It’s been several months since the groundswell #MeToo movement began, with many prominent figures being felled by sexual harassment allegations — and the effects extend beyond Hollywood and Washington DC. Many employers have seen increased complaints, but staffing businesses face additional practical and legal issues.
While there is no magic spell to protect your firm, there are some basic steps to get you started.
Take action. Remember that your staffing firm and the client company are most likely joint employers of the complaining employee(s) and both could be liable for sexual harassment. The employee(s) need only prove that both companies knew or should have known of the alleged harassment and failed to adequately address it. So don’t rely on your client to deal with the problem.
Take all complaints seriously. Employees who feel they are not being taken seriously are more likely to sue. A reasonably thorough investigation and documented findings can provide support for whatever decision you reach.
Consult counsel. Even if you have investigated harassment complaints before, in today’s climate it never hurts to get good legal advice. You might get some ideas that could afford you protection you might not have had otherwise.
Investigate. Take statements from the complaining employee(s). Be sensitive and empathetic, and ask openended questions that will get as much factual information as you can, including names of any potential witnesses. If possible, speak with those witnesses as well.
Include the client. Apprise the client of the allegations and try to work together to investigate and address the matter. Because contingent workers usually work on the client’s site and are supervised by the client, you may be limited in your ability to investigate or take remedial steps. If the client refuses to let you speak with its employees, see if you can get the client to commit to taking appropriate investigatory and remedial steps. Retain copies of any statements you do get. Unless you get contrary advice from counsel, provide your client with copies of any statements you obtain. Try to get notes or a report from your client as to steps it took to investigate/address the matter.
Provide accommodation. Offer the employee a new assignment or time off, especially if the alleged harasser is still working at the site. Comply with any other reasonable requests from the employee.
Be methodical. Decisions following an inadequate investigation (or none at all) can put other employees in harm’s way, thus incurring more liability. Conversely if the alleged harasser is disciplined or terminated without an adequate investigation, you might incur a defamation (or even a discrimination) claim.
Follow up. If appropriate, tell your employee the outcome. At the very least, stay in touch with him or her. If he or she is still at the same work site encourage him or her to let you know of any problems or concerns.
Don’t retaliate. Don’t subject the complainant to adverse treatment, such as termination, demotion, transfer to a less favorable assignment, insults or increased harassment. Retaliation alone is a separate basis for a lawsuit. It is not uncommon for an employee to lose on the harassment claim but win on the retaliation claim.
Keep tabs. Stay in touch with your assigned employees. Talk — and listen. Ask them how things are going. Ask them about any concerns they may have. Very often co-workers are not surprised to hear about harassment or other allegations by certain employees. They often know, long before you do, but may not feel comfortable coming forward. Encourage your employees to report any concerns, and make sure they know that your company will not tolerate any type of retaliatory action.
