Getting Harassment Training Right

Over the last year, I’ve done hundreds of respectful workplace (a/k/a harassment) trainings.  I love this training.  It is my favorite.  This is training is so vital to every organization that I will move vacations to do it.  Seriously.

I speak publicly on harassment training.  Just this year, I’ve done a DisruptHR talk, the North Dakota’s Workforce Development Conference, Minnesota SHRM, and soon the Minnesota Association of Legal Administrators conference on this topic.

I’ve even written a lot on harassment training.  (See here and here for training specifically, and here and here for more general training references.)  The writing has helped me focus my own trainings, making them better for my clients.

After this year (and the years before that), I’ve come up with my own philosophy on harassment training – what makes it good, what can we do better, what should employers consider, etc.  Ultimate Software has been kind enough to include my diatribe on the subject in their collection of white papers.  You can find it here.   Please, if you’re considering putting harassment training on your list of to-dos for 2019, read it.

Is HR Two-Faced? You Betcha.

HR has two faces.  This is not necessarily a bad thing – it’s by design.  To employees, we are the face of management.  To management, we are the face of employees.  This is what makes our job so darn hard.

Employees need us to be their advocate to management.  We beg, borrow, and steal for increased benefits, argue that people should be disciplined, we ask for more training and opportunity for employees, we pass tissues when someone is upset, we help get them leave when a grandma is sick or a baby is on the way, etc.

Management expects us to keep them safe.  We create policies that govern employee behavior, we find people so the widgets get made, we draft severance agreements when a manager screws up, we coach managers how to have tough conversations, we try to reduce liability by implementing safety programs, etc.

Some of us really like one side over the other, but both are expected and important.  Problems arise when we show the wrong face.  When we brag to employees just how hard we’ve been working on their behalf, management hears of it and loses trust in us.  When we gossip with employees about management strategy, employees learn they can’t trust us either.  When we stop advocating for employees with management, the employees know we’ve stopped.  Then, they know they can’t come to us with problems – we’ll just can’t be bothered by them.

These two faces are really hard to maintain.  We can’t have deep friendships with the people we work with for fear of the time when we have a tough conversation with our friend that ends in her termination. But we want to know enough about people so they feel comfortable coming to us with concerns even if we don’t partake in the party after the company party.  This professional distance is important for us to do our jobs, so we’re trusted enough to do our jobs.

Sometimes, we can’t show either face until we have facts.  When we hear about harassment is one of those times.  We are empathetic and appreciative to the person who brought us the complaint, but we can’t make admissions like “I’m so sorry” or “We’ll make this right.”  This could show the employee that we’re on her side, undermining our investigation.  OR – perhaps more destructively – we show the employee our management face that’s cold and “just the fact’s ma’am” ensuring that no employee ever tells us about harassment again because we appeared to immediately take the side of the harasser.  Once we have completed the investigation, we advocate to management about what should be done, even if it’s nothing.  When we advocate for the ultimate penalty (termination), we put our credibility and relationship with management on the line.  Then, if we lose, we have to make tough decisions for ourselves.

We don’t always win.  We advocate and lose on both sides, employees and management.  But even when we lose, our job is to build relationships strong enough to get past the loss so we can be ready for the next round. OR, if this loss affects our integrity, we have even tougher decisions to make.  We must think about the possibility of making that decision someday.  It takes guts.

We may have two faces, two jobs that sometimes conflict, but that’s the great thing of HR.  We get to do both.

 

Photo by Soroush Karimi on Unsplash

Harassment & Being the Boss

In response to the #MeToo and #TimesUp movements, state legislatures and localities are taking action, including requiring sexual harassment training and policies that explain where employees can turn if they don’t believe their employer has handled the situation appropriately.  New York’s new law requires that policies explain that employees will be disciplined for engaging in harassment and – perhaps most importantly – managers will be disciplined when they allow harassment to happen.

Did you read that?  Managers will be disciplined for letting harassment continue. This is where NBC, CBS, and nearly every employer who makes the news has allegedly failed – a manager knew about the behavior and didn’t make it stop.  This, ladies and gentlemen, is why manager training is critical to the end of harassment.

The law focuses on managers because managers are the employer.  They make crucial decisions, like hiring and firing.  They sign contracts.  Often, the buck stops with them even if they are in the dreaded middle management.  This means managers are responsible to take action when they get wind of harassment, but often, managers don’t understand the crucial role they play in preventing and stopping harassment.  As legislative bodies take more and more action, here are some of the lessons you can incorporate into your training now:

Managers must know the work environment they create and manage.  For a manager, the word “manage” is in her title.  So, she must actually manage.  Merriam-Webster defines the verb “manage” as “to direct or carry on business or affairs.”  No one can effectively do this if she doesn’t know what is going on or doesn’t understand how her people interact.  So, dear manager, know your people.  Also, set a tone of respect with your people.  Be the example.  (You can have bad days – pobody’s nerfect – but when you make a mistake, acknowledge it and move forward.)  While the “doing” might be more fun, the “managing” is your job.  When you know the work environment, you can take steps to prevent harassment.

