The HR Cafe

We welcome complaints. Especially complaints like these.

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Dear HR Executive:

Some employees make serious complaints, and others make ... well, other kinds of complaints.
Here are some of the latter, assembled by CareerBuilder from a recent survey of HR managers:

• Co-worker is too suntanned.
• Co-worker smells like road ramps.
• Co-worker is too reminiscent of Bambi.
• Co-worker is personally responsible for a federally mandated tax increase.

And my personal favorite:

• Co-worker's body is magnetic and deactivates other workers' magnetic cards.
  

What's the strangest complaint that's ever crossed your desk? Post it in the comments.

Dave Clemens
Editor, HR Cafe Newsletter

 

Harassment-in-the-workplace claims: who counts as a manager?

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Dear HR Executive:

You know that in cases of sexual harassment in the workplace, an employer must take action when a management-level employee has enough information to infer that harassment is going on. But what exactly is a “management-level” employee?

A federal appeals court has given guidance on that point, and HR pros should pay attention. (Huston v. Procter & Gamble Paper Products, No. 07-2799, 3rd Cir., 6/8/09).

Supervisor isn't “management” in claims for harassment in the workplace

The court analyzed a case in Pennsylvania in which a factory technician sued for sexual harassment in the workplace. She claimed the company should have known she was being harassed because two supervising technicians were aware of the harassment.

But the court said these supervisors didn’t represent “management level” for the purpose of putting the company on notice of harassment.

The court ruled that in the harassment context, “management level” means one of two things:

1. The employee has general managerial duties, which include responding to sexual harassment. This would apply to senior executives and such people as department or plant managers.

2. The employee is employed specifically to deal with harassment. This would include HR and employee relations personnel.

The court explicitly left out what it called “mere supervisory employees in the labor force,” such as team or project leaders, who lack “a mandate generally to regulate the workplace environment.” When such people know about harassment, the courts won’t assume the company knew and should have acted.

This decision doesn’t mean you should relax your vigilance against harassment in the workplace. But it does mean you won’t be blindsided as easily by employees claiming you should have known what was happening to them.  

Dave Clemens
Editor
HR Café Newsletter

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

Sexual harassment: "You probably did it. That’s what men do.”

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Dear HR Executive:

When you field a sexual harassment complaint, it can feel like you're walking a tightrope. Often, you’re dealing with an emotional complainant and an indignant accused – both of whom swear their version of events is the true one and the other is a big liar. It’s easy to get sucked into the story of one party or the other – especially that of the unhappy victim. But only trouble is ahead if you do.

Boys will be boys?
Case in point: In Sassaman v. Gamache, a female employee accused a male colleague of sexually harassing and stalking her. The man’s boss told him that if he didn’t resign, he’d be fired. 

The employee resigned, but later sued for sex discrimination. He recounted a climactic conversation in which the supervisor told him: “I’m afraid she’ll sue me. And besides, you probably did what she said you did because you’re male and nobody would believe you anyway.”

In court, the employer claimed the supervisor was only giving his opinion as to what other people thought, not justifying the forced resignation. But a federal appeals court thought otherwise, and allowed the male employee’s case to go to trial. The court said the supervisor defended his decision to side with the female employee “by pointing to the propensity of men, as a group, to sexually harass women.” This made it look like the man was forced out because of  “invidious sex stereotypes,” the court said.

“Guilty until proven innocent”
The court wasn’t sympathetic to the employer’s argument that it feared a lawsuit from the female employee if it didn’t get rid of the man. “Title VII requires employers to take claims of sexual harassment seriously,” the court said. But “it also requires that, in the course of investigating such claims, employers do not presume male employees to be ‘guilty until proven innocent.’ ”

That puts HR right back on that tightrope. Assuming a harassment allegation is male-on-female (still by far the majority of cases), you’re delinquent in your duty if you lean toward “he said.”  But if you lean toward the “she said,” you risk discriminating against the man as a man.

What’s the solution? A thorough and impartial investigation. In this case, the court was clearly swayed by the fact that the employer didn’t do such an investigation. The employer made “minimal, if any” efforts to verify the female employee’s allegations, the court said.

Although the supervisor did refer the matter to the local sheriff’s office – which found no indication of criminal activity – he didn’t investigate. Nor did he have his assistant look into the allegations. And he didn’t refer the case to the employer’s Equal Opportunity Officer. 

So although there were plenty of people around who could have investigated the female employee’s allegations – as well as the man’s counterclaims – nobody did.  And the employer ended up holding the bag. 

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

Free training module: How to handle complaints

Click here to view a  9-minute rapid learning module for free: Handling Employee Complaints: What Every Manager Must Know  Act now. The link will expire in 10 days.

Dear HR Executive:

Business 21 has been developing a series of rapid learning modules. We call them Quick Takes. They're short (between 6 and 10 minutes). They're meaty. And, based on the hundreds of product evaluations we've been getting, you'll love them.

We'd like to let our HR Cafe readers view a few of them for free. Here's the first one: Handling Employee Complaints: What Every Manager Must Know. Just click on the link and it launches automatically on your computer.

What's it about?
It's a compliance module specially designed for managers and supervisors. When employees complain about harassment, unfair pay, discrimination or whatever, it's almost always to their direct boss. But do your managers know exactly what to say and do? Are you concerned they might not recognize the seriousness of a complaint? That they might say something that could be used against your company later in court?

