Kara Murray speaks with ADP attorneys, Kristin LaRosa and Meryl Gutterman, about best practices for employers in the wake of the #MeToo movement.

Overview

HR{preneur}TM, a podcast by ADP's Small Business Services, is designed to help you get the insight you need in order to tackle day-to-day workplace issues. In each episode, you'll hear from industry experts about the latest in HR, such as the #MeToo movement, evolving marijuana laws, and more. Each episode will be between 10 and 15 minutes long, but full of practical advice. Find us on Apple® Podcasts or visit the HR{preneur} podcast page on Podbean.

Episode Info

HR{preneur} Episode 2: Lessons Learned from the #MeToo Movement

As a result of the "Me Too" movement, some states have enacted new laws for employer anti-harassment policies and training. Even if your state doesn't have specific requirements, small business owners need to be particularly careful due to the greater impact a harassment claim can have on employees and company finances in smaller organizations. Learn about the steps you can take to help prevent harassment and respond effectively should it occur.

Speaker Info

Kara Murray is the Vice President of Sales Operations for ADP's Small Business Client Channel. Kara has been with ADP for 9 years and has been in various sales and sales leadership positions while she has been with ADP. One of her primary goals is to educate our clients on the ever-changing HR landscape and how ADP can help them overcome everyday workplace challenges.

Kristin LaRosa is Senior Counsel for ADP's Small Business Services division. Prior to joining ADP, Kristin worked as an employment lawyer where she represented employers in litigation and provided legal advice and counseling on day-to-day employment and HR matters.

Meryl Gutterman is Counsel for ADP's Small Business Services division. Prior to joining ADP, Meryl worked as an attorney in private practice representing small businesses in employment-related matters.

Reference Shelf

Transcript

Kara Murray: A little over a year ago high profile allegations of sexual harassment set off the Me Too Movement, which disrupted the workplace across the country. As a result, sexual harassment policies and procedures have really faced increased scrutiny. Many offenders are being shown the door regardless of their title or rank. I'm Kara Murray and this is HR Preneur, a podcast by ADP. We know you work incredibly hard to support your employees and make your business a success. More than likely this means you wear lots of hats and one of those might be HR Professional. We're here to help you get the insight you need in order to tackle day to day workplace issues.

This week I'm lucky to be joined by Kristin LaRosa and Meryl Gutterman. Both work as counsel for ADP Small Business Services. They're here to talk about how the Me Too Movement has impacted the workplace and some steps that you can take to help prevent and respond to harassment. I also want to thank the ADP Client Appreciation Program for sponsoring this episode. You can get free payroll by referring ADP and if you're interested in learning more you can talk to your local ADP sales representative. So Kristin, I'd like to start off by talking about sexual harassment policies. Is a policy enough for preventing sexual harassment and avoiding complaints?

Kristin LaRosa: So the Me Too Movement has certainly brought an increased focus on employers' anti-harassment policies. And we're seeing a lot of states that have enacted new laws to address the issue. For example, this past year New York passed a law requiring employers to distribute a written policy prohibiting sexual harassment. This law also requires employers to include certain elements in their policy, such as clear examples of conduct that would constitute harassment, a procedure for the investigation of complaints, along with an actual copy of a complaint form. The state also issued a robust model policy that will help employers which is several pages long.

And while I'm focusing on New York, just note that several other states also require employers to have a written policy on sexual harassment. So a written policy is one step towards compliance but it will have very little meaning if you're not enforcing it and if you don't train your employees. So in other words, you have a duty to respond and take specific and immediate action if you're made aware of any potential misconduct. And you want to be sure your employees are trained on what constitutes harassment and how or where they can report complaints.

Kara Murray: So before we get into what employers should do if they're made aware that harassment may be occurring, what should their anti-harassment policy include?

Kristin LaRosa: So the specifics are going to vary depending on things like where the business operates but generally you want to just make sure it's clear that sexual and other unlawful harassment will not be tolerated. You also want to include the definition of sexual and other types of harassment, provide specific examples of misconduct, and also state the consequences for anyone who violates the policies. So you would include like the type of discipline or even possibly termination. And the policy should also clearly outline your complaint procedures and explain that any employee who files a complaint or participates in an investigation will not be subject to any retaliation.

Kara Murray: Okay. So Kristin, you mentioned an employer should define sexual and other types of harassment. Sometimes it can be a gray area. Can you define this for us?

Kristin LaRosa: Sure. So again the specifics are going to depend on the law and it's also going to depend on how the law has been interpreted. But in general sexual harassment usually consists of some kind of unwelcome verbal or physical sexual conduct that impacts a person's employment or that interferes with their work performance or creates an intimidating or a hostile work environment. For example, you can have what's known as quid pro quo harassment where a supervisor suggests that an employee will receive a raise or a promotion or to avoid being fired unless they submit to certain sexual demands. Or you can have a hostile work environment situation where an employee is exposed to conduct that is so severe or pervasive that a reasonable person would consider it abusive, hostile or intimidating.

Kara Murray: Thank you, Kristin. So the Me Too Movement has demonstrated that in many cases employers' responses to harassment complaints are inadequate. This not only hurts the victim but it can also negatively impact coworkers who witness or know about the harassment. Meryl, what can employers do to ensure a harassment complaint is properly addressed?

