Featuring The Partners Group, HR Answers and Tonkin Torp

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Oregon Business hosts a panel discussion on how to assess your risk and protect your organization against potential lawsuits and reputational damage. Community members also gathered to network and share insights on their business and experiences with workplace misconduct. Below are 5 key takeaways from this discussion followed by an audience Q&A.

Read an overview of the discussion published by the Oregon Business Magazine by clicking here.

Outline:

Moderator:

Linda Baker, Editor, Oregon Business

Panelists:

Laurie Grenya, co-President of HR Answers, a provider of Human Resources training and consultations. HR Answers supports attorneys in their preparation for litigation as well writing policies and investigating harassment claims. Laurie brings 15 years’ experience in harassment in both private and public sectors.

Haley Morrison, partner with Tonkon Torp, primarily counsels on harassment and discrimination practices. Tonkin Torp provides litigation, advice and counsel including all employment defense work for a number of different employers of all sizes. Haley started her practice in California and focuses on employers on the West Coast.

Roxanna Jessen, Account Executive at The Partners Group, who focuses on commercial insurance markets and employment practice liability. The Partners Group is among the largest independent benefits brokers in the Northwest with services including commercial insurance, employee benefits analytics, wellness programs, wealth management, retirement plan consulting and personal insurance.

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Prevention is Key

Roxanna:  From an underwriting perspective, just being able to show the underwriter the steps you’ve done to either improve the organization overall if there was a claim, or preventative measures if there hasn’t been a claim will only help your case as far as driving premium costs down.

I would check with your insurance carrier as well. A lot of times, they’ll have training available for free.

Linda:  What if a manager suspects someone as being harassed, but that person has not complained?

Haley:  This is an interesting question. In prior experience, we’ve said, “If they haven’t complained, then let it go.” As a company, your defensible position is post-complaint, right?

Now, with this new movement, with #MeToo and with the workplace having more open dialogue, I would actually give the opposite advice. I would say, “You’re better off knowing. You’re better off having somebody that is trusted. Go talk to that employee even if you find out it’s about cupcakes and not about something we need to take care of.”

We are better off as companies and as employers in knowing what’s going on with our employees so that we can be proactive. Stop it early even if in the course of litigation. Otherwise, you would be able to say, “Here’s my complete defense. They never complained.”

Roxanna:  For insurance, it’s setting the expectation to our clients as far as rates are going up. Claims are coming in every single day. There was a claim back in December that settled for over $90 million for a D&O, directors and officers, but it was a harassment claim.

Just to be educating our clients as to what to expect in the future and make sure they have all of the policies and procedures in place to show the underwriters at the end of the day, “Hey, this is what we’re doing to prevent this and we want to keep our rates as low as possible.”

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Build an Intentional Culture

Laurie:  I would add to that that most organizations have a culture whether you know it or not. My emphasis here is you should know what your company’s culture is. You should have been purposeful in determining what that is. Management has a role and responsibility associated with modeling that.

Linda:  You have to know your culture. At the same time you need to have an actual policy in place around workplace misconduct and sexual harassment.

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Claims Can Come from Anyone

Roxanna:  We talked about this earlier, but third parties. Your vendors, your customers, anybody that walks on your premises is also subject to harassment and can file a claim.

Haley:  That’s your UPS person. It’s the invited customer onto your premises or out to a social event. It is the people you invite to your workplace, celebrations. All of those people that are invited into the work environment. If they are harassing your employees, you are on the hook for those people. You have a responsibility to protect your employees.

Roxanna:  And vice versa. If your employees are harassing the UPS guy, you can be on the hook. Your employment practices policy does not automatically include that, so you have to make sure you’re checking to see if third‑party coverage is there.

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Ensure You Have Avenues of Approach

Haley: I think the most important thing is for employees to be heard, even if you come to a different conclusion than they wish that you did.

Laurie: If the manager’s never there, or not accessible, or HR’s never there or not accessible, then we run into the…They’re stewing on it. They’re thinking about it. It’s growing in severity for them. Maybe in reality, maybe in perception, but it’s still gotten worse.

Haley: It’s also very important to define who those people are. I always counsel my clients, “Do not say any manager or any supervisor. It needs to be people that are trained to recognize and deal with these kinds of complaints,” but at least two avenues, so HR and the CEO or your manager or HR.

