Quid Pro Quo Sexual Harassment – Sexual Harassment Creating Hostile Work Environment – San Diego Employment Lawyer – 619.202.0264

Civil Rights Act specifically defines quid pro quo and hostile work environment sexual harassment as two separate causes of action. The statute explains that quid pro quo sexual harassment occurs when “(i) [s]ubmission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment” or “(ii) [s]ubmission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment.”

When making a claim of quid pro quo sexual harassment under the Civil Rights Act, the plaintiff must show “(i) that she was subject to any of the types of sexual conduct or communication described in the statute, and (ii) that her employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment.” The plaintiff in Champion v. Nationwide Sec., Inc. easily met the first requirement as she could show that she was a victim of rape by her employer’s agent. The court also decided that Ms. Champion’s case satisfied the second requirement in a rather unique way. The court noted that Ms. Champion’s refusal of her supervisor’s advances led to his decision to use violence. This violence, then, led to Ms. Champion’s constructive discharge.

The court said that the supervisor’s decision to rape Ms. Champion constituted the requisite decision affecting employment for a finding of quid pro quo sexual harassment. However, applying the same two requirements to the claim of Ms. Hartleip in Hartleip v. McNeilab, the court did not see a case of quid pro quo sexual harassment. Ms. Hartleip received unwanted romantic letters and attention of a sexual nature from a quasi-superior. Ms. Hartleip could not, however, establish a claim for quid pro quo sexual harassment because this quasi-superior was not in a position to affect her employment status and did not do so.

Whether under the broad interpretation of Title VII or the narrowly tailored requirements of the Elliott-Larsen Civil Rights Act, the quid pro quo sexual harassment claim is essentially the same. A plaintiff must demonstrate that her reaction to the complained of harassment concretely affected her employment. It is clear that both statutes intend to combat this blatant form of sexual harassment, each merely differing in its methods to meet this end.

Sexual Harassment Creating a Hostile Work Environment

Behavior that culminates in quid pro quo sexual harassment is rather obvious under both the federal and statutes. Sexual harassment that creates a hostile work environment is not as easily defined under Title VII. This type of sexual harassment can be more subtle and will not have the tangible results seen in quid pro quo sexual harassment cases. However, the courts again provide direction for detecting this type of sexual harassment.

The federal courts closely follow the guidelines issued by the Equal Employment Opportunity Commission (E.E.O.C.) in order to define hostile work environment sexual harassment. In the early case of Henson v. City of Dundee41 the court established the importance of the E.E.O.C. guidelines saying that in pertinent part they provide that Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment.

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Conduct Rising to the level of Sexual Harassment – Sexual Harassment Lawyer – San Diego Employment Lawyer – 619.202.0264

What is Sexual Harassment along the lines of Title VII and Civil Rights Act?

Title VII is meant to be interpreted broadly in its analysis in order to aggressively attack the problem of sexual harassment in the workplace. The statute itself provides the most basic of guidelines and the courts are left to fill in a more complete picture of actionable behavior. The federal courts begin with the concept that it is a basic violation of Title VII when “an artificial barrier to employment has been placed on one gender and not the other.” This barrier is explained as any sort of condition of employment that is placed on an employee because of gender. The courts thus require a “plaintiff [to] show that but for the fact of her sex, she would not have been the object of harassment.”

From this prima facie point, the plaintiff must distinguish her claim of sexual harassment as being either a claim of quid pro quo sexual harassment or hostile work environment sexual harassment. Quid pro quo sexual harassment is “harassment that involves the conditioning of concrete employment benefits on sexual favors.” The second type of harassment, hostile work environment sexual harassment, is that which does not “[affect] economic benefits [but] creates a hostile or offensive working environment.”

In the general provisions of the Civil Rights Act, sexual harassment is defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature.” Simply stated, a plaintiff must begin with a showing that the complained of conduct was sexual in some degree. After establishing the sexual nature of the harassing behavior, the plaintiff, under Michigan law, must satisfy delineated requirements to establish either a quid pro quo or a hostile work environment sexual harassment claim.

