Most harassment witnesses never reported what they saw to HR

                                Credit: Rawpixel Via Unsplash

Dive Brief: 

• Seventy-nine percent of participants in a study conducted by Spot witnessed an incident of harassment or discrimination at work within the past five years — but 77% of those witnesses never reported the incident to HR, despite feeling that the incident was worth reporting.
• Of the witnesses who told others at work or told HR, 78% did not seek permission from the person who was being harassed or discriminated against, Spot said. This can create three potential problems, according to researchers: anonymity is jeopardized, trust may be further compromised and workplace culture can be damaged.
• The top five reasons respondents cited for not reporting incidents to HR were: being worried about the consequences (34%), not wanting to interfere (29%), not knowing that witnesses could report (22%), not wanting to be a snitch (18%) and not knowing how to report (16%).

Dive Insight:

The study's researchers encouraged organizations to educate employees. Speaking up is healthy, workers can help without interfering and they will not be seen as "snitches" when they report, researchers said. The report also noted that "there appears to be a lack of trust by witnesses in the reporting process itself and a major deficit in understanding how to report harassment and discrimination."

The Spot findings correspond to those uncovered in recent National Institutes of Health research. Of 15,000 surveyed workers (including employees, guest researchers, trainees and contractors), one-fifth had experienced sexual harassment over a 12-month period, but almost half did not report it.

Employees and witnesses can be reluctant for a number of reasons to come forward and report misconduct. Retaliation is a very valid concern; retaliation claims are common and often accompany other types of bias claims.

Managers should be trained to avoid retaliation against employees who bring complaints. Complainants, similarly, should be encouraged to come forward with their concerns and assured that they will not be retaliated against. Additionally, complaint reporting procedures should be both clear and effectively communicated to employees, possibly in an employee handbook.

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Article written by: Jennifer Carsen
Article published by: HR DRIVE
Article spotted by: Louise Burden

4 Holiday-Party Considerations for Limiting Employer Liability

The holiday season is here, and many employers will host their annual year-end celebrations in the weeks to come. These events are generally meant to reward employees and foster camaraderie—but employers could be on the hook for holiday-party mishaps.

Potential problems at social gatherings include bullying, sexual harassment and other misconduct, as well as accidents and injuries, noted Keith Markel, an attorney with Morrison Cohen in New York City.

"It's important to make expectations clear from the start," said Nathan Baker, an attorney with Barnes & Thornburg in Indianapolis. "Think about the message, and make sure it's positive."

For example, he said, employers might want to say, "Let's have a good time. We don't anticipate any issues, but this is a work event and we obviously expect everyone to act professionally."

It might be worth mentioning that employees are welcome to wear festive attire, but they should still dress appropriately for an event with their peers, said Charles E. "Chad" Reis IV, an attorney with Littler in St. Louis.

The leadership team should set the example for the rest of the staff, Baker noted. Furthermore, leaders should encourage workers to report any incidents as soon as they happen so that the employer can play an active role in any resolution, he said.

Businesses can't eliminate all the potential liability that stems from company-sponsored events, but they can create an environment that limits their legal exposure. Here are four questions employers should consider when gauging their potential holiday-party liability.

1. Will Alcohol Be Served?

The days of "free-for-all open bars" are long gone, but many employers still opt to serve alcohol at company gatherings, Baker noted. Those that do should create an environment that doesn't lend itself to over-drinking, he said.

He recommended that employers hire a catering service that has the appropriate insurance and licensing and that can provide professional servers and bartenders who are trained to handle alcohol-related issues. This has the added benefit of making the party look a little fancier, he noted.

Employers may also want to consider serving only beer and wine and keeping liquor with high alcohol content off the menu.

They should consider limiting the amount of alcohol that is served, Reis said. For example, each employee could be given two drink tickets to use at the party.

But Baker cautioned that employees who want more drink tickets can usually find them, so while issuing drink tickets may be a good idea, it might not stop workers from overindulging.

