Jane Wipf Pfeifle, Editor
Lynn, Jackson, Shultz & Lebrun, P.C.

Vol. 12, No. 12
January 2008

POLICY POINTERS

Recipe for proper harassment policy

Jane Pfeifle

In looking over the past year, one area that really jumped out at your editor was the number of cases in which courts addressed an employer's policies, good and bad. And no policy was as frequently looked at or as important as the harassment policy.

As you stand on the precipice of the New Year, don't jump without being sure you know what's in your policies. If you aren't sure they're as good as they should be, ask your employment lawyer to review them.

Harassment policy ingredients

When assessing your harassment policy, make sure you do the following:

• Include all protected categories. We tend to call it a sexual harassment policy, but it needs to protect workers from harassment based on pregnancy, disability, race, religion, age, and national origin. If you haven't changed the name of your policy, do so now ― "Antiharassment" is fine.
• Include an antiretaliation provision. It's critically important to spell out in writing that you don't intend to retaliate. It's a strong message to your employees ― and to those who might be thinking about doing it.
• Include a flexible reporting procedure. Be sure employees have more than one place to report harassment. It's key that employees not be required to follow a chain of command when reporting harassing activities.
• Include a mandatory reporting requirement for supervisors or management. Require managers and supervisors to report any harassing activity they learn about. Remind them that if employees ask them to keep quiet about a harassment report, they must tell the employee they can't keep it a secret.
• Implement the policy. If employees don't know about the policy, it's hard to expect them to follow it. Post the policy in prominent places in the workplace ― the break room, by the time clock, on the bulletin board. If the current copy looks tattered and dirty, replace it. Appearances count. In addition, place a copy of your policy in the first paycheck of the year, and e-mail it out with a reminder that your company has zero tolerance for harassment. Keep track of all the ways you gave notice about the policy.
• Conduct training. Courts tend to be very impressed with employers that take extra steps to prevent harassment. Offering training to all employees is a critical and necessary component to an effective policy. Training helps employees see inappropriate behavior and gives them tools to express that the behavior is unwelcome and wrong. It also gives supervisors the tools to appropriately handle and report complaints.
• Make a hot line available. Not all companies are big enough for a hot line, but it's not a bad idea to have something similar. You can use e-mail. If employees can send you a note about what's bothering them, you can jump right on the issue.
• Conduct thorough investigations. Make it part of your policy that you will investigate complaints. When you do get a complaint, don't ignore it or suggest that the employee is overreacting or reading something into a harmless statement. Swift action is necessary. Allow for reassignment during the investigation. Don't discount how uncomfortable it can be for all employees.
• Take proper remedial action. Let employees know that after you have investigated the matter, you will take corrective action. Find a solution that meets the employee's concerns and your company's needs. That doesn't always mean termination, but it does need to be designed to reasonably prevent a repeat occurrence.
• Follow up on all complaints. Be sure that you follow up. This is part of the antiretaliation measures. Take the time to talk to the complaining employee or e-mail her on a periodic basis to be sure everything is on track. If the employee does quit unexpectedly, call right away and find out why. If the employee felt forced to quit, offer her job back, and take more steps to make it easy for her to return.

Copyright 2008 M. Lee Smith Publishers LLC

SOUTH DAKOTA EMPLOYMENT LAW LETTER is not intended to provide legal advice or opinions, but rather to provide information about current developments in South Dakota employment law. Questions about individual problems should be addressed to legal counsel.