 Quid Pro Quo Sexual Harassment

On its face, Title VII does not distinguish between quid pro quo and hostile work environment sexual harassment; federal case law develops these distinctions and their application. The Supreme Court case Burlington Industries, Inc. v. Ellerth, clearly lays out the elements of quid pro quo sexual harassment. This case explains that for an employer’s conduct to rise to the level of quid pro quo sexual harassment a “tangible employment action [must] [result] from a refusal to submit to a supervisor’s sexual demands.”

A tangible employment action is any change in position, benefits, duties or even job loss. The Court in Burlington found that the employer’s behavior, which amounted to verbal hazing and unwelcome touching, did not amount to quid pro quo sexual harassment because the plaintiff, Ms. Ellerth, did not experience any change in her job for her refusal to submit to her supervisor’s advances.

The Court saw a clear example of quid pro quo sexual harassment in Barnes v. Costle, however, when the Environmental Protection Agency abolished Ms. Barnes’ position as a direct result of her refusal to engage in sexual relations with her male supervisor. The court found that the supervisor “solicited [Ms. Barnes]. . .[and] suggested that she cooperate with him in a sexual affair” in order to better her job position.

When Ms. Barnes did not cooperate, her job duties were diminished and her position was ultimately abolished. The behavior of the supervisor in this case presents a clear and concise example of quid pro quo sexual harassment. The federal courts conclude that for an employer’s actions to rise to the level of quid pro quo sexual harassment the behavior must involve the conditioning of employment on sexual favors, this conditioning must be based on the gender of the employee and culminate in a change in the benefits or existence of employment. Quid pro quo sexual harassment is a clear violation of Title VII and a court will readily find this type of behavior to rise to the level of inexcusable sexual harassment in the workplace.

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More American workers sue employers for overtime pay – Overtime – San Diego Employment Lawyer – 619.202.0264

Americans were pushed to their limit in the recession and its aftermath as they worked longer hours, often for the same or less pay, after businesses laid off almost 9 million employees.

Now, many are striking back in court. Since the height of the recession in 2008, more workers across the nation have been suing employers under federal and state wage-and-hour laws. The number of lawsuits filed last year was up 32% vs. 2008, an increase that some experts partly attribute to a post-downturn austerity that pervaded the American workplace and artificially inflated U.S. productivity.

Workers’ main grievance is that they had to put in more than 40 hours a week without overtime pay through various practices:

•They were forced to work off the clock.

•Their jobs were misclassified as exempt from overtime requirements.

•Because of smartphones and other technology, work bled into their personal time.

“The recession (put) more pressure on businesses to squeeze workers and cut costs,” says Catherine Ruckelshaus, legal co-director of the National Employment Law Project. If employers had to bear the actual expense of overtime, she says, they likely would have hired more workers in the economic recovery.

In response, employers are playing defense. They’re drawing clearer lines between workers and managers, and in many cases, reining in modern office privileges, such as company-issued smartphones and telecommuting. The upshot, in many instances, could be a very different American workplace.

Courts, meanwhile, must reconcile decades-old labor laws with ever-evolving technology. The spread of BlackBerrys and iPhones has many workers tethered to employers, for better or worse, even during off hours and vacations.

The controversy has reached the Supreme Court, but in a case involving an age-old profession: sales. Monday, the justices will hear oral arguments in a class-action lawsuit against drugmaker GlaxoSmithKline. Pharmaceutical sales representatives — traditionally classified as exempt from overtime pay — say they’ve been misclassified, a stance backed by the Labor Department in another case. Glaxo says the sales force clearly is exempt under current law.

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Understand Your Wage and Hour Rights – Overtime – Meal and Rest Breaks – San Diego Employment Lawyer – 619.202.0264

The U.S. Department of Labor estimates that 80 percent of employers are not in compliance with applicable wage and hour laws. As a California employee, you have the right to sue your employer if your employer withholds your wages, forces you to miss your breaks, or denies you compensation for work–related expenses.

If your employer has denied you your wages, including overtime, meal breaks and rest breaks, or have been denied proper wage earning documentation, you have the right to pursue litigation. You may also pursue litigation if your employer fails to reimburse you for required uniform and uniform maintenance, mileage, tools, etc.

In the state of California, your employer must authorize all your meal breaks and rest breaks. Further, your employer must pay you overtime and reimburse you for uniforms, tools, mileage, etc.

