Time & Attendance
By James Kingma
Apr. 28, 2010
One of the most emotionally charged situations you can encounter with a customer is when one of your employees complains of being sexually harassed by a customer’s employee or employees.
This can and does happen in a wide variety of situations. Common situations would include those in which your employees are working on a project at the customer’s location or under a customer’s supervision. In the staffing industry, this is a very common problem. By definition, temporary employees are always working under customer supervision. An isolated sales call by one of your employees also can result in a complaint when the customer’s representative goes a bit too far in expressing his or her admiration for your employee.
If your employee is a visitor at a customer’s work site, one of your customer’s employees may consider your worker to be a potential target: There is a misconception that a non-employee is not protected by the anti-harassment laws. Very often, the customer—the alleged harasser’s boss—may feel threatened about potential liability and may attempt to take control of the situation in one way or another. You, on the other hand, will want to handle the situation properly without unnecessarily upsetting the customer.
Although the customer does have substantial responsibility in following through with an investigation following the complaint, you should maintain control over certain procedures, such as the intake of the complaint, reporting the complaint to the customer, making sure your employee is provided with all of the necessary legal protections, and that your other employees are protected from potential harassment. Consideration should also be given to potential conflicts of interest with the customer. A typical example would be the tendency of uninformed customers to basically ignore the complaint, thinking, “This is your employee and your problem.”
The following is a step-by-step guide on how this procedure should be handled by your company and the customer:
1. Your employee, your procedure: If you want to maintain your status as an employer—and most customers would expect you to do so—it is very important that your employees are aware of and follow your company’s procedure for incidents of alleged sexual harassment. Most important, they should understand the person or persons to contact about the complaint.
This procedure is an important and mandatory legal requirement that should be in included in your sexual harassment training. There are various methods of communicating this information to your workforce, and the procedure should be carefully developed by your HR and/or legal departments. The procedure should be posted at the customer location where your employees have regular access. The people responsible for obtaining the complaint information from the employee should be trained members of your staff or, in some cases, a trained on-site supervisor.
2. The complaint: One of your most important legal responsibilities as the employer is to obtain information on the allegations from the employee. It is also in your best interest to know about the allegations so that you can ensure, within your ability to do so, that steps are being taken in accordance with legal requirements.
Although at first most employees speak to a supervisor about the incident, it’s preferable that the employee be requested to prepare a written complaint. If the employee is not willing to do that, the person receiving the complaint should take notes and, time permitting, prepare a written report.
Putting the report or complaint in writing will preserve all the information available at the time and also provides for an easy way of presenting a written account to the customer. The written report or complaint should include all relevant details, including identification of the alleged harasser, when the harassment occurred, a detailed description of the harassment, how many times it occurred, whether the complainant objected to the behavior. Most important, it should indicate whether there were any witnesses to what happened and identify them. You should thank the employee for coming forward and inform the employee that it will be necessary to disclose the employee’s identity and the identities of any witnesses when you report the complaint to the customer.
After making a complaint, some employees will request that you not take any further action. You should let them know that you are legally required to take further action and have no choice but to report the complaint to the customer. From a practical standpoint, assurances of confidentiality usually prove to be impractical as the case moves along and should be avoided.
Please keep in mind that whether or not the behavior that your employee experienced actually constituted sexual harassment is not an issue on which you should pass judgment. If the employee believes that there was harassment, you have a duty to promptly report the complaint to the customer, regardless of the nature of the complaint or your personal evaluation of it. It is then the customer’s responsibility to determine whether the alleged behavior constituted sexual harassment and to take whatever action may be appropriate.
3. The customer: After you have received all relevant information about the complaint and made sure that information is included in written form, the allegations should be promptly referred to an appropriate customer representative.
Since the alleged harasser is a customer’s employee, the customer is legally obligated to make the investigation. The law requires that the complaint be reported at the earliest possible opportunity, which should usually be on the same day you receive the complaint. The person you choose to contact should be considered carefully and should be in a position to both understand the implications of what has occurred and have the authority to take appropriate action. Appropriate contacts could include a representative of the human resources department, an officer or a manager. When in doubt, in most cases, the HR supervisor should be contacted.
The person to whom you report the complaint should not be the alleged harasser or be implicated in any way in the harassment that’s been alleged. When you report the complaint, you should ask that the customer investigate, take whatever corrective action is necessary and keep you informed. The law requires that prompt corrective action be taken if warranted. If it appears that the customer is dawdling, you should discuss that issue with the customer.
