Matt Lauer, Charlie Rose, Harvey Weinstein, Bill O’Reilly, Who’s Next?—Are you prepared for harassment allegations in your workplace?

December 1, 2017

Sexual harassment in the workplace is not new.  However, the rash of recent cases reported in Hollywood, Corporate America, and our Federal Government are shining a new spotlight on the issue.
As an employer in Wisconsin, here is what you need to know to avoid being the next headline:

All allegations must be taken seriously.  Employers must commence an investigation immediately.  In the event of delay, the burden is on you to explain why the delay occurred.  Further, don’t wait for a complaint—if management is aware of inappropriate behavior, that alone legally requires an investigation.

The investigation must be documented. Your investigation may be challenged later if litigation ever ensues so you must preserve your documentation of the entire investigation process.  This includes detailed allegations, witness identification, scope of investigation, scheduling, interview notes, credibility determinations, etc.

The investigation must lead to a conclusion.  You must decide “Is there sufficient evidence to support the allegations?”  This is not the “beyond a reasonable doubt” standard that we have in criminal trials.  You, as an employer, are the judge and jury. You must decide if there is evidence to support the allegations.  To say simply “we don’t know what happened—it is a he said/she said” is an unacceptable conclusion.  If you actually knew what happened, you would not need an investigation in the first place!  The swiftness in which the investigation occurred in the NBC/Lauer case has set an unprecedented standard for speedy decision-making that will set a new bar in these types of investigations. Employers must be ready.

Use the attorney-client privilege to your advantage.  Experienced legal counsel can assist you in managing the investigation so that you can make sure nothing is missed.  In addition, without the attorney-client privilege, all internal discussions regarding the matter could later be made public through litigation.  Conversations between Human Resources and management will not be considered confidential unless an attorney is present.  This means these conversations, emails, etc., can be used against you in litigation down the road.  In these delicate cases,  the wrong comment made or email sent can drastically change a case for the worse.  Don’t let that happen to you.

Conduct workplace harassment training for your management. Management training should be different than non-management training.  Managers are held to a very high standard under the law—they MUST (not may) report anything that could give rise to a harassment claim to Human Resources.  It does not matter whether there is an official “complaint” or not.  From a legal standpoint, if management knows about the conduct and takes no action, the company is liable and the manager is subject to personal liability as well.  Managers are often surprised to learn that they might have a responsibility to report conduct that takes place outside the workplace.  Good management training will minimize your risk in these cases!

Takeaway:  We are here to help you with both the investigation process and sensitive management training in this area.  Do not be the next headline!  Call anyone in our Employment, Benefits & Labor Relations group to assist you!

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This document provides information of a general nature regarding legislative or other legal developments, and is based on the state of the law at the time of the original publication of this article. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed. You should not act upon the information in this document without discussing your specific situation with legal counsel.

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