If you believe your employer is violating of any California employment and labor laws, and has violated the rights of other employees, you may be able to file a class action lawsuit.

If you believe your employer is violating any of your wage and hour rights, call us today at 619.202.0264 for a free consultation.

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THE CALIFORNIA SUPREME COURT MAKES LIFE EASIER FOR EMPLOYERS – Meal and Rest Periods – San Diego Employment Lawyer – 619.202.0264

The surprise of the recent snowstorm in Southern California was nothing compared to the shock created by the California Supreme Court in its ruling in Brinker International Inc., et al. v. Superior Court.  The California Supreme Court found that employers must only make meal breaks available to their workers, but are not required to “ensure that the employee does not work.”  This is a much needed victory for employers, and one that could significantly reduce the number of wage and hour lawsuits filed by employees.  In particular, the decision removes any obligation by employers to police whether their workers take breaks, and could potentially eliminate claims for off the clock time during meal breaks.

In 2008, the California Supreme Court agreed to hear the case to clarify the meal break standard after an appeals court denied a class action of approximately sixty thousand employees.  The case, for the most part, hinged on the interpretation of California Labor Law § 512, which requires employers to provide meal breaks to individuals working more than five hours in a day.  The employer, Brinker International Inc. (“Brinker”) maintained that it merely had to make the meal breaks available, and the plaintiffs argued that Brinker was obligated to make sure that its employees actually took these meal breaks.  In rejecting the plaintiffs’ argument, the Court held, in an unanimous opinion, “The difficulty with the view that en employer must ensure no work is done – i.e., prohibit work – is that it lacks any textual basis.”

The impact of this decision on wage and hour claims outside of California is difficult to predict.  While the California Supreme Court’s decision was based on its interpretation of the state’s Labor Law, counsel for Brinker has predicted that the Brinker International Inc. decision will have “significant implications” nationwide.  Since the question of whether employers are required to ensure that their workers take their meal breaks is not addressed by the Fair Labor Standards Act, or its regulations, its likely that courts in jurisdictions throughout the country will look to the case for guidance.

In the end, the Brinker International Inc. decision should not affect the manner in which businesses deal with meal breaks for their employees. The decision does not mean that employers do not have to pay employees for any time worked during a meal period.  Rather, the significance of Brinker International Inc. is that it places the burden on the employee to report any time he or she works during a meal break.

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Workers Share Experiences of Wage Theft – Overtime – Wages – San Diego Employment Lawyer – 619.202.0264

An employer’s underpayment or nonpayment of wages to workers who have earned those wages – has severe financial consequences for workers, according to a new report that puts faces on the rampant instances of wage and hour violations in low-wage industries across the state.

Ten Triangle-area workers share their own experiences of wage theft in a report co-released by the North Carolina Justice Center and the UNC Immigration/Human Rights Policy Clinic. In a series of in-depth interviews conducted from January to April 2012, participants from a diverse set of low-wage industries shared their stories, illustrating how workers – as well as their families and local economies – suffer when they are not paid earned wages.

“While each worker’s story is unique, common themes emerged from the interviews,” said Sabine Schoenbach, a Policy Analyst with the Workers’ Rights Project at the NC Justice Center and co-author of the report. “For all participants, wage theft created economic uncertainty, and even small wage violations had significant financial consequences. Moreover, serious barriers to redress, including the threat of retaliation, existed.”

This qualitative inquiry was designed as a first look at the impacts of wage theft on North Carolina workers, the conditions that make workers vulnerable to the severe consequences of wage theft, and the options – or lack of options – available to workers for redress.

Wage theft and low-wage work often go hand in hand, the report finds, and low-wage workers often have the most to lose. Underpayment or nonpayment of a single paycheck can translate to an inability to pay bills or afford basic needs like housing and sufficient food. Moreover, workers may choose to not report wage theft because they fear retaliation or have difficulty finding means of redress due to lack of information or adequate finances, the report said. Not one of the ten participants in the study had been able to recoup their lost wages at the time they were interviewed.