Meryl Gutterman: I think the first step is to make sure that employers take all complaints seriously, whether they're receiving a formal or an informal complaint. Complaints won't always be in writing. Sometimes victims or witnesses are afraid to come forward with an official document. So it's important for employers to respond quickly to all types of complaints, whether they're verbal or written.

Kristin LaRosa: Also as soon as you're made aware of potential harassment, most laws do impose on you a responsibility to promptly launch an impartial and thorough investigation regardless of who's involved. And as we've seen over the past few years, harassers often come from a position of power and could be pretty high up in the company. But that doesn't mean that they're exempt from your policy.

Meryl Gutterman: That's right. And depending on the circumstances and who's involved, you'll want to think about whether you want to conduct your own internal investigation or if you want or need to hire an outside party to ensure that the investigation remains impartial and objective.

Kara Murray: So for the employers who choose to conduct their own investigations, what tips can you provide them?

Meryl Gutterman: Well, there's a lot to keep in mind when conducting a workplace investigation. At a high level, you'll want to interview the person who filed the complaint, any witnesses to the harassment and the person being accused. It's also a good idea if you can to have a third party present during the interview. And ideally you'll have a trained investigator who will gather the facts, who will evaluate the credibility of each party and prepare a report on their findings. Sometimes you'll want the report to be strictly fact based and sometimes you'll want the investigator to reach a conclusion that's based on the information that they've gathered. But either way, you should make sure that your investigator doesn't offer their own opinion throughout the process. Make sure they're not saying things like I believe you or alternatively this is a meritless complaint that's not worth anything.

Kristin LaRosa: Yes, that's a good point. And also if your investigation reveals that harassment did in fact take place, you want to make sure that you take immediate and approach action. Not only is this necessary to fix the issue but you also need to prevent it from happening again. And you also want to make sure that any disciplinary action that you take is proportional to the seriousness of the event and it's also consistently applied. And if after your investigation if you can't make a determination whether harassment occurred, you may still need to implement preventative measures such as further training or closer monitoring on your work force or the impacted department. Remember that how you respond to complaints will set the tone for employees and can strengthen the company's position that harassment will not be tolerated.

Kara Murray: So all of this makes sense when you've been made aware of a problem. But sometimes victims of harassment don't report it. They often cite their concern that it might impact their career or it could cause them additional trauma if they were to come forward. What can employers do to help victims and witnesses for that matter actually come forward?

Meryl Gutterman: Agreed, yes, this hesitation is something we've heard many victims of the Me Too Movement talk about. Sometimes there's a significant power differential between the parties, such as a top executive and a junior employee and that can discourage the employee from reporting potential harassment. So to help all of your employees, it's a good idea to emphasize both in writing through your policies and in person through trainings that employees can and should report any incidences of harassment without any fear of retaliation.

And when we're talking about no retaliation, we're talking about explaining to employees that their job won't be negatively impacted by coming forward. They won't be denied a promotion or a job opportunity or even be terminated because they reported harassment. Also make sure that you're giving your employees multiple avenues to report violations and never tell them that they should grow a thicker skin or that's just the way it is and minimize what they're reporting.

Kristin LaRosa: And you also want to keep an eye out for warning signs that you may have a problem with a particular supervisor or department. So this could be if you see things like increased turnover in a certain department or for those who report to a direct supervisor or if you see a large number of transfer requests coming from the same area.

Kara Murray: That's great information. It seems employers that are aiming to solve this problem are offering anti-harassment training. What makes a successful anti-harassment training program?

Meryl Gutterman: I would say firstly the message needs to come from the top down. Employers need to use training to show that harassment is not only against the law but it's also against the company's values. And to be effective the training it should be interactive. That's to help encourage employees to ask questions and to also make sure that they're staying focused. And your training should also include examples, specific examples of prohibited conduct so that it's relatable. And explain all of the ways that your employees can file complaints if they see any misconduct. And also encourage witnesses to come forward by training bystanders on what they should do if they believe harassment is occurring. And as far as your supervisors go, they're also going to need to be trained on how to respond when those complaints come in.

Kara Murray: Okay, great. Now in some states anti-harassment training is mandatory, right?

Meryl Gutterman: Yes, exactly. California requires employers with five or more employees to provide sexual harassment training to employees every two years. And now New York State also requires employers to provide sexual harassment training to all employees annually. And I also know there are a few other states and cities that have similar requirements, including Connecticut, Delaware, Maine and New York City as well.

Kristin LaRosa: Yes, and I just want to mention here that even if you're not required by law to provide training, we would still recommend that you train all of your employees and not only on sexual harassment but other types of harassment as well. And as Meryl previously touched on, interactive training is really best practice and that may even be required depending on where your business is located.

Kara Murray: Thanks, Kristin, and thank you, Meryl. As always, this has been really informative. So it seems like some key lessons from the Me Too Movement are that a policy isn't enough, interactive training is critical, and fostering a workplace where employees can freely report complaints is essential. You guys provided some great insight on how employers can get ahead of some of these concerns. We want to thank you all for listening to HR{preneur}. I'm Kara Murray and for all the latest episodes subscribe in iTunes or wherever you listen to podcasts.

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