Legal Compliance and Risk Management for Supervisors

Sarah Andrews HermanDorsey & Whitney LLP

September 20, 2018

I. Be Observant

II. Be Responsive

III. Know the Law

IV. Manage his/her People—and know how to document

To Successfully Comply with Legal Requirements and Manage Risk A Supervisor Must:

I. BE OBSERVANT: Being truly Observant is a Supervisor’s most Important Attribute

• Look, listen, anticipate what could or what is going wrong! Here are some possibilities: meth, harassment, death threats, hazing, safety risks or violations, movies, water games, unrelated sales activities, etc.

• Try to anticipate and avoid trouble before trouble begins at your work place.

• Supervising is not an ivory tower position!

II. BE RESPONSIVE: Responsiveness Allows you to Avoid the Greatest Risks

• If you have an appropriate Harassment Policy which requires employees to promptly report harassment or discrimination and you promptly and properly respond you can avoid almost all liability on those claims. Faragher v. City of Boca Raton, 118 S.Ct. 2275 (June 26, 1998).-but you must distribute your policy! Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (June 26, 1998). NDCC 14-02.4.02(6)(c).

• Prompt response to disability concerns by engaging in and documenting an interactive process to learn and document whether a disability can reasonably be accommodated in your workplace will avoid liability under ADA and the North Dakota Anti-discrimination Law.

• Solve problems promptly and fairly – Delay increases risk!

Liability and Remedies for Harassment

• Who can be liable?– Employer

– Supervisors, Co-workers

• Type of damages and remedies available to victims of harassment– Lost Wages

– Emotional Distress

– Actual Damages / Compensatory Damages

– Punitive Damages

– Attorneys’ Fees

Liability for Harassment by Supervisors

• Employers are strictly liable for sexual harassment by a supervisor

• The “avoidable consequences” doctrine:– Precludes damages the plaintiff could have avoided with reasonable effort and

without undue risk, expense, or humiliation

The Elements of Avoidable Consequences

• The employer took reasonable steps to prevent and correct workplace sexual harassment

• The employee unreasonably failed to use the preventive and corrective measures

• Reasonable use of the employer’s measures would have prevented at least some of the harm the employee suffered

Management has a legal obligation to end harassment it knew or should have known about!

• Employers must investigate complaints of unlawful harassment. The duty to investigate arises when a complaint of unlawful harassment is made.

• Managers also have a duty to prevent claims that they should have known about, even if they don’t receive a complaint.

• Management must take prompt, remedial action reasonably designed to stop the harassment.

• The victim does not have a right to decide the appropriate response.

• The victim should not be required to transfer or change jobs to resolve the situation.

• NOTE!! A complainant’s request NOT to pursue harassment allegations CANNOT be honored without putting the employer and the supervisor at risk.

Receiving a Harassment Complaint

• Employees often make complaints directly to their supervisors before coming to the HR– Complaints can come from co-workers, too

• Get the information - be supportive without acknowledging validity

• Focus on the facts - remain objective and impartial

• Avoid agreeing or disagreeing with the complainant - Remember, the complainant has come to you wanting help

• Be supportive and emphasize that the complaint will be taken seriously

Receiving a Harassment Complaint

• Do not promise confidentiality - in fact, tell the complainant that the employer has a duty to investigate

• Let the complainant know what to expect; inform on the investigation

• Tell the complainant that no retaliation will be allowed

• Document the initial complaint and meeting

• Invite complainant to come back with additional questions

• DO NOT: (1) Dismiss the complaint; (2) excuse yourself from taking action; (3) state an opinion (agree/disagree); or (4) delay the investigation

Responding to a Complaint of Harassment

• Act immediately - do not procrastinate– The legal requirement is “prompt” remedial action

– Contact HR

• Identify and coordinate with your resources– Human resources

– Legal counsel

– Other managers

• Follow-up

Preliminary Considerations

• In a given case, there may be urgent issues that need your attention. Based on the initial information that you have:– Are there safety concerns?

– Should law enforcement be contacted?

– Should the alleged harasser be suspended pending investigation?

What about “Off The Record” Complaints?• There is no such thing as an “off the record” complaint

• The employer cannot conduct a “secret” investigation

• Think “discretion,” not “confidentiality”

When the Complaint is Valid – Prompt and Remedial Action Required

• Once it is decided the complaint is valid, what is the remedial action?– The action must be “reasonably calculated to end the harassment”

– The action should be consistent - You should review prior cases and consult with your HR/upper management

– Express strong disapproval of harassment and apply appropriate corrective or disciplinary procedures

– You will confer with your senior HR representative and/or legal counsel, where appropriate

– Follow all employee handbooks, and other employment policies

– Most importantly, document each stage of the investigation and the remedial measures

How Much Discipline is Enough?

• How to end the inappropriate conduct:– Discipline or action based on what you have concluded occurred

– An oral warning can be a “very effective first step” in some circumstances if the employer expresses strong disapproval, demands the unwelcome conduct cease and threatens more severe disciplinary action in the event that the conduct does not cease (Ask yourself, would a jury think a warning is enough in this case? Make sure you are watching closely to prevent any more bad conduct! You must prevent retaliation!)