Examples of stories from the report include the following:

  • Carlos, who worked in construction, received only partial payment for his work, was denied his final paycheck at one job, and at another was forced to work overtime but was not paid overtime wages. After experiencing wage theft at multiple jobs, he noted that “one has to endure it because there is no other way out.”
  • Karen, a receptionist, had her hours cut from full-time to eventually only 20 hours per week. Having been on the edge of making ends meet for many years, the denial of a final paycheck after being laid off pushed her into the red.
  • Roger, who worked in the restaurant industry, said that most workers felt like there was “literally nothing you can do besides go to the labor board, which so far has—from my experience, from watching—has done nothing.”

While the report’s findings are not designed to be generalizable, the stories of these 10 workers demonstrate the damaging impacts of wage theft and the need for solutions. In order to protect workers, the report said, North Carolina policymakers should address obstacles to remedying wage theft, such as threat of retaliations and financial barriers to accessing redress. Stiffer penalties for violating the law would also help deter many employers from routinely stealing workers’ wages. Yet addressing wage theft in isolation isn’t enough. Low-wage work increases worker vulnerability and the severity of consequences when wage violations occur. In addition to ensuring that workers are paid for the work they do, the report said, policymakers should ensure that jobs pay living wages and enable workers to support themselves and their families.

“In the wake of the one of the worst economic downturns of the modern era, the fundamental contract between worker and employer—that the worker will be paid for the work performed—is being repeatedly broken,” said Professor Deborah M. Weissman, director of UNC’s Immigration/Human Rights Policy Clinic which co-authored the report. “At the same time, core labor laws are failing to protect many of the state’s workers. Enforcing laws to ensure that workers are paid for all hours worked and making sure that all workers have access to basic wage protections are policies that reinforce the value of work, help struggling families, and accelerate the economic recovery.

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Minimum Wage Increase Hits 10 States, Boosting Pay For An Estimated One Million Workers – San Diego Employment Lawyer – 619.202.0264

New Years Day will bring a small pay bump to some of the lowest-paid American workers, with 10 states set to hike their minimum wages for 2013.

Nearly a million low-wage workers will see their earnings rise because of the increases, most of which come courtesy of state cost-of-living adjustments that account for inflation. Washington State will once again have the highest minimum wage in the nation, at $9.19 per hour, after a raise of 15 cents for the new year. The other states raising their wage floors are Arizona, Colorado, Florida, Missouri, Montana, Ohio, Oregon, Rhode Island and Vermont.

The federal minimum wage remains $7.25 per hour, with no cost-of-living adjustment, and prevails in 31 states that do not mandate a higher state minimum wage. The last raise to the federal minimum came in 2009, after a series of increases signed into law by President George W. Bush.

For roughly 855,000 low-wage workers, the new state minimum wages will be higher than their current wage levels, translating into an immediate raise. EPI estimates that another 140,000 people will benefit indirectly from the wage hikes, due to pay scales being upwardly adjusted.

The raises will be between 10 and 35 cents per hour. Assuming workers maintain the same hours per week, that would translate into an extra $200 to $500 per year for minimum-wage earners — a not-insignificant sum for workers bringing home $15,000 per year or less.

Jen Kern, the minimum wage campaign coordinator at the National Employment Law Project, an advocacy group for low-wage workers, said the rising wage floors in those particular states are a reminder of the power of “indexing,” or the tethering of a minimum wage to an inflation index so that it adjusts annually. All those states, she noted, have indexing written into their minimum wage laws, with the exception of Rhode Island.

Kern said that without a cost-of-living adjustment, the minimum wage tends to erode every year in much of the country, making it harder for families dependent on low-wage earners to get by.

“As it becomes more clear that the American economy is being rebuilt on these service sector jobs, it becomes hard to dismiss the minimum wage as anything less than an urgent policy reform,” Kern said. “It’s harder to just say this is teens when you have fast food workers who look like adults, or home care and child care workers who everyone knows are not 19 years old.”

Not everyone agrees that cost-of-living adjustments or higher minimum wages in general are good policy. Michael Saltsman, research director at the conservative Employment Policies Institute, argued that businesses will end up cutting hours for workers to account for the higher wages. “That minimum wage earners will receive an hourly raise is clear,” Saltsman said, “but it’s not accurate to say that this translates directly to an annual increase in earned income” due to the possibility of lost hours.

