March 2015
Welcome to March! As winter begins to come to a close and warmer months approach, now is the best time to begin preparing for any planned spring cleaning tasks. From workplace investigations to internal record retention, our team of HR Pros are here to help guide you.
HR Alerts
Litigation Halts FLSA Exempt Status Change for Home Care Workers
The Home Care Final Rule, which would have made almost 2 million home care workers, who were previously classified as exempt, eligible for minimum wage and overtime under the FLSA, did not go into effect at the beginning of 2015 as planned. A federal judge struck down the two main provisions of the Final Rule (disallowance of third party use of the companionship exemption and a greatly narrowed definition of companionship services) which immediately halted implementation. The Department of Labor has appealed both of these rulings, and until the appeal is decided, employers may continue to use the exemption as it was before the Home Care Final Rule.
Workplace Bullying
Although workplace bullying may be a new concern for some employers, others are all too familiar with its perils. Before we discuss facts of bullying, let’s look at its role in the workplace today. While bullying is not only a company culture issue, it is also a major liability concern for employers. Several states have litigation pending that would make bullying unlawful; California leads the way with its recent passage of A.B. 2053. This Assembly Bill requires covered employers to include prevention of “abusive conduct” in their mandated harassment prevention programs for supervisors. At the HR Support Center, we expect to see may states follow California’s lead in the coming years, so while prevention of abusive conduct may not currently be required in your state, it is a best practice to prepare and implement anti-bullying programs in your organization.
Bullying is not isolated to a select few industries, nor is it a rare occurrence in the workplace. In fact, twenty-seven percent of employees reported they were currently being bullied, or had been bullied previously, in their careers according to a recent survey by the Workplace Bullying Institute (WBI). In addition to exposing your organization to legal risks, bullying also causes a serious drain on workplace morale and ultimately employee productivity, which, of course, can damage your bottom line. Employees who feel bullied are more likely to miss work, for fear of being in the environment with the bully, and are also more likely to leave their jobs, leading to high turnover rates and the loss of good talent. So, what can your organization do to stop bullying and abusive conduct in the workplace? We recommend you learn the signs of workplace bullying and implement a policy to prevent it.
What does bullying look like? It may surprise you to hear that workplace bullying doesn’t usually include shouting or other overt actions; it is typically done on a softer, but equally demoralizing scale. Bullying typically includes the following behaviors: unwarranted or invalid criticism, blame without factual justification, treating the bullied employee differently than the rest of the employees in a work group, or making the bullied employee the target of exclusion, social isolation, rumors and/or gossip.
Many employees may not understand that these behaviors are abusive, and therefore do not understand that something is wrong. The employees feel this is a part of the workplace culture and try to deal with the behaviors on their own. However, bullying behavior rarely resolves itself without management intervention. While workplace culture is important (and we would not recommend that you “sanitize” your unique culture) you will want to be aware of what is simple, offhanded and good-natured teasing, and what crosses the line into abusive conduct. We would recommend that you do an honest analysis of your organization and consider these questions about your culture:
Does it encourage and support comradery, or does it create an environment that feeds on heavy competition?
Does it welcome the opinions of staff-level employees, or does it make them feel hesitant to speak up and offer different viewpoints, favoring only the opinions of management?
Does it give weight to complaints and then quickly investigate those internal complaints?
Does it lead by example from the top down and consistently demonstrate appreciation for all employees? Is there an expectation that everyone will be treated fairly and with dignity?
Once you’ve analyzed your workplace culture, we recommend you take some steps to correct any current concerns you uncover, as well as implement a future zero-tolerance policy for abusive conduct in the workplace. This policy will be best communicated to employees via your employee handbook. You will find a sample policy in the HR Support Center that we encourage you to download and customize for your organization.
However, simply having a policy is not enough. You will want to ensure that employees understand the issue and the consequences for violation of your policy. The best way to generate awareness is to be sure employees are trained to recognize bullying behavior and know who to turn to for help if they feel they are being treated poorly and in violation of the policy. Since employees are more likely to turn to their immediate supervisors for help, we would recommend that once a policy is implemented, the organization trains all managers and supervisors on the parameters of the policy – making sure they understand and can communicate to employees the boundaries set forth by the policy. Supervisors should also be trained on the need to immediately report any reports of harassment, bullying, or inappropriate behavior to the Human Resources representative or other management figure.
Finally, once a complaint has been made, it’s important that organization takes the allegations seriously and completes a thorough investigation. Doing so not only sends the message to other employees that such behavior will not be tolerated, but a complete and thoroughly documented investigation can be a useful tool in demonstrating that the organization operated in good faith toward its employees. This investigation documentation will show that the organization took immediate steps to address abusive conduct- and will prove vital if your organization were ever challenged regarding any of its actions. Recognizing the signs of bullying and abusive conduct in the workplace, is the first step to mitigating the risk of this behavior.
Question & Answer
Q: How should we handle a situation where customers are complaining about and refusing to work with one of our employees due to his lack of personal hygiene?