– The employer must impose more severe measures if the harassment continues

Communicate the Outcome

It is important that the supervisor and HR discuss the results of the investigation individually with the complainant and the accused before final action is taken. Review with them:

1. The nature of the complaint

2. What was done to investigate the complaint

3. The conclusions that were reached (i.e., finding of inappropriate behavior)

4. That corrective action will be taken and

5. What will be done to monitor the situation to prevent inappropriate behavior and/or retaliation

Follow-Up Action

• Re-affirm the policy with all employees involved in the investigation, the accused and the accuser

• Periodically follow up with the victim to see if the action taken to stop the harassment worked - If the harassment is still going on, the remedy will usually not be considered an appropriate remedial measure

• The legal standard is action that is reasonably calculated to end the harassment

• Follow-up activities should be documented

When the Complaint is Not Valid

• Closure is still necessary

• You and Human Resources should advise the complainant and the accused harasser of the outcome of the investigation

• Tell witnesses the investigation is completed, but do not provide details

• Take this opportunity to reaffirm the anti-harassment policy with those involved

• Recognize personal relationships may be strained for a time

• Continue to monitor the situation to reduce the potential for retaliation

Documentation Harassment Investigation

• Keys to Good Documentation:– Objective

– Contains facts, not adjectives, not observations, not conclusions

– Make sure notes are legible

– List date and name of preparer

– For employee statements – use employee ID number in place of name

Liability for Co-Worker’s or Outsider’s Actions

The employer can be liable for harassment by co-worker or outsider if it:

1. Knew or had reason to know about the harassment and

2. Failed to take prompt, remedial action to end the harassment

However...

Liability for Co-Worker’s or Outsider’s Actions

Liability for unknown harassment may be avoided if the employer:

1. Has a policy against harassment

2. Has a proper complaint procedure

3. Educates employees and

4. Employee unreasonably fails to properly complain

NOTE: Manager/Supervisor can be personally liable if he or she engaged in harassment, failed to take corrective action, or engaged in retaliation

III. Know the Law

• Wage and hour law federal: www.dol.gov/whd

• Wage and Hour North Dakota: https://www.nd.gov/labor/wage-and-hour-topics

• USERRA (military Leave): https://www.dol.gov/vets/programs/userra/USERRA%20Pocket%20Guide.html

• ADA: https://www.eeoc.gov/laws/types/disability.cfm

• Requirements for Background checks: https://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm

• FMLA: www.dol.gov/whd/fmla

• COBRA: https://www.dol.gov/general/topic/health-plans/cobra

• Discrimination: https://www.eeoc.gov/laws/practices/index.cfm

IV. Manage his/her People

1. Observe and Honestly and Timely Document Performance issues

2. Not everyone is excellent!! (or even “meets expectations”)

3. Communicate problems and positive feedback honestly. Do not give positive feedback where it is not deserved! Give honest feedback with honest encouragement about assistance or training that is available

4. Provide training and challenges for each employee—excellent employees want a chance to grow too

5. Use corrective action/discipline, if necessary or fair—don’t ignore problems

How to Document

1. Guidelines – Documentation should be clear enough for a neutral third party to understand

what happened – arbitrations happen several weeks if not months down the road– Who, What, When, Where, Why, Witnesses – DETAILS!– But just the facts, please…

2. What is the issue or concern?– Rule or violation– The expectation– Timetable for meeting the expectation– Consequences of not meeting the expectation in timetable– Follow up

How to Document

3. Fact v. Opinion

4. Documentation must focus on facts, not opinions

5. Which is fact, which is opinion?

– “She has a bad attitude”

– “She was late this morning”

– “She is a slow worker”

– “It took him three hours to file those documents”

– “He is insubordinate”

– “I told him he needed to stay late, and he refused”

– “She sent him an obscene email”

Documentation

6. Be honest: if you can’t provide an example or a description, don’t include the behavior

7. Avoid demeaning language

8. Have the employee acknowledge the receipt of the document

9. If employee refuses to sign, sign yourself and indicate employee was given opportunity to review and edit but refused to sign

Documenting Employee Performance

1. Performance reviews and corrective action should attempt to remedy employee performance problems. Managers should consider the causes, as well as the symptoms, of the problem.

2. Employee performance problems can result from several different factors, including:– Knowledge or skill deficiencies– Motivational problems– Personal life difficulties– Performance obstacles– Inability to perform– Identifying and documenting the cause of a performance problem is a key

strategy in establishing goals and designing ways to improve performance. The appropriate remedy or corrective action measure should reflect these factors.

– REMEMBER: The Company may have an obligation to engage in an interactive process to determine a reasonable accommodation if performance issue is (or could be) related to disability.

Final Recommendations for Reducing Risk and Avoiding Liability

1. Awareness and Education– Distribute a policy prohibiting sexual harassment and other unlawful harassment

– Ensure the policy is well publicized

– Provide in-house training and awareness seminars to Create a Respectful Work Environment

2. Manage employees consistently and fairly– HONEST Performance evaluations

– Prompt Corrective action and discipline when needed.

Final Recommendations

3. Enforce “Zero Tolerance” for improper or Harassing behavior

4. Respond promptly and effectively to complaints– Develop a useful complaint procedure

– Properly and immediately investigate complaints

– Take immediate and appropriate corrective action

– Make follow-up inquiries

5. Prevent retaliation

6. Manage Well

7. Document Well

And the good news is…..

• You will be busy--------But never bored!

Questions??