Some workers, particularly in industries like fast food, don’t see wage increases until the minimum wage is raised through legislation. One McDonald’s worker reported that one of his two raises since 2006 came courtesy of a minimum wage hike.

Another McDonald’s worker, Aristides Burgos, said he earns $7.50 an hour, or a quarter above minimum wage, in New York City. The money is not enough to survive on in a place as expensive as Manhattan, he said.

“They have to pay us more, especially here in New York,” Burgos told HuffPost. “It’s still not enough.”

Last year, Democrats in the Senate and the House of Representatives introduced legislation known as the Fair Minimum Wage Act, which would have raised the federal minimum wage to $9.80 per hour after three years and indexed it to inflation. Those bills failed and are expected to be reintroduced in the coming Congress, although the Republican-controlled House is unlikely to pass an increase to the minimum wage.

President Barack Obama, while campaigning in 2008, pledged to increase the minimum wage to $9.50 an hour and index it by the end of 2011, “to make sure that full-time workers can earn a living wage,” as he said on his website. Obama ultimately failed on that pledge and hasn’t been vocal on the issue since his initial campaign. As EPI has noted, if the federal minimum wage had kept pace with inflation since its high in the late 1960′s, it would now be above $10 per hour.

If you would like to know whether your employer owes you any wages, please feel free to give us a call for a free consultation.

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Do I Receive Overtime If I work On Holidays? San Diego Employment Lawyer – 619.202.0264

Yesterday, I received the following question on my website:

“My employer wants me to work on Christmas Day and on New Year’s. Do I get to ask my employer to pay me overtime or double time if I work on the holidays?”

The short answer is no. Under California law, there is nothing that mandates an employer to pay an employee a special premium for work performed on holidays, Saturdays, or Sundays, other than the overtime premium required for work in excess of eight hours in a workday or 40 hours in a workweek.

Unless the employer has a policy or practice of paying a premium rate for working on a holiday, or an employee is subject to a collective bargaining or employment agreement that contains such a term, California employer is only required to pay employee regular rate of pay for all the straight time hours worked on the holiday, and the overtime premium required for work in excess of eight hours in a workday or 40 hours in a workweek. If the employee works only eight hours on the holiday, then he/she does not receive overtime compensation.

Feel free to give us a call at 619.202.0264 if you like to know more about your rights or get a free consultation. You may also visit our website at www.sandiegoemploymentlawyer.net

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Who Can Be Sued For Disability Discrimination – San Diego Employment Lawyer – Disability Discrimination Lawyer – 619.202.0264

The Equal Employment Opportunity Commission (EEOC) filed a disability discrimination lawsuit against both Staffmark Investment LLC and Sony Electronics, Inc., claiming that both companies violated the disability discrimination Act when they terminated Dorothy Shanks, an employee with a prosthetic leg, because of her disability.

According to the complaint, Staffmark, a staffing agency, assigned Shanks to work on a temporary job for Sony. All of Shanks’s supervisors were Sony employees. On her second day of work, Shanks was advised by Staffmark that she was being taken off the Sony assignment because “they” did not want anyone bumping into her. Staffmark purportedly assured Shanks that she would be placed on another assignment where she could sit. Staffmark never sent Shanks to another job assignment even though Shanks repeatedly called looking for work.

While employers can never isolate themselves from disability discrimination lawsuits, employers can lessen the chance of a suit if they keep the following things in mind about disability discrimination Act:

  • Employment agencies, such as Staffmark will not avoid liability for discrimination under the disability discrimination Act by claiming they are following an employer/client’s orders (in this case Sony’s orders), nor can employers (such as Sony) avoid liability by saying the employee was really working for the employment agency.
    • The disability discrimination Act applies to employers, including employment agencies that employ 15 or more employees during a 20-week period.
    • Both staffing firms and their clients have joint responsibilities under the disability discrimination Act to their contingent workers.
  • Many more employees will fall within the disability discrimination Act’s definition of disability (a physical or mental impairment that substantially limits one or more of the major life activities of an individual; a record of such an impairment; or being regarded as having such as impairment).
    • In this case, it is likely that Shanks physical impairment (leg amputee) would be considered a disability under the disability discrimination Act as it substantially limits that major life activity of walking.
  • Employers should be careful not to make generalized assumptions about whether an employee has a disability – an employee can be protected under the disability discrimination Act if an employer treats or “regards” the employee as if he or she has a disability, even if they do not. Gossip or presumptions about an employee’s medical condition can form the basis of a regarded as claim.
  • To be protected under the disability discrimination Act, an employee must not only have a disability that substantially limits one of life’s major activities, but he or she must also be qualified (meet the skill, experience, education and other job-related prerequisites) for the position.
    • For example, in this case, if Shanks presumably met the prerequisites for the position, the next step would be to see if she can perform the fundamental job functions – thus – it might be useful to see whether standing for prolonged periods is an essential function of this job. If so, the next step would be to see if Shanks could stand for a prolonged period, with or without an accommodation.