4. The complaining employee: Any action that adversely affects the employee after the complaint is made could be considered retaliation for having filed the complaint. Retaliation is strictly prohibited and can be the basis for a cause of action in itself, regardless of what actually happened.
The complaining employee has every right to continue working at the customer’s location if the employee chooses to do so. Do not suggest, request or require that the employee accept another work assignment. You should ask the employee to notify you immediately if the harassing behavior continues. If the employee decides to leave the assignment, you should attempt to locate another assignment for the employee on a priority basis and, if possible, avoid any discontinuation or reduction in salary. It would also be helpful if the employee would confirm in writing his or her wishes to leave the assignment. This could be used to protect you from any future allegations that the employee was unwillingly removed from the assignment.
There is one exception to this approach. The customer may have a legitimate concern about having the employee continue to work at the same location during the course of the investigation. The employee may be working in a gossip mill or in other adverse circumstances.
It may be possible to avoid the ramifications of retaliatory action if the employee is put on paid leave with the expectation of returning after the investigation is completed. However, the risk with that approach is that the employee may feel victimized by being made to leave, will not return and may be more inclined to file a discrimination charge with the Equal Employment Opportunity Commission or a state agency, regardless of the result of the investigation. If it is necessary for the employee to leave the location, it would be only fair for the customer to reimburse you for the compensation paid to the employee during the leave.
5. Other employees: If there are other employees who are working in the same area with or for the alleged harasser and who may also be subject to sexual harassment, you should discreetly check with them to determine whether they are encountering any similar problems. This does not mean that you should relate that a complaint was made. A simple inquiry about how things are going should be sufficient. These discussions should be documented.
6. Conflicts of interest: Under EEOC regulations, if you accede to a request by the customer to take adverse action against the employee—which is considered retaliation—you will be considered as guilty as the customer. If the customer takes or proposes to take adverse action against the complaining employee, you should attempt to educate the customer about retaliation and to convince the customer that such actions are dangerous and unwarranted.
Another way to prevent this from happening is to put the customer’s legal representative in touch with your legal representative. Attorneys and other advisors will readily recognize the danger of retaliatory action and may be in a good position to exert their influence.
If all else fails, you should make it clear to the employee that you were not responsible for the action being taken and that in fact you objected to it. You should also inform the customer in writing of your concern about the adverse action and make it very clear that you disagreed with it. A letter may be very helpful as evidence to demonstrate that you had no part in the retaliatory action.
You may think that the customer can be trusted and that a letter is an unnecessary formality. However, when the customer is being investigated, the customer and those of his employees who are responsible for the retaliation will have a strong motive to place the blame on you. You should also seriously consider discontinuing service to such customers. A customer that, in spite of your warning, takes retaliatory action is reckless, uninformed or both.
Carefully review all customer contracts to avoid accepting responsibility for the customer’s illegal actions. It is very common for contracts to include provisions in which you agree to “defend and indemnify” the customer against any liability arising from the presence of your employees at the customer’s facility. Such language could be interpreted to extend to sexual harassment complaints by your employees against the customer. It may seem absurd and unfair, but in many states, those provisions are enforceable. Rather than just accept such contract language, you may be able to negotiate an agreement at the outset of the relationship by making it clear that both parties assume responsibility for the legal consequences of their actions.
7. Follow-up: When the customer has completed the investigation and determined what disciplinary action, if any, is necessary, it is important to provide the complaining employee with a status report. It would be appropriate for the customer to provide this information directly to the employee. If the customer requests that you do so, you should simply report the information the customer gives you, and explain to the employee that you were not involved with and had no control over the investigation or the determination of what action should be taken.
If the employee disagrees with the investigation’s result, she or he should be referred to the appropriate representative of the customer for further discussion. If you believe that the customer did not take the allegations seriously, you should seriously consider severing your ties.
8. Records: A copy of the complaint, your notes and any other written information regarding the alleged harassment, its investigation and its disposition should be kept in a separate file. Do not record any information regarding the complaint under the employee’s employment records. It may also be a good idea to forward the file to your attorney or your legal department to preserve attorney-client privilege.
A final thought: These recommendations for dealing with your customers are intended to protect you from potential legal liability. They do not take into consideration your relationship with the customer and other intangible factors. If your attorney and the customer’s attorney are cooperating, or if you are confident that the customer will take responsibility for the actions of an employee, some of these formal protective measures may be unnecessary. There is no doubt that allegations of sexual harassment across company lines can strain relationships. It is wise to keep a close eye on these situations and hope for the best, but plan for the worst.
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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.
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