Post-Investigation: Discipline, Retraining, Coaching - PowerPoint Presentation

Post-Investigation: Discipline, Retraining, Coaching and Remedies Christina Jepson801.536.6820cjepson@parsonsbehle.com parsonsbehle.com September 25, 2018

Following the investigation, the investigator should Draft an investigation reportReach a conclusionBut then what?Depends on findingsAllegations are found to be proven Allegations are found to be disprovenCannot reach definitive conclusion about the allegations Post-Investigation

If the investigator finds that there was not harassment or a company violation Follow up with accuser and the accused to let them know the allegations have not been provenRemind the employees in writing that they must comply with employer policies regarding discrimination, harassment and retaliationExplain retaliationTake proactive measures to avoid future problems Option to switch shifts, work locations, or supervisor More training Accuser should not be disciplined unless there is finding that he/she made the allegations in bad faith No Violation

If the investigator finds that the allegations are not proven nor disproven (they are inconclusive—the classic he said/she said with no corroboration or other means for making a determination) Follow up with accuser and the accused to let them know the investigation was inconclusive Remind the employees in writing that they must comply with employer policies regarding discrimination, harassment and retaliationExplain retaliation Take proactive measures to avoid future problemsOngoing monitoring Option to switch shifts, work locations, or supervisor More training Accuser should not be disciplined unless there is finding that he/she made the allegations in bad faith Inconclusive

If the investigator finds that the accused engaged in sexual harassment and/or violated the Company policy, the Company should impose discipline This is true even if the conduct is not technically “sexual harassment” under the lawThe employee may have told one inappropriate joke which is no pervasive, but still may violate policyIt is always better to find that the employee violated the policy than to find that the employee “engaged in sexual harassment”—that is a legal conclusion Violation

If there is a finding that an employee violated the sexual harassment policy or engaged in inappropriate behavior, the employer will have to decide on a disciplinary action that will Effectively end the harassment;Make the accuser feel safe; andProvide a reasonable response given the nature of the conduct, severity, and prior violationsDocument the employer responses Violation

Follow up with accuser Inform him/her that the allegations have been investigatedA conclusion has been reached and what it isWhat action was takenConfirm that the complaint was welcome and thank the person for coming forwardExplain retaliation and that any retaliation should be reported immediately—get in writing Violation

Wide range of possibilities Oral warning (documented)Written warningLast chance warningsCounseling/CoachingTraining Impact on bonusPay freeze (no raise) Suspension Demotion Termination Discipline

So what is appropriate? What can you do—are you in an at will state?What can you do—do you have contractual or union obligations? What can you do—what are your policies?Consistency—punishment should be consistent in the Company Proportional—”punishment should fit the crime” Discipline

First, determine if you are dealing with at-will employment In most states (including Utah) employment is at-will. This means that an employer can terminate an employee for any reason (except an illegal reason), at any time, with or without notice. An employer has a broad range of disciplinary choices. In a non at-will jurisdiction, you must follow the law. At Will Employment

First, determine if you are dealing with at-will employment Are you in an at will state?Do you have contractual obligations? A contract may change the at will status of an employee. Do you have union obligations or processes? This may change the at will status of an employee. At Will Employment

First, determine if you are dealing with at-will employment An employee may still bring a wrongful termination claim even in an at will jurisdiction. That is why you always need to make sure your investigation process and decision are solid and documented. At Will Employment

Second, what Is your disciplinary process? Before taking action, review your employee discipline policy. Make sure before you discipline an employee that you have followed your policy carefully unless there is a good reason to deviate.Which, of course, raises the question are your policies “good” policies? Process

Third, what have you done historically? Before taking action, review your history of employee discipline for similar behaviorMake sure you are acting consistently and can justify your actions Otherwise, you may be facing a discrimination claim from the alleged harasser Consistency

Very important to be consistent to avoid discrimination claims Which means someone has to keep a recordThe record needs to be institutionalized and passed on when HR managers changeIs it ever appropriate to throw consistency out the window?Consistency

YesLet’s take the Harvey Weinstein case and consider consistency When the allegations came up what did the company likely discover about how it had consistency dealt with such allegations/findings in the past?Sometimes you have to break with consistencyWhen you set a new precedent make it clear to the company that you are doing so—announce that there will be changes Big lesson of the MeToo Movement Consistency