"Consider limiting the hours that alcoholic beverages are served," Markel said. For example, an employer could stop alcohol service an hour before the holiday party is scheduled to end. This is a practice used at most sporting events and has proved to be an excellent deterrent to employees leaving the holiday party with impaired judgment, he added.

Employers could also serve dessert and coffee after they stop serving alcohol and schedule any speeches or presentations during that time, he said.

Additionally, employers may want to offer a shuttle service to public transportation or pay for taxis and ride-hailing services.

2. Where and When Will the Event Be Held?

The place, day of the week and time of day for the holiday party can all affect employee behavior. A party at the workplace may remind employees to act professionally, but it might not feel like a reward. A party at a downtown venue may feel more festive but may be more likely to get out of control.

Employers that are concerned about the effects of drinking may want to host a luncheon where no alcohol is served, Reis said. Alternatively, a late afternoon party with defined hours, perhaps from 5 p.m. to 7 p.m., might limit rowdy behavior.

If the party is held on a Friday or Saturday evening, employees might get a bit wilder than if it's held on a weekday evening, he added.

3. Is Everyone Included?

The party should be a celebration of the people who work for the company and not about a particular holiday, Baker said.

"Make sure all employees are invited, and encourage workers of all racial, religious and ethnic backgrounds to attend," Reis said. Careful consideration should be given to the date of the event because many religions celebrate holidays in December, he added.

Employers should consider putting together a planning committee that includes employees with diverse backgrounds. Attendees are more likely to be diverse if the planning committee is diverse, Reis said.

[SHRM members-only toolkit: Developing and Sustaining Employee Engagement]

It is also important to make attendance voluntary, he added, because some workers may not want to attend an event that is associated with a particular religion or practice or where alcohol is served. Furthermore, mandatory attendance could lead to wage and hour issues.

4. Is the Risk Worth the Reward?

It's probably too late to change the party plans for 2018, but employers may want to follow up with employees after the celebration to find out what they want to do next year.

Would employees still attend if the party was held on a weeknight or at lunchtime? Are they tired of the big extravaganza, or do they look forward to it every year?

"Involve your folks," Baker said. "Maybe your employees would rather get a $100 gift card and have a pizza party. Or maybe they'd rather donate the money to a food bank and spend time volunteering." Employee engagement is the key, and there's no single solution, he said. What works for one organization may not work for another.

"Ask yourself what the goal is," Baker said. If the point is to host a morale-boosting event for the team, then the employer needs to know what the team wants. "Maybe it changes every year," he noted.

Instead of starting with the liability question, employers should first find out what type of celebration makes the most sense for the team, Baker said. "And then we'll find ways to limit the liability around that."

Click here to read the full article....

Article written by: Lisa Nagele-Piazza, J.D., SHRM-SCP
Article published in: Society for Human Resource Management / Dec 5, 2018
Article spotted by: Louise Burden

limit  the liability around that."

About Face: OSHA Clarifies that Safety-Incentive Programs and Post-Incident Drug/Alcohol Testing ARE Permissible

On October 11, 2018, in an about-face on prior guidance, the Occupational Safety and Health Administration (OSHA) issued a significant Standard Interpretation Memorandum regarding safety-incentive programs and post-incident drug/alcohol testing.  In the new Memorandum, OSHA shifts course and clarifies that such programs and testing are permitted if properly drafted and enforced.

Background

In May 2016, OSHA published a new Electronic Injury and Illness Reporting Rule (“the 2016 Rule”).  In addition to creating an electronic injury reporting standard, the guidance accompanying the 2016 Rule made several significant changes to OSHA’s anti-retaliation regulations, and increased employer obligations to ensure that employees who report work-related injuries and illnesses are not subject to retaliation. 