It needs to be directed enough that these complaints aren’t happening to peers, that are not happening to lower‑level supervisors that aren’t trained to handle it. If a complaint is made to them, pursuant to the policy, and that person doesn’t know what to do with it ‑‑ so they don’t go to HR, they don’t go up their appropriate chain ‑‑ now the company is on notice.

As a matter of law, the company is on notice about this and decided not to do anything or did not act appropriately. You lose the value of the complain in the first place.

Laurie:  I think two things I would suggest in that one are that everybody is responsible for this. It’s not just a management exercise. Every employee needs to engage and your policies should talk about the fact that everybody’s a reporter.

If there’s something going on that you’ve observed or that you’ve experienced, you report it. You find the right person. That right person can be many different people. Keep it open. Because if the person they’re concerned about is their upline and your policy says the upline is the only person they can report to, that’s going to be a problem.

Roxanna:  It’s also beneficial to have multiple lines to file a complaint, multiple people to file a complaint with. If they don’t feel comfortable going to HR, maybe a director, or somebody else, or online, or an email that you can reach out to is important. Not a lot of people feel comfortable necessarily walking over to HR and having that conversation.

The second thing as far as policy verbiage is make sure that it’s not worded in a way where people aren’t going to understand it. If you have a bunch of young people in your organization, you want to make sure that they’re understanding the expectations.

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Be Accessible and Maintain Open Dialogue

Linda:  Transparency in general is just a healthy move in the right direction.

Roxanna:  From a underwriting perspective, just being able to show the underwriter the steps you’ve done to either improve the organization overall if there was a claim, or preventative measures if there hasn’t been a claim will only help your case as far as driving premium costs down.

Roxanna:  For insurance it’s setting the expectation to our clients as far as rates are going up. Claims are coming in every single day. There was a claim back in December that settled for over $90 million for a D&O, directors and officers, but it was a harassment claim.

Just to be educating our clients as to what to expect in the future and make sure they have all of the policies and procedures in place to show the underwriters at the end of the day, “Hey, this is what we’re doing to prevent this and we want to keep our rates as low as possible.”

Linda:  Can you provide additional examples of measures or tactics that would navigate that divide between transparency and caring and an environment that as you say, is excessively too PC on the other hand?

Haley:  From my own personal perspective and in dealing with the clients that I have, I think the most important thing is for employees to be heard, even if you come to a different conclusion than they wish that you did.

Training helps a lot. “This is what the law says, this is what our policy is, even if it’s more restrictive than the law,” meaning that we control more behaviors than the law would otherwise police. “This is how our work environment is.” That kind of training is very, very helpful and then being able to have an open dialogue so if somebody comes to me and says, “I’m very offended about this thing,” you can say, “OK, I understand that is a particular sensitivity to you. It’s not something that as a company we’re going to invest a lot of time or energy in, but please, feel free to talk to me about it. You always have an open door.”

That ability to be heard even if your concern ultimately doesn’t land with an investigation or somebody being fired, or the result that the employee wants, sometimes that’s enough. Just to know that they have been heard and that they are cared about.

Laurie: We have all heard the phrase “You have an open‑door policy. If you’ve got something, come to talk to me about it.” Whether that’s your HR shop or your managers, is the door really open?

I think that’s one of the concerns that we run into, which is “Every time I go by, I just wanted to drop by for a couple seconds and say, ‘Hey, this is feeling weird to me’ or ‘I’m not sure what I’m supposed to do with this.'”

If the manager’s never there, or not accessible, or HR’s never there or not accessible, then we run into the…They’re stewing on it. They’re thinking about it. It’s growing in severity for them. Maybe in reality, maybe in perception, but it’s still gotten worse.

How do we line up those things? Management has to have a clear responsibility for that. I also think employees have a responsibility when you observe those types of things we were talking earlier.

Again, I totally agree, you cannot PC everything. It’s not possible. Those differences are what make our organizations unique and fun to be in and the things we value about each other. The reality is, you still have to know what your culture is, and if you think you know it, you don’t have enough information yet. You should know it.

Laurie:  I think two things I would suggest in that one are that everybody is responsible for this. It’s not just a management exercise. Every employee needs to engage and your policies should talk about the fact that everybody’s a reporter.

If there’s something going on that you’ve observed or that you’ve experienced, you report it. You find the right person. That right person can be many different people. Keep it open. Because if the person they’re concerned about is their upline and your policy says the upline is the only person they can report to, that’s going to be a problem.