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Is Your Harassment Policy Up-To-Date? San Diego Employment Lawyer – 619.202.0264

When was the last time you looked at your harassment policy or the last time you thought about it? If you can’t remember, it’s time to dust it off and review it.

Once again, the number of claims filed with the Equal Employment Opportunity Commission (EEOC) rose in 2011. Although the EEOC will not publish the number of claims filed during the 2012 fiscal year until next year, it is likely that the number of claims being filed hasn’t lessened.

Within the last month, the EEOC has settled two large sexual harassment suits with Sparks Steak House and Albuquerque-Area IHOPs. In Sparks Steak House, the EEOC alleged that 22 male waiters were subjected to sexual harassment by one male manager over an eight-year period. Male-on-male sexual harassment suits are becoming more visible. The alleged conduct included groping, lewd sexual comments and inappropriate touching. The male waiters complained to their managers, but the harassment did not stop. Victims also suffered retaliation for their complaints by being given more difficult work assignments or being suspended. As part of the settlement, the restaurant must pay $600,000 in damages to the victims. Additionally, the restaurant must also establish a reporting hotline for discrimination, distribute an amended policy that prohibits sexual harassment and retaliation to all employees, conduct antidiscrimination training for employees, publish a public notice about the settlement and report all sexual harassment/retaliation complaints to the EEOC.

It is likely that 2013 will be another year of increasing discrimination claims. However, with this knowledge, you can prepare an ongoing defense by reviewing your harassment policies, procedures and management training. The EEOC is responsible to enforce federal laws that make discrimination against protected categories (such as race, color, religion, sex including pregnancy, national origin, age 40 or older, disability or genetic information) illegal. Retaliation against an individual for reporting harassment or discrimination based on a protected category is also illegal. In addition to federal laws, you should also be aware of state and local laws. For example, in Michigan marital status and height/weight are also protected categories. These categories should be incorporated into your harassment policy.

In addition to the protected categories, there are several other components that should be included in a harassment policy. A harassment policy should include:

  • To whom the policy applies;
  • A prohibition of harassment;
  • A definition of harassment;
  • Complaint procedures (including multiple people to whom the victim can report);
  • Investigation procedures; and
  • Prohibition against retaliation.

Once you review your policies to make sure they are current, look at your procedures for handling an investigation. Complaints should be handled in a timely manner and by an investigator who has no stake in the outcome. You will receive the best information and evidence if you respond early. You should treat every investigation as though it might end up in court. This means you need to document everything.

As you begin your investigation, talk to the victim; explain that the investigation will be as confidential as possible, but that by necessity some information will be shared with the accused and the potential witnesses. Next, create a witness list. As you talk to the witnesses, you should inform them that they will not be retaliated against for participating in the investigation. As you conduct your interviews, look for inconsistencies. If inconsistencies develop, you may have to make credibility determinations. Once you complete your investigation, there are several more steps to take, including:

  • Make a decision (if it is a tough one, consult counsel);
  • Inform the parties of the outcome;
  • Take corrective action; and
  • Summarize the results of the investigation.

If you find that some sort of harassment did occur, you should follow up with the victim later to determine how things are going and to make sure that no retaliation occurred. Finally, you should consider whether to provide training to your employees to make sure that they understand your harassment policy and that harassment or discrimination of any kind will not be tolerated.

Whenever you do an investigation you should talk to us. In addition, we recommend that you review and distribute your harassment policy annually. If your policy needs to be updated or you would like harassment training, we can help.

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