So what is appropriate? Consistency is very important in employment decisions to avoid discrimination claimsYou cannot discipline a man differently than a womanYou cannot discipline a Hispanic person differently than a Caucasian personYou cannot discipline the President of the company differently than the janitor (well, you can, but it is risky) Consistency

If the company does not have a history of discipline, the company should make sure it is setting a precedent going forward that can be justified by the actions not just of this particular employee in this case The precedent will have to be applied if the behavior is also engaged in by the most important and well-liked employee in the companyEvenly applied to harassers of any sex, gender or gender identity Even though employee discipline should be private, everyone will talk and it will get around Consistency

Fourth, is it proportional? Does the punishment fit the crimeSeverity of conductFrequency of conduct—repeat offender?Strength of proofCooperation Proportionality

The “zero tolerance” problem If you adopt a zero tolerance policy you may be setting yourself up for problemsIf zero tolerance means some discipline will be implemented that is fineIf your baseline is termination (“zero tolerance”), you set yourself up for a discrimination when you do not fire someone You also set the stage of the revenge complaint You set an example that can be damaging to morale Proportionality

What is proportional? Employees are humansHumans have poor judgment on occasionSometimes an employee does not know when they have crossed the line from occasionally annoying behavior to sexual harassment until someone brings it to their attentionLike any “crime” all the circumstances must be considered Proportionality

Getting Something More For Your Disciplinary ActionDiscipline affects all employees, not just the employee being disciplined. Sometimes a well-timed, well issued discipline can straighten out a problem in the workplaceThe discipline is sending a message that this type of behavior will be handled in a certain wayYou need to be consistent in your application of discipline. Sending a Mesage

So in addition to written warnings, employers can Require sexual harassment training courses. Continued employment can be conditioned on the prompt attendance of a training session. Other special training.Formal apologies. Often goes a long way to clear the air. With a trained HR mediator. Reassign the employee to another department or work space, if possible. Suspend the employee without pay. Creative Responses

Warning: Keep It Private The employer and HR staff have to keep disciplinary matters private and confidential. The employer has to be above the situation, but should be cognizant of employee behavior.Except—inform the accuser and accused of results Privacy

But when do you need to communicate? The workplace knowsThe world knowsNot commenting would cause bigger problemsCommunicate enough to say “we have handled the problem” without including all the details Communication

Key Take Aways Follow any state rules (in non at-will states), contractual requirements, or union requirementsFollow your own disciplinary policy to the letter and document, document, document, documentBe consistent. Remember, disciplinary action must be justifiable, evenly applied to all similar situations, and responsive to the severity of the issue. Take Aways

Key Take Aways Specifically advise the accused and accuser regarding no retaliation and have them sign a documentFollow up periodically to make sure there are not problems.

Louise feels like she has been sexually harassed. Her boss, Jake, is always telling her she looks nice and stares at her chest. He also talks to his friends about sex loudly enough that Louise can hear. She complains to HR and HR investigates. HR finds that he has engaged in this behavior. Jake admits the behavior except staring at her chest. He said he had no idea Louise felt uncomfortable. Jake seems genuinely sorry and says he will change his ways. What should the company do? Scenarios

Stacey complains that her supervisor Lamar has harassed her. She says that Lamar yell at her, makes unreasonable demands, and is overly critical. The company investigates and finds no sexual harassment. The behavior is not sexual. Also the behavior is not just directed at Stacey and not just directed to women. In fact, the Company finds that Lamar is a big jerk to everyone who works under him. But Lamar gets good results. What should the company do? Scenarios

Juan complains that James sexually assaulted him the work parking lot as they were leaving their shift. Juan also calls the police. The police do not find enough evidence to go forward with a charge. The company does its own investigation and finds credible evidence of an assault. What should the company do? Scenarios

Jania complains that she heard Brian tell a dirty joke in the break room. He did not tell it to her but she overheard it. It was about sex and it made her feel uncomfortable. She reported it to HR and HR investigated. HR found that Brian did tell the dirty joke (several people heard it) but Brian denies it. Brian has no other history of problems. What should the company do? Scenarios

Tom complains that his boss, Edward, uses demeaning language when he doesn’t get a sale. He calls him “girlie boy” and tells him to wear a dress. The investigation concludes that that Edward did use this type of language repeatedly. Edward is not sexually interested in Tom and seems to be genuinely unaware that this constitutes sexual harassment. What should the company do? Scenarios 32

Christina M. Jepson 801.536.6820 cjepson@parsonsbehle.comThank You