Limiting Employer Liability – Part II

By Frank Thompson on Apr 21 in Employment Practices.

by Frank B. Thompson, CPCU
President PT Risk Management

In the last issue we wrote about some specific guidelines to have your company be a harassment free workplace. And we wrote about the female employee who came to the owner with a complaint about a supervisor who was watching pornography on the company’s computer and leaving the screen for all to see. How should the employer react? And what steps should be taken?

The complaint must be taken seriously and needs to be investigated thoroughly and with discretion. Failure to act or react quickly can greatly increase your company’s liability, but acting quickly without thinking can also be a detriment.

Employees that have experienced harassment may often understate matters, due to embarrassment or fear of retribution. Therefore, one of the first decisions has got to be who should be picked to investigate the allegation.

Certainly, if your company has a human resource department, they should be brought in right away to investigate. In smaller companies, the owner or owners have the responsibility to investigate.

If your company had the foresight to buy an EPLI policy, call your insurance agent and put the insurance company on notice. While EPLI policies may vary in the time allowed for putting the insurance company on notice – as soon as possible may give you some needed direction from the insurance company. Many times the insurance carrier will turn the alleged claim over to an attorney who may have some specific instructions for you to follow.

If you are the person investigating the alleged harassment the following questions and issues should be addressed with the complaining employee”
• What happened?
• When did it happen?
• Where did it happen?
• How did it make you feel?
• Who else was there?
• What did they see or hear?
• What have they told you?
• What have you told them?
• Has it ever happened before?
• Who have you told this to and what did they say?
• Have you kept any written records or diaries relevant to this issue?
• Are there any employer documents related to a claim such as personnel file memos, expense reports, payroll records, or the like?
• Ask the employee for any witnesses that can corroborate his/or her version of the event.
• Are there any other issues that the employee wishes to discuss?
• Make sure that you have a list of every allegation before ending the interview.
• Explain how long you expect the investigation to take, and that you will apprise the employee of the outcome of the investigation.

Before, during and after the interview with the complaining employee, detailed notes should be taken. You need to remember that all materials that you generate will likely become evidence if the employee pursues the matter with the EEOC or files a suit.

Credit is hereby given to Erin E. Byrnes and Barry H. Uhrman, attorneys for Jones, Skelton & Hochuli, a Phoenix attorney firm specializing in employment law for allowing the author to utilize several articles that they wrote on Conducting Harassment Investigations to Limit Employer Liability.

Frank Thompson

Frank B. Thompson is a chartered property and casualty underwriter based in Phoenix. He is the owner of PT Risk Management, an independent insurance company specializing in writing propane and petroleum risk policies throughout the U.S.