sign in sign up
<<
Home , Workplace harassment

PUGET SOUND BUSINESS JOURNAL THOUGHT LEADER FORUM SERIES | SPONSOR CONTENT 1

THOUGHT LEADER FORUM

WORKPLACE

PUGET SOUND BUSINESS JOURNAL THOUGHT LEADER FORUM SPONSORS 2 PUGET SOUND BUSINESS JOURNAL THOUGHT LEADER FORUM SERIES | SPONSOR CONTENT

THOUGHT LEADER FORUM

compliant, but also caring and human. if the complainant and HR are good That’s an important piece in any , friends? You want to ensure fairness and inclusion and harassment . It’s independence in who’s going to look at not consistently defined across the US so it, both actual independence and the it can be challenging when dealing with appearance of it. employers from different parts of the country and even within our state. What’s a common mistake in making a decision about how to handle it, A report of conduct that might besides delay and power dynamic? constitute workplace harassment comes in. What are the first steps an SHUKIS: Sometimes investigations are HARASSMENT should take? too limited and that can be for different reasons. Sometimes I’m scrutinizing an On February 1, Puget Sound Business the example. If management is not KAMM: Be human. React like you investigation as part of a litigation and Journal Publisher Emory Thomas led behaving appropriately, others are not care because you do care. You should there are times when I can see glaring a dynamic discussion on the subject going to see the need to change. care as a business owner as well as issues and I wish someone would have of Workplace Harassment with three care as a person. I think we all have been on the team with the investigator experienced regional leaders whose So, it starts with training? been conditioned to react as if we are to be sure we’d approached this the expertise is highly sought after for help in a fender-bender and avoid getting right way, the scope, docs, etc. by companies looking to improve in BOREK: Yes, in addition to employee out of the car to say, “I’m sorry.” In a this important area. The participants awareness training I recommend harassment situation, you need to bring BOREK: The optics are really important. were Diana Shukis, Attorney, Garvey leadership teams sit down with a compassion to the situation. How is it going to look to the victim, the Schubert Barer; Aviva Kamm, Attorney trusted advisor and have real in-depth rest of the company, the witnesses, the & Workplace Investigator – Stokes conversations on what harassment looks BOREK: “I regret you feel that way” is public? We are seeing more companies Lawrence and Kellis M. Borek, JD, Vice like and what to do if someone comes to first thing out of your mouth. Or “thank using an outside investigator which can President, Labor & Legal Services and you with a complaint. you for bringing this forward.” Ideally, be very costly. This can drive decisions General Counsel, Archbright. the person came to you because you for companies to decide to do it SHUKIS: It’s important to get leadership have a culture of trust and your policy internally who feel they cannot afford it. How is the #MeToo movement the tools they need so they are part of says to come forward. changing your practice or your clients’ the solution. need to look KAMM: It can carry tremendous weight business practices? at their policies – not just their policies SHUKIS: Then I think you naturally get with an employee, that a company was that are written on a page – deeper than what you need which is information. willing to invest resources in an outside BOREK: Companies are prioritizing that. How do they live those words when What are the facts that will help inform investigator. If the allegations are not the need for training and . it comes to harassment? what my next steps are? Without the upheld by the evidence, they may be I’ve seen an uptick in management bravery of someone coming forward you more likely to feel that their concerns being more proactive and not waiting How do you decide if you live those can’t take the next steps as a business. are validated. You see the value from for a complaint. Because of what the words? the expense the minute the employee headlines are communicating, people KAMM: You will be asking yourself, realizes they are being taken seriously. think “I’m going to step in front of this SHUKIS: If you have an HR department “what do I need to do right now? Is now and budget for that training for our it starts there. What issues have we had? someone at risk? Do I need to put What happens when these situations leadership team.” Investigations are up What did we do, not do? Where did we someone on leave because there might get to the criminal realm? If it involves too. Employees are savvy. They know not do well enough? How do we correct be continued harm? Does this require an sexual misconduct, minors, abuse? when to bring complaints forward. They that? Sometimes you need to rip up investigation? And if it does, who is the How does that change the arc of have more courage to do that now. what you currently have and start over. right person to do it?” You need to have where things go and who’s involved? the right advisors on your team to help KAMM: The #MeToo movement is KAMM: Typically, if you can’t set the you right then. Do you have a lawyer you SHUKIS: I immediately call one of my bringing this issue higher up on many culture within leadership