purpose behind the policies or the policies are so poorly defined and written that their purpose is unclear.