Hayley: It’s also very important to define who those people are. I always counsel my clients, “Do not say any manager or any supervisor. It needs to be people that are trained to recognize and deal with these kinds of complaints,” but at least two avenues, so HR and the CEO or your manager or HR.

It needs to be directed enough that these complaints aren’t happening to peers, that are not happening to lower‑level supervisors that aren’t trained to handle it. If a complaint is made to them, pursuant to the policy, and that person doesn’t know what to do with it ‑‑ so they don’t go to HR, they don’t go up their appropriate chain ‑‑ now the company is on notice.

As a matter of law, the company is on notice about this and decided not to do anything or did not act appropriately. You lose the value of the complain in the first place.

Laurie:  The only thing I would tag on to that is don’t forget complaints do not have to be in writing. We review a number of handbooks in our organization. I cannot tell you how many times we have to strike that language out of their policy. They’re making an attempt to have a policy. I do appreciate that.

We really, really need people, anyway that they’re comfortable, that they can bring information forward. If, for you, you need to get it in writing and you’ve received something, yourself, feel free to write it out for them, and send it back to them, and say, “Did I capture our discussion accurately?”

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Questions from the Audience

Audience Member: My question is we’re hearing a lot in the news about, “#MeToo, and this happened 10 years ago.” I had a female employee come to me and say, “I was harassed 10 years ago by a man that is no longer at our company.” I think to say, “Well, that doesn’t matter because it was so long ago,” is wrong.

You have to say, “I’m sorry that it happened. I’m sorry you didn’t report it to me at the time. That person is no longer here, blah‑blah‑blah.” We’re seeing in the news all this stuff about so long ago versus statute. Maybe they don’t have legal liabilities to meet, but they still have personal liability. Can you talk about that a little bit?

Haley:  That’s a really interesting point. We are seeing so much of that. I have an employee that was brought to my attention for one of my clients recently where this incident happened 30 years ago. They’ve been hanging on to it, and they’re still mad. They never brought it to our attention before that.

This goes back to listening and making somebody feel heard. As a company, you have no legal responsibility in that vein anymore. If it’s a former manager, that manager’s gone. As a matter of law, there’s no statute of limitations that’s ever going to apply. You could blow them off, but then what do you have?

An angry employee that’s going to find another reason to be angry with you, not productive, etc. Really, the obligation there is not so much from a legal perspective. It’s more just the human connection where you just say like you said, “I am so sorry that happened to you. Had we known about it, we could have taken corrective steps. What can we do to help you now?

“Is there something that is in your environment now that is reminding you of the situation or that is ongoing, or it’s a cultural problem? Is there something now that we can do to address the situation that happened many years ago?” Sometimes what you find out is that it’s really the culture that persists.

That’s what’s upsetting the employee as opposed to the particular person that they’re upset about. In the 30‑year‑old situation that I’m dealing with now, what I’m finding is that the employee is very bothered about that thing that happened 30 years ago but more bothered about the fact that it still permeates the culture with other people. It felt like it was an unaddressed issue that follows her.

Audience Member:  If your company does not have a policy like what Intel has and as a manager you see or hear about a relationship arising on your team that’s either troubling or disruptive, not having that policy, what latitude as a manager do you have in addressing it?

Laurie:  I think it’s more of a cautionary note for those individuals, which is, “While we don’t have any policy that says this cannot happen, we know that it’s all good until it’s not.” [laughs] Many of us have experienced that, and even just in our personal relationships. Infrequently do we date one person and marry that person and so on and so forth. It’s all good until it’s not.

“If this is something that becomes an impact to the work environment, we may need to have further discussions, so please just moderate your relationship.” There isn’t much more but to say, “I know it’s going on, and it may cause an issue. Go all about your work, please.”

Haley:  Yeah, I would echo that. Where you are going to run into trouble is if that relationship does start to permeate the workplace and you have to make a decision about either separating them, removing them, demoting somebody, or firing one or both.

How you navigate that choice…Sometimes those are conversations that you might want to have upfront, which is, “We don’t have a policy related to this. It’s fine. You’re a manager and a subordinate, but here’s what’s going to happen ‑‑ the manager’s going to go if it becomes a problem.” Male or female.

Make it articulable as to what the consequences can be, so that what’s not happening is that you fire the female because you tossed a coin and now you’ve got a discrimination charge or a harassment charge.

I would have some upfront conversation and then say, “Hope everything goes great, but if it starts to affect the work environment, this is what we anticipate the result would be.” Sometimes the best result is that you both have to go.

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