you can’t do can go to? partners who does criminal defense. It people’s radar. For my practice, it’s not it anywhere else. You need to set a complicates things dramatically for a a fundamental shift but it’s now easier culture where leadership is attentive SHUKIS: Sometimes there also can be a business. to convince clients to make training and responsive and human. The first public-relations component depending a priority. The current discussion is to thing you do when someone brings a on the nature of the allegations, the KAMM: When there’s a criminal err on the side of scheduling training, complaint is to say, “I am sorry you feel organization, who’s implicated, etc. It allegation you’re going to want to talk revising the this that way and tell me more about it.” doesn’t happen every time, but that is to internal marketing or PR, or outside year, bringing in outside expertise, etc. You want to set a culture that doesn’t part of the “do I have the right advisors” PR. is insidious and fast-moving. tolerate inappropriate behavior but also you need to review. It could impact your customer base, You say investigations are up. recognizes people are going to make shareholders, board, etc. Dramatically? Measurably so? mistakes and when they do they can Let’s talk about investigations. come and tell us about it and we will How do you triage and figure out What do leaders need to know that BOREK: We tend to go through demonstrate that we care. A policy on what’s needed? The gamut of an sometimes too often they just don’t peaks and valleys and I haven’t seen paper is worse than nothing if you don’t investigation can be quite broad. How know these days? any valleys. It’s a steady stream. Most follow it. do you decide what the scope needs of them right now have to do with to be? KAMM: Keep your hands to yourself. harassment. We are seeing fewer Have the rules changed? investigations for theft or other issues. SHUKIS: It’s based on the facts you have SHUKIS: Some surprisingly don’t know SHUKIS: I’m a lawyer so sometimes at that moment. What internal resources that. SHUKIS: I echo that. Organizations I think of rules as “what is the law,” do you have? Do you have people who are much more aware and wanting to but the law is the minimum. It’s the have the bandwidth, skills, experience? BOREK: If you’re a leader, don’t touch prioritize training and leadership’s focus floor. Some rules have changed or may Or are there good reasons that an subordinates. It doesn’t matter what you on this issue. Higher-level executives are change. One thing that has changed external investigation would be better? think or what you intended. It goes back listening more attentively to what their is the new tax law. Now in settlement to their perception of your conduct. HR executives have been telling them of complaints if the BOREK: If the company has an internal for some time. I’ve seen an increase settlement includes a non-disclosure HR department, first determine if they KAMM: At any level in an organization, in requests for training for higher level agreement (NDA) then that settlement have the time and resources to get it informality often creeps into electronic executives. and the attorney’s fees associated with done quickly and correctly. Delay is not communication like emails where people it will no longer be deductible as a an option in a lot of these cases. don’t know how their tone is perceived. What are the most important things business expense. That is one way the Last year I litigated a case about an organizations should do right now to rules are changing. KAMM: Look at who the players are and emoji. Things can be interpreted be in the right place on this? the power dynamic. If you have someone differently when you’re not there BOREK: The expansion of the protected who’s two layers down interviewing delivering a message in person. I include BOREK: Start with the leadership. status definition in the realm of gender someone in the C-suite the dynamic is a conversation about IM, texting and That is the place you have to start to identity and gender expression is a off. Or what if it’s a small organization emails when I do workplace . eradicate harassment and inappropriate changing rule, a changing norm. For and the person in the HR function is the behavior in any form in the workplace. some employees, there’s a level of spouse, child or cousin of the founder BOREK: A or a manager may The conduct may not be unlawful, but education that needs to be put in place and the founder is the accused? Or say, “Yes, I hugged her but I asked first.” leadership has to know they are setting so that employers can be not only what if they’re good friends? What In the eyes of the law, the subordinate PUGET SOUND BUSINESS JOURNAL THOUGHT LEADER FORUM SERIES | SPONSOR CONTENT 3

“Typically, if you can’t set the has no power and couldn’t give a SHUKIS: Also legislatively mandated consensual answer. A lot of employees culture within leadership you training for cities and states. may not see it as a voluntary question. So for a manager to say they asked and they BOREK: The #MeToo movement said it was ok, it’s still not ok. Just don’t can’t do it anywhere else.” has highlighted a need to look at a do it. It’s too risky. That’s the blind spot. company’s dating policy or lack thereof. AVIVA KAMM Certainly fertile ground for claims