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Those who say it cannot be done, should not interrupt those doing it.
— Chinese Proverb
 
 

Reporting Culture: Are your employees comfortable reporting their workplace concerns?

There have been several instances in the news of late that have magnified the need for an ethical and defensible reporting mechanism in the workplace.  For example:

  • A former Uber employee posted egregious accusations of rampant sexual harassment and retaliation on social media--citing documented requests for sexual favors, lack of accountability for those considered high-performers, blocked promotional opportunities, deception from HR and management when approached with concerns, blame-the-victim mentality, and other claims of bullying and retaliation for reporting concerns to HR.
  • Claims of retaliation from a host of employees for reporting illegal requests from Wells Fargo Management to set up new accounts for customers without their authorization.  Many employees who reported these issues to HR allege they were bullied and harassed until they quit or HR found a means to fire them.  The CEO of Wells Fargo was forced to resign following a Congressional hearing on the matter. The company’s market position has taken a serious hit and may continue to decline as the story unfolds further.
  • A Texas jury ordered Chipotle to pay a 16-yr old almost $8 million in damages arising from a sexual harassment claim. Within weeks of starting her new job, this minor was subjected to sexual advances from the assistant manager.  Within a few months, the two were having unprotected sex in the restroom, the office and by the dumpster.  According to the Complaint, the minor’s mother addressed the matter with the general manager who begged her not to go to the police. Chipotle managers tried to cover up the issue and constructively discharged the plaintiff.  The judgment was yet another setback to Chipotle’s market position following e-coli scares and a lawsuit alleging the company made employees work off-the-clock.

What can be gleaned from these and other similar cases?

  • No company wants this kind of publicity.  Controversies affect the bottom line and can devastate business. You are never too cool to fail.
  • Companies need to have a clear and transparent reporting process that is not just lip service.
  • The reporting process must be promoted in a positive way to employees, supervisors and managers. No one should be afraid to report, nor afraid of the process.
  • Executives and managers do not always know what is really going on in the trenches, but they are responsible -and potentially legally liable - for it.
  • The political and cultural climate in the workplace should be audited regularly to ensure that the message is getting through to everyone.
  • HR should not be involved in handling employee grievances. The possible conflict of interest alone should be enough to remove HR from investigating issues that involve the managers with whom they work on a daily basis.

There are affirmative defenses available in certain circumstances where companies may be exempt from claims if:

  • No tangible adverse employment action was taken,
  • The employer exercised reasonable care to prevent and promptly correct the behavior, and
  • The employee failed to take advantage of opportunities provided by the employer to avoid harm, i.e. not taking advantage of reporting procedures

See: Faragher-Ellerth Defense

In all three instances noted above, it appears from the media reports and legal documents that adverse employment action was taken, the employer did not exercise care to prevent or correct the behavior and the employees did report their concerns but their report was dismissed or covered up.

Workplace FactFinders can help you get this right. For more information about our services, including employee hotline management, internal investigations, policy and procedure consulting and auditing, and our Informed Resolutions® process, please contact Cynthia Fenton or Stephanie Woodhead at (844) 321-9733 or email us at info@workplacefactfinders.com

The information contained in this article is not legal advice and should not be relied upon as such.  Employers should consult their attorney for legal advice. 

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