A: This is certainly a sensitive issue. We recommend starting by having a coaching meeting with the employee that will not be considered a disciplinary event. You should meet with employee in a private location without interruptions where you can explain the problem and how it affects the workplace. Holding the meeting at the end of the day may be best as it will allow the employee to leave immediately afterwards. If you have a policy about personal hygiene in place, review it with the employee.
Trying to find the root of the issue or providing solutions may embarrass the employee. Instead, try to be compassionate and focus on the company’s future expectations. Be sure to give the employee room to speak and ask questions. It is possible the employee has a disability that impacts their hygiene or that there are protected religious or cultural factors in play. This is definitely a difficult conversation, but in our experience, an honest conversation generally produces positive results if you remain sensitive. If the employee’s hygiene levels continue to be an issue, the next meeting may have to be disciplinary in nature and should be handled with the same progressive discipline process that you use for other matters.
Workplace Investigations- Part I
Many businesses find themselves having to conduct workplace investigations for many different reasons—from harassment to conduct-related issues. Knowing how to conduct a thorough investigation is key for reducing the amount of liability to which employers expose themselves. In this two-part series, we will explore the best practices for conducting a workplace investigation. In this first installment, we will talk about some of the things that an employer should know ahead of time, before an actual complaint necessitating an investigation is made.
Understand the goal of the investigation.
Before conducting an internal workplace investigation, it is important to determine the purpose of conducting these investigations—to determine what actually occurred (uncovering of facts) in the situation that is being investigated in order to make a workplace decision. Using this information, the company can properly show that it has done its due diligence to understand the facts of the situation under investigation. It also gives the company the opportunity to take action as necessary, limiting the liability for the company and managers involved.
Once the HR contact receives the complaint, he or she should then make an assessment of whether or not an internal investigation is necessary. If no other facts or outside resources are needed to resolve the issue, then the issue may be resolved informally. However, an internal investigation should be conducted if the complainant cannot supply all the facts needed to make a determination.
It is important to receive the complaint in an unbiased manner. Sometimes claims are made out of spite or to retaliate against a supervisor for identifying performance deficiencies or providing disciplinary action. However, until the claim is fully and carefully investigated, conclusions about guilt or innocence should not be formed.
Throughout the process, strong consideration should be given to the question, “How will the evidence and overall process be viewed by a neutral third party if a charge or lawsuit results?”
Be timely with your response.
Investigations are typically a result of issues that are fairly sensitive in nature. This requires employers to address the situation as quickly as possible. If a complaint is filed, supervisors should immediately report any complaints to the HR contact within the company. All supervisors and managers within the company should be properly trained to assume personal responsibility for contacting the HR contact within the company if an employee files a complaint with them. Be aware that formal complaints are not necessary to trigger an investigation. Once a supervisor or HR contact is aware that possible misconduct has occurred, even if no complaint is filed, an investigation should be started. The more a company delays in addressing an issue, the higher the risk that they jeopardize their credibility with their employees.
Another key reason for prompt action is to determine whether any action needs to be taken prior to conducting the investigation. If there are any risks to an employee’s health or safety, paid suspensions or temporary reassignments may be necessary to provide interim relief during the process. It is important to remember to avoid taking any negative action against the complainant (such as an involuntarily transfer), as this may be seen as retaliation.
The more quickly the employer takes steps towards the investigation, the more likely they can preserve any relevant evidence and enable witnesses to more accurately recall the facts of what took place. If there are unavoidable delays in the process, document the reasons for such delays, and be sure to inform the concerned parties of the results once the investigation is complete.
Take proactive steps to avoid retaliation.
It is imperative that anyone involved in the investigation, including interviewees, supervisors, etc. should be properly informed that the employer will not tolerate any form of unlawful harassment or retaliation against the individual who made the claim or any of the interviewees who participated in the investigation. A statement that the employer will not allow retaliation to occur should begin well before any investigation. It should be included in your handbook as well as being talked about in any trainings on harassment that you may conduct. It should also be properly documented in each interview during an investigation that this statement was made. All representatives of the employer should be aware that this includes any behavior or conduct that could be viewed as retaliatory, regardless of whether or not that was the actual intent.
Make no promises of confidentiality.
Often, employees will make a complaint but ask their supervisor not to take any action at that point in time or ask for their name to be kept confidential. Typically, this is out of fear of retaliation. It is important that the supervisor or HR contact knows before any complaint is lodged that an absolute promise of confidentiality cannot be made. They should explain to any employee with such a request that the company will do everything possible to keep the matter confidential (on a need to know basis), but that the company faces legal liability if it doesn’t investigate issues as they are brought to management’s attention. This is the perfect time to reinforce the prohibition of retaliation within the company and inform the employee that they should report and retaliation immediately.
Having these general best practices in mind will help any employer to be better prepared should the day come that an employee files a complaint. Next month, in the second part of this series, we will walk through the actual steps of conducting an investigation.