Managers have the power to do something.  A manager can’t throw her hands up when she learns about possible harassment.  Harassment requires her to dig in, tackle the problem, and sometimes, make some really difficult decisions.  Organizations may differ on what exactly they want the manager to do – report to HR, step in and separate the people, suspend the alleged harasser, discipline, etc. – so train the manager on what to do and who to talk to when she needs help.  (Remember, managers need to know enough.)  In manager training, go through scenarios, talk through what the organization would want the managers to do.  This will invite participation, just the kind of interactive dialogue the EEOC and state agencies want in harassment training.

There is no such thing as an official complaint.  A whiff, a rumor, seeing someone uncomfortable or crying, a conversation between a manager and an employee that’s “just between us” all trigger action by an employer.  In order to have a defense to harassment claim, an employer must take “timely and appropriate action” when it learns of harassment, so if a manager learns of harassment, she puts the employer on the hook to take action.  Waiting for an “official” complaint is not only poor management, it creates liability for an employer.  No manager wants to do that.

You will get in trouble for harassing too.  Because the law treats managers as the employer, when a manager engages in harassment, the employer can automatically be liable for the harassment.  Managers have to understand this.

Harassment hasn’t always been clear, and the courts haven’t helped much.  That said, we have an ethical obligation to help employees and managers understand it and how we define respect in our workplaces.  The difference between “You look nice today” and “That dress hugs you in all the right ways” is respect.  One statement is a respectful compliment.  The other can be characterized as harassment.  Will your managers step in when they hear the dress one?  Will they know what to do?  Your managers absolutely need to know what to do at the moment the statement is made or when an employee tells what happened.  So, train them.  Please.

 

Photo by Brooke Lark on Unsplash

FMLA Screaming (Part II)

Have you pondered the question from yesterday’s post?  Agree with me that there are things you can do and things you should do?  That should do includes approaching FMLA with come compassion and not being super strict with FMLA’s limitations, right?

Yesterday’s post covered some of my tips for the start of FMLA.  Here are a few more for during leave.

Preparation for leave is essential.  Hopefully, the employee knew he needed to go on leave and was able to prepare by giving his manager his passwords, updating her on the status of projects, and plan to turn over work.  Sometimes, this isn’t the case.  An accident, premature delivery, or quick onset of a serious illness can take the employee out of the workplace leaving a manager without the benefit of the advanced notice.  What do you do in these emergency situations?  Leave the employee alone.  The employee is already ill or injured himself, worried about a family member, or facing the crushing reality of being a parent to a new baby.  The status of the sales agreement with customer XYZ is not top of mind.

Let technology help you with not knowing what’s going on.  Get access to email and other systems to help piece together the status of projects without bothering the employee.  Need a password?  Work with the software vendor or your own IT team to recover a password if necessary.  Change permissions so the manager or another team member can see things.  Again, don’t bother the employee.

If the leave is intermittent and the employee’s need for leave could come as a surprise on any given day, plan for what that looks like.  How will the employee handle the sudden need to be off?  Come to an agreement with the employee about his work when this happens.  Does this mean the employee spends the last 10 minutes of each day sending a quick email on the status of things?  Maybe.  (Would that be a nice thing to have anyway even if he didn’t need leave?  Yep!)  Setting expectations is a manager’s job.  If the manager laments every time Juan takes an intermittent day, well then it’s the manager’s problem for not preparing for this – not Juan’s.  (I know, I know, this isn’t a great one-liner to share with the manager, but you all are good coaches, you’ll soften the message.)

Don’t surveil the employee.  Seriously.  Don’t send someone out to watch the employee’s house to see if he is cleaning his gutters or fixing a deck.  Don’t monitor his social media accounts for signs of a vacation.  Assume the employee needed the leave and is using the leave within his or his family member’s health care provider’s instructions.  If something fishy starts happening, you’ll learn about it.  Don’t waste your time and resources beforehand.

When the employee is ready to come back to work, don’t forget the ADA.  Yes, the ADA can be an even bigger headache for employers.  Yes, the Seventh Circuit recently held employers might not have to give more leave than the FMLA requires.  However, the ADA places a reasonableness standard on employers.  Employers are required to consider reasonable accommodations, including leave, for each requesting employee on a case-by-case basis.  Don’t get consumed with “well if we give it to Larry, we’ll have to give it to everyone else.”  Remember, the ADA requires case-by-case analysis.  For more return-to-work tips, check here.

