Not #YouToo —Measures Against Workplace Harassment

Posted in: Commercial Insurance, Employee Benefits

We’ve all seen the high volume of harassment claims in the news lately with accusations against many public figures including politicians and celebrities. If this many harassment claims are coming to light on a public scale, you can bet that these types of incidents are just as prevalent in everyday businesses. In fact, we’ve seen an increase in workplace harassment claims; in 2017, the EEOC reported an estimated $46,300,000 in monetary settled benefits regarding sexual harassment claims.

In light of these statistics, it is becoming increasingly critical to have sound best practices to protect your organization and employees. This includes having an employee handbook with a solid workplace harassment policy, insurance and the right procedures to handle a claim or a potential lawsuit. If you don’t have any of these, or you are not sure how well your best practices would protect you in court, keep reading.

To help you develop and implement strong workplace harassment prevention best practices, I reached out to Howard Kurman, a renowned employment attorney at one of our partners, Offit Kurman PA, to get his professional, legal perspective. With over 40 years of experience, Howard regularly counsels clients on all aspects of proactive employment and labor issues.

Check out below our 2-part interview series with him sharing best practices of how to proactively mitigate workplace harassment exposures. In this post, we’ll discuss how to prepare for and prevent a potential incident.

Q: With the proliferation of the “Me Too” movement, what are the most critical proactive measures that any company can take to mitigate the risks of liability for workplace harassment claims?

A: This question combines some legal and cultural actions that companies need to take.

First, companies should have a clearly communicated and disseminated policy on sexual AND workplace harassment. What people don’t always realize is that workplace harassment (based on religion, race, disability, etc.) encompasses much more than just sexual harassment. Therefore, any company needs a very comprehensive workplace harassment policy, which also includes protective language against any type of retaliatory action against either the person bringing the complaint or anyone participating in the investigation.

Second, I strongly recommend any company to purchase a well-structured comprehensive Employment Practices Liability Insurance (EPLI) policy to protect against potential lawsuits that may result from an employment-related claim. Be sure to select a policy that offers you the option to work with a law firm of your choice when you need legal representation. Most EPLI policies will also provide you with a certain number of free or discounted hours with an attorney.

Third, you need to have effective and comprehensive training for all employees. Simply showing videos to them or distributing outlines of training materials, as many companies often do, is not enough.

Q: Should a company use a template or work with an attorney when developing an employee handbook and workplace harassment policy?

A: I have never been in favor of a client simply taking a policy verbatim off of the internet for instance, because each company faces exposures specific to the nature of its business.

For example, if you’re a manufacturing company, your risks might be much different than those of a professional services company. So you need to assess the nature of your workforce and culture. It might make sense to work with your employment law attorney to draft a comprehensive policy that best suits your organizational needs and goals.

However, if you are using a template, just be sure to have it vetted by a legal counsel in order to avoid possible risks. I think it’s penny-wise and dollar-foolish to do it on your own, especially when drafting harassment policies can be done very affordably these days. In my experience, it is critical to have a comprehensive handbook or policy, which is one of the first documents a plaintiff’s attorneys will reference in the event of a claim or litigation.

Q: Firms are focused on improving culture as a strong way to retain and attract talented employees. This often means more company happy hours, employee appreciation, and other fun gatherings that may create opportunities of workplace harassment. Do you have any advice on how to prevent and handle this risk?

A: I’ve always believed that a company culture begins at the top. It’s imperative that leadership sets appropriate examples and clearly communicates expectations to all employees as well as provides guidance on what breaches of the company’s code of civility or professional conduct that may rise to the level of problematic workplace harassment.

All employees need to understand that, whether at an internal or external networking event, they are the representatives of the company, and their actions can have legal ramifications for the organization.

Stay tuned for the second part of this series, in which we’ll discuss steps you can take to effectively handle workplace harassment when it does happen to avoid potential costly claims and lawsuits.

In the meantime, don’t forget that combining a comprehensive workplace harassment management plan with a solid EPLI policy is the best defense to protect your company from a costly employment or workplace claim. I recommend teaming up with a trusted insurance advisor for your EPLI policy needs and a reputable law firm for your workplace harassment policy or employee handbook. Should you need any assistance with your employee policies, contact hkurman@offitkurman.com. Similarly, if you have any questions regarding how to structure your EPLI policy for your organization, fell free to reach out to me at cmorsberger@psafinancial.com.

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