Federal and state discrimination laws have expanded, giving employees more opportunities to challenge employer actions. This is scary for employers!
As an employer you don’t want to shrug your shoulders and say you will “roll with the punches” – not at the high cost litigation comes at. Each time an employee takes their employer to court, the company is at risk for not only monetary losses but also damage to their reputation.
So what do you do? Take proactive measures! I’d like to think that for the most part your employees will not pursue litigation unless they truly believe they have been wronged in some way. So how do ensure that everyone treats each other with respect and follows the rules? BTLG Attorneys at Law recommend six measures to help you stay on track:
1. Have a Good Code of Ethics
This should include policies outlining anti-harassment, anti-discrimination, etc. However, it’s not good enough to just write and distribute your policies, you also need to make sure that your employees know and understand them and attest to them. This can be done via code of ethics training with a compliance policy certification system built into it.
2. Communicate a Zero Tolerance
Let employees know that your company has a zero tolerance policy for any behaviors that would constitute harassment as outlined in your code of ethics handbook. You can and should communicate this message via various channels: executives, awareness campaigns, policies, etc.
3. Make Sure Employees Understand Your Policies
Let’s say you’ve written the appropriate policies that if followed will mitigate employee litigation. You’ve also distributed code of ethics training and your employees have attested to it via a compliance policy certification system… but incidents of misconduct are still occurring! Because your employees have attested to the training, you should be covered, but what if it’s not just a rogue employee? What if everyone has attested to taking your training, but multiple people are still doing things clearly in direct violation of your polices? In this situation, if you have an integrated governance, risk and compliance platform I would recommend running a report against your training to see if there are certain questions that seem to be missed frequently. This can help you identify questions that may be worded in a way that is hard to understand, so that you can quickly make changes to improve employee comprehension.
4. Have a Clear Way for Employees to Report
While the goal is to have less issues and less employment litigation, it’s important to have an outlet available to your employees in the event that they do need to report an incident. Having a third-party hotline is a great solution for this, because employees feel more at ease that they will not be retaliated against. BTLG suggests going as far as to “clearly define the steps an employee should take when reporting.”
5. Have a Written Equal Employment Opportunity Policy
Put in writing that your company does not discriminate against race, color, religion, sex, age, disability or national origin in its employment actions (i.e. hiring, firing, promoting, etc.) A good rule to follow here is limiting the number of people making these decisions to people you know will follow the rules – its important also to note, that favoring the “protected classes” could also be considered discrimination.
6. Provide Job Descriptions for Every Position
In the event that you have to fire an employee, you need to be able to prove that you had probable cause to do so. The easiest way to do this is to have written documentation on hand that the employee has read and signed off on detailing the responsibilities of their position. Then if/when an employee has to be let go for failure to perform the responsibilities of their job, you can pull out the signed off on job description as back up support for your decision.
If you have the measures above in place and you still find yourself with disgruntled employees, the Commission advises companies to next try and settle the issues in-house before going to court. Remind your employees that employment litigation is costly not just for the employer, but the employee as well. Let them know that you can move forward with an in-house dispute resolution process that is fair to both parties. To help you with this the Commission provides a list of quality standards for workplace arbitration. However, again, if you follow the steps above outlined by BTLG and have your code of ethics training and a compliance policy certification system in place, instances where you need to move to in-house dispute resolution should be few and far between.