In the preamble to the 2016 Rule, OSHA discussed how the Rule would apply to actions taken under safety-incentive programs and post-incident drug/alcohol testing policies.  OSHA’s stated concern was that safety-incentive programs and post-incident drug/alcohol testing policies could deter employees from reporting injuries or illnesses.  Indeed, OSHA stated that any safety-incentive program that could be construed to incentivize employees not to report an injury or illness would violate the Rule.  OSHA also indicated that safety-incentive programs that reward non-injured employees with safety bonuses or other rewards based on injury- or incident-free periods could be unlawful, to the extent  these sorts of incentives could deter employees from reporting injuries or illnesses. 

OSHA further warned that employers could not use post-accident or incident drug/alcohol testing, or the threat of such testing, as a form or retaliation against employees who report injuries or illness from accidents.  In further commentary and guidance on the 2016 Rule, OSHA opined that post-accident testing would survive agency scrutiny only if there was a “reasonable possibility” that substance impairment caused a work-related accident and the test was administered in a manner that would allow the employer to identify whether the individual was impaired at the time of the accident.

OSHA’s preamble and guidance has created considerable confusion among employers regarding the permissible scope of safety-incentive programs and post-incident drug/alcohol testing under the 2016 Rule.

OSHA’s New Standard Interpretation—Safety-Incentive Programs

In its October 11, 2018 Standard Interpretation Memorandum, OSHA clarified that the 2016 Rule does not prohibit safety-incentive programs.  In an important shift, OSHA now acknowledges that safety-incentive programs “can be an important tool to promote workplace safety and health.”  

OSHA also describes types of incentive programs it believes are permissible under the Rule.  Safety-incentive programs that “reward[] workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system,” are “always permissible” under the 2016 Rule to the extent that such programs provide positive reinforcement for reporting illnesses and injuries.

The new Standard Interpretation also discusses rate-based safety-incentive programs (“rate-based programs”), which focus on reducing the number of reported injuries and illnesses by offering prizes or bonuses based on injury- or incident-free periods, or evaluating managers based on their work unit’s number of injuries.  OSHA now indicates that these rate-based programs are permissible “as long as they are not implemented in a manner that discourages reporting [of injury or illness].”  The agency warns that “if an employer takes a negative action against an employee” under a rate-based program, such as withholding a prize or bonus, the program remains permissible only if the employer has “implemented adequate precautions to ensure employees feel free to continue reporting injury or illness.”  Precautions are deemed sufficient if the rate-based program includes elements such as:

• an incentive program that rewards employees for identifying unsafe conditions in the workplace;

• a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy; and

• a mechanism  for accurately evaluating employees’ willingness to report injuries and illnesses.

OSHA’s New Standard Interpretation—Post-Incident Drug/Alcohol Testing

In a development favorable to employers, OSHA has moved away from its initial 2016 claim that post-incident testing was permitted only when the employer believed there was a “reasonable possibility” that illegal drug (or alcohol) use “could have contributed” to the incident.  Now, a request for a post-accident test would violate OSHA injury-reporting retaliation prohibitions only “if the employer took action to penalize the employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  The new interpretation eliminates any suggestion that post-incident testing be based on “suspicion” that employee drug or alcohol use contributed to an accident. 

Pronouncing “most instances of workplace drug testing” are allowed under the injury reporting rule, OSHA specifically deemed all of the following drug testing to be permissible:   

• Random drug testing.

• Drug testing unrelated to the reporting of a work-related injury or illness.

• Drug testing under a state workers’ compensation law.

• Drug testing under other federal law, such as a U.S. Department of Transportation rule.

• Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

Thus, employers will want to make sure they state somewhere in their post-incident testing policy that the Company “reserves the right to test all employees whose conduct may have contributed” to the incident. 

Prior Interpretations Superseded; Enforcement Under New Standard Required

Two other statements in OSHA’s new Memorandum also are very helpful for employers, both with respect to incentive programs and post-incident drug/alcohol testing:

To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.

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Article written by: TOM METZGER, NANCY DELOGU, DALE DEITCHLER, KEVIN GRIFFITH AND BEN MOUNTS

Article published on: Oct 11, 2018 /Published by: Littler

Article spotted by: Kathryn Benson And posted by: Louise Burden