You should be, because supervisors mishandle complaints all the time. Show this nine-minute program to every manager in your company and you'll have sleep-at-night insurance that they won't mess up and trigger a lawsuit.

Here's what just a few HR executives have said about our Quick Take programs:

• " I've never seen any product that's as meaty and real-world as Quick Takes. I see all kinds of  training materials that are academic and theoretical. The Quick Take learning modules in the HR Cafe are really practical. They talk about problems you're having right now, and tell you how to handle them." - Diane L. Parker. International Recruiter, Samaritan's Purse.
• “This learning module was better than I expected. I will use it with senior managers at our work site. The Quick Take format is great – I like that it’s short and probing.”  - Debra Koch, The Boeing Company.
• "The Quick Take format is great for those of us with really busy schedules and limited free time. I can learn something new in only a few minutes." - Karen Morton, Town of Ledyard, CT.

Click here to view Handling Employee Complaints: What Every Manager Must Know. The link will expire soon, so act now.

Stephen Meyer
B21 Publisher

Complaint investigations and employee hotlines

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Dear HR Executive:

The June 2006 Supreme Court ruling on retaliation (Burlington Northern Santa Fe Railroad v. White) has a lot of people concerned about lawsuits. A recent article in B21's newsletter highlights some of the things companies are doing, should be doing, and should perhaps NOT be doing, to prevent retaliation claims. Read on.

Ensuring complaints stay confidential

Are you confident that any of your employees would feel comfortable coming to you with concerns about discrimination, harassment or fraud?

If you’re not, you’re not alone. That’s why many employers have turned to confidential employee hotlines as a tool to reassure workers their tips and complaints will be dealt with – and they won’t be made to suffer for stepping forward.

Despite the best efforts of many HR managers, employees have reason to fear retaliation. Too frequently, individual managers have leaked information about employee complaints to the objects of the complaints.

Unfortunately, company-run hotlines don’t seem to be immune from these problems either, even when they promise confidentiality.

In one high-profile case, a former administrator of DaimlerChrysler’s internal hotline said she was fired after complaining that corporate security people tried to identify several hotline callers. One of these callers was fired, the ex-exec contended.

Web complaint sites
One possible solution to the confidentiality problem: turn over your hotline to one of many outsourcers, who will often administer a confidential complaint website, too. Some prominent outsourcers include The Network, EthicsPoint and Wackenhut.

Outsourced hotline providers promise to:

• ensure that all complaints are taken, and that nobody with an agenda blocks out selected ones
• hold complainants’ identities, when given, in strict secrecy, and
• use encryption technology that prevents even the provider from tracking complainers’ computer addresses.

A caution: Typically, outsourced providers will promise confidentiality only for calls or web messages that are placed from outside the company’s phone or computer system.

Stephen Meyer
B21 Publisher

RISK-FREE TRIAL -- ONLINE TRAINING LIBRARY FOR HR AND MANAGERS: Want to learn about an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Cafe Training Center Online. It's a powerful resource that allows HR executives to deploy high-impact training modules effortlessly throughout their organizations. Want to see what it's about before you sign up for a trial? Check out just one program from the huge library of content in the HR Cafe. It's a six-minute "Quick Take" training module called "Why 95% of Training Doesn't Stick."

Complaint Investigations

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Dear HR Executive:

I'll never forget the first complaint investigation I ever conducted. Here's an article from Human Resources 21 that explains how to do it right.

Setting the right tone during a complaint investigation

Key: Take every complaint seriously

You know that when conducting complaint investigations, it’s important to set the right tone.

After all, employees involved in an incident are already a bit sensitive and are prone to call the first lawyer they see on television. Remedy: Show workers that you’re taking the matter seriously and maintaining confidentiality.

Here’s how you can set the right tone during a complaint investigation, according to employment-law expert Daniel Westman.

1. Find a private, secure location
Obviously, you don’t want to conduct your interview of a worker in a visible location within earshot of other workers. And you don’t want to make the interview threatening.

But Westman said he’s seen many lawsuits where an employee thinks he’s being locked in a room and not allowed to leave.

Instead: Conduct the interview in a private location such as a manager’s office or a conference room.

If the incident was violent, keep the location of the interview away from any workers deemed hostile by the complaining worker.

2. Sign their testimony
Have employees either write out or type up their testimony – and then sign it. (You may want to include language that they are signing under oath.)

3. Communicate completion
Follow-up lets workers know you took the matter seriously.

You don’t have to tell them the outcome of the investigation. Inform them in writing or through e-mail that the investigation is complete and that appropriate action has been taken.

Adapted from Westman’s Webinar, “Complaint Investigations: How to Be Thorough and Avoid Legal Pitfalls, 6/15/06.

RISK-FREE TRIAL -- ONLINE TRAINING LIBRARY FOR HR AND MANAGERS: Want to learn about an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Cafe Training Center Online. It's a powerful resource that allows HR executives to deploy high-impact training modules effortlessly throughout their organizations. Want to see what it's about before you sign up for a trial? Check out just one program from the huge library of content in the HR Cafe. It's a six-minute "Quick Take" training module called "Why 95% of Training Doesn't Stick."