Lastly, remember that communication is really important at the end of leave.  You may want to know if any restrictions are necessary.  You may want more confirmation as to what day.  For requests like these, remember K8’s rule of three.  Ask at least three times in writing before you assume the employee is abandoning his job.

I get that the FMLA is tough.  I get that it can be frustrating for HR and managers.  However, it can be a godsend for employees.  It’s supposed to give them peace of mind that their job will wait for them if they need to be out for a bit.  Use this fact as a part of your compassion and empathy game. The employee will thank you for it.

 

 

Photo by frank mckenna on Unsplash (Great, happy picture, right?  Perfect for a Friday!)

FMLA Screaming (Part I)

The Family and Medical Leave Act.  A great idea that causes many HR pros to scream, pull out their hair, and/or outsource their frustration.  So much so, there’s even a blog dedicated to it.  (Read it, Jeff is both funny and smart.)  Even though can be incredibly frustrating, it’s a fact of life that can be made easier by approaching it with a sense of calm and a smidge of empathy. This post includes some basic advice when dealing with FMLA issues.

First off, by in large, employees are not out to “game the system.”  Yes, we’ve all heard of FMLA/ADA/Work Comp fraud.  It is a thing.  However, most employees do not ask for leave to pull one over on their employer.  With that, let’s assume an employee who requests FMLA actually needs leave for herself or her family.  The need for leave is already distressing to the employee.  She is likely worried about her job, and she is also worried about herself or her family.  Focusing only on the impact to the employer will not support her needs in this time of emotional chaos.  Be supportive.

The employee may not know exactly what to do when she needs a leave.  So, she’s going to look at your handbook to find some information.  She will likely do this before she talks with HR.  Make sure your handbook is up-to-date, complete, and explains who to talk to about leave.  If she does not look at your handbook, she is probably going to talk to a trusted co-worker.  Hopefully, this co-worker will know just enough to tell her to talk to her manager.

Next, she will probably say something to her manager.  She might not say “leave.”  She might say “time off” or other words that indicate that she may need a leave.  This requires managers to understand the signals of a leave request, and this requires manager training.  Managers – especially new managers – need to know enough to understand what these signals are and what to do when they see, hear, or otherwise get an inkling that leave is an issue.  If they do, they will send the employee to HR.

Now that she’s made the request, HR needs to use the Department of Labor forms.  I joke when I’m speaking on FMLA topics that HR pros are not graphic designers.  Department of Labor makes the best forms for FMLA.  Nobody creates better forms.  More than 10 of my clients have made the mistake of using a vendor’s forms and not the DOL’s only to come to learn that the vendor didn’t have a very important question on its form that resulted in a loss of sleep, thousands in more settlement dollars, or confusion on the part of the employer and the employee.  Here’s the link to the forms.  Bookmark it.  One more tip:  Always go back to this page.  The forms get updated from time-to-time so the most up-to-date forms will be at this link.  Please do not print off 10-100 copies and stick them in a file cabinet.  Print a new set every time an employee requests leave.

Remember the cadence of the forms.  FMLA regulations set out when forms must be doled out and returned.  Understand these timelines and make sure you – the employer – follows them closely.  The DOL’s FMLA Employer Guide does a great job outlining these.  Bookmark it as well.

If an employee doesn’t turn in the forms on time, use K8’s rule of three (trademark pending) – request the employee return the forms three different times and document each of those attempts over a period of several days.  Send an email to her personal email.  Send a letter.  Send a text message (and screenshot the text).  If she still does not respond and is capable of responding (isn’t in a coma or otherwise hospitalized), then talk to your friendly neighborhood employment attorney.

Next, calm the manager by being proactive.  Managers can freak out about losing an employee to a leave.  They get nervous about how work is going to get done.  They worry about how and if other employees will be able to pick up the slack.  Go to managers with a plan.  Ask if they will need temporary help, an employee from another team who could step in on a temporary basis, or if another hire will be needed since the team was already overworked.  Approaching a manager with some options will help calm some likely frazzled nerves.

Tomorrow’s post will have some more tips on the FMLA, including what to do during the leave and preparing for a return to work.  In the meantime, consider this:  There is a difference between strict FMLA compliance that follows the letter of the law and being a bit more flexible with employees.  Relying on the strict letter may not seem fair to the employee.

Photo by Gem & Lauris RK on Unsplash

Let Go of Welcomeness

In the legal world, welcomeness has been an element of a sexual harassment claim since Meritor Savings Bank v. Vinson – the first U.S. Supreme Court case to recognize sexual harassment under Title VII.  Did the alleged victim welcome the breast grab?  Did she engage in the sexual banter herself?  Did he want his “junk tapped” by coworkers?  If a claim is going to be successful, this analysis is a must.

Yet, this legal standard doesn’t capture the reality of workplace harassment.  It ignores several factors that are at play that could suggest the conduct is welcome when it is most definitely not.  Let me try to convince you that we need to focus on the conduct or comments of harassment and not whether that same conduct is welcome.

People say, “it’s okay” to make the encounter end quickly.

When something bad happens, we often say, “it’s okay” because we want a couple of things: (1) we don’t want to really talk about how we’re feeling, and (2) we want to get out of this situation.  This happens with sexual harassment too.  If someone grabs a butt or a breast – especially if that person is a co-worker or god forbid a manager – we want to get out of this situation fast.  Like super duper fast.  If we actually talk about how this feels or if we challenge a person who has input on our career (including co-workers), we might feel that we’re going to make the situation worse.  So, we say, “it’s okay,” “don’t worry about it” or even shrug it off.  These words or shrug are not words of consent but are words of resignation.  We’re resigned that this happened, and we want to move on.

People do this all the time.  We don’t always confront our racist uncle at Thanksgiving dinner or our pastor after a particularly homophobic sermon.  We don’t because we don’t want to cause trouble.  So, why do we make harassment targets do the same thing to prove that they actually were harassed?  (If I had a dime for every harassment policy that says you must tell the harasser to stop as the first step…)

For HR and harassment investigators, the “it’s okay” is a challenge.  For those focused on whether the conduct was welcome, this is the silver bullet.  She said, “it’s okay” so it must be.  It was welcome.  Nothing to see here.  No harassment.  This is the problem. Reminder: Employers have an obligation to keep harassment out of the workplace. Employees have no obligation to report under the law.

Even when sexual conduct is welcome, it’s unwelcome to somebody.

In harassment trainings, I go through a bunch of scenarios.  One of my favorite rapid-fire scenarios is this:

Colin has been head’s down on a project for weeks.  The project is finally over, and he accompanies the team to happy hour to celebrate.  He’s so happy to be done with the project, he kisses Judy.  Is this harassment?

Without fail, within five seconds of reading this scenario, some jokester yells out “what if Judy is his wife?”  I give him (always a him), a look that screams “listen, buster” and calmly say, “Do you work with your wife?”  (Hushed giggles throughout the crowd.)  If Judy was Colin’s wife, arguably he does not engage in sexual harassment as the law would view it.  If Judy is his wife and they begin a rigorous game of tonsil hockey, then the team around them turn their heads away, get up to go to the bathroom, and/or otherwise consider calling it a night.  If this happens, there is an arguable case for sexual harassment since the team clearly did not want to watch the competitive sport of kissing as played by their coworkers.

Here’s another rapid-fire example:

Peter and Juliet joke around all the time.  The jokes have turned flirty with both commenting on each other’s bums.  Is this harassment?

Depending on the industry I’m training, a varying degree of uncomfortableness spreads throughout the crowd.  They suspect the answer is yes, and some will admit they may have done this but they’re not sure if this is “illegal.”  I explain that I’ve helped an organization in a very similar circumstance where the banter was consensual, but the person next to them had to hear it day in and day out.  Eventually, he complained to his boss who then promptly fired him.  While the underlying sexual harassment claim might not have been actionable, the retaliation that resulted was clear.  The lesson here for employees – don’t engage in sexual banter even when you and the other person wants to.

Even when sexual conduct is welcome, it doesn’t always stay welcome.

News flash:  Romantic relationships fail at an alarming rate.  Consider all the relationships that an individual has to go through before marriage.  Then consider that half of marriages fail.  That’s a lot of failed relationships.  In the workplace, relationships fail a lot too.  When a welcome, romantic relationship fails the potential for harassment or retaliation to occur is high.  Scorned lovers – male or female – exist and wreak havoc.  They can seek to rekindle their love with unwanted words, gestures, and touching – all potential conduct in violation of an employer’s sexual harassment policy.

Let’s let go of welcomeness.

When we get a complaint of harassment, we need to look at the conduct or comments that led to the complaint.  It shouldn’t matter whether the conduct was invited or even wanted.  What should matter is that we don’t want our employees, clients, customers, vendors, etc. to watch a rigorous game of tonsil hockey, a butt grab, or hear a particularly randy joke.  We shouldn’t tolerate it in our workplaces regardless of whether it was the married couple in cubes four and ten or the supervisor to her employee in the breakroom.  It’s the conduct that is the problem, not whether it was welcome conduct.

Photo by Sweet Ice Cream Photography on Unsplash