Here are five employment law questions on five unrelated topics. They are answered by attorney and employee relations consultant Jodi Eisenstadt.
1. To tell or not to tell
How should the manager respond when a staffer brings in information about a legal violation in the office and asks the manager not to tell anybody?
That’s a common problem for managers who have come up through the ranks, Eisenstadt says. They have developed friendships with their former peers, and it’s hard to alter those relationships.
But friendships have to be kept secondary to running the office. If a staffer reveals something that requires action, the information has to be shared.
The safest route is explain the lay of the land to the former peer: “I’m glad you want to tell me about this. And I want to hear it. But as the manager, I have a duty to act on certain issues. I’ll keep the information as confidential as possible, and I will always look out for your best interest, but you need to be aware of that.”
She adds that some managers successfully avoid that situation by setting up a procedure for staff to report issues without having to identify themselves.
2. A complaint by any other name
Does there have to be an actual complaint before the office is required to investigate an issue?
No. Employees don’t always say “I have a complaint.” And they don’t have to. “The law doesn’t expect them to use special code words.”
Any indication that something wrongful has been done puts the office on notice, Eisenstadt says. Consider it a complaint. It has to be investigated.
Suppose the manager hears the female staff laughing about how the senior partner always checks out their legs. Count on it that one of those staffers doesn’t think it’s all that funny.
The same holds true when the information comes from somebody other than the victim. Staffer A might say that Staffer B hates coming to work because the senior partner makes lewd comments to her. Or a vendor might mention seeing a lawyer acting inappropriately toward a female staffer.
That’s complaint enough. Investigate.
3. The accommodated staffer
What should the manager tell staff when they ask why one person is getting special consideration?
Not much.
Even if the favored staffer tells the others that the consideration is because of an illness or disability, the manager has to keep the information confidential.
That can get touchy, particularly when the staffer has been given some privilege such as leaving early on Fridays or coming in an hour late in the mornings. But the other staff have no right to that information.
If someone asks, “What’s wrong with Staffer A? Why all the absences?” the best response is no more than “I appreciate your concern, and yes, I am aware of the absences.”
And if the staffer presses, say only “it’s a human resource issue.”
4. The harasser from outside
Is the office responsible for harassment from an outsider such as a client or a vendor?
If an employee is put in harm’s way because of the employment, yes, the office is responsible and has a duty to protect that person. To do nothing “is to allow it to happen,” Eisenstadt says.
If a client makes sexually offensive comments to the receptionist, the office is obliged to put an end to the situation.
The lawyer might need to talk with the client about the inappropriate behavior. At worst, the lawyer may have to terminate the client relationship.
“But the office has to fix the problem,” Eisenstadt says.
5. How to dodge retaliation claims
How can the office avoid a retaliation claim when an employee’s sexual harassment complaint is found meritless?
That’s a sticky situation, because the office can be guilty of retaliation even when a complaint turns out to be unfounded, Eisenstadt says.
Retaliation protection therefore has to start at the very moment a complaint is made. She makes these recommendations.
• Hear out the complaint and show an honest interest in the employee. Make it clear the office takes the complaint seriously. At the same time, make it clear that the staffer is protected from retaliation.
A lesser response is apt to make the staffer view every bump from that point on as retaliation. It’s also evidence that the office had a negative attitude toward her from the start and retaliated because of it.
A good script: “This is a serious allegation, and I will make sure it’s investigated. You need to know that you are protected from retaliation. If you feel you’re being retaliated against in any way, please let me know.”
• Investigate immediately. Shove it aside, and there’s evidence that the office didn’t care.
What’s more, the longer the delay, the longer the employee can stew over the situation and think the office is working against her. There’s less chance she will accept a decision not in her favor and a greater chance she’ll look for evidence of retaliation.
• If the decision is that there has been no harassment, don’t just say “We didn’t find any harassment. Go on as you were.”
Get the two people together and discuss the matter and show concern for both sides.
It’s essential “to clear the air” and end the tension, Eisenstadt says. Fail to do so, and the staffer can feel embarrassed, let down—and ready to head down to the EEOC office.
• Thank the staffer for bringing the matter to the office’s attention and tell her not to hesitate to report any complaint in the future. Phrase it as “If there is ever anything else that concerns you, please talk to us. You did the right thing. We appreciate your coming forward with your concerns.”
She should leave thinking “I can raise something again, because nothing bad is going to happen.”
• For at least the next three months, meet periodically with the staffer to make sure there are no more issues. Ask “How is your relationship with A going? Is there anything you want to share? Is there anything more I can do to improve that relationship?”
Meet with the accused as well. Thank the person for cooperating with the investigation and show support for the difficulties the matter may have caused.
Also emphasize that the office has to avoid any semblance of retaliation. An accusation of sexual harassment is “horrendous” to deal with, she says. “That person’s life and career are on the line. So unconscious retaliation is a potential.”
Document all the meetings so the office can show it did everything possible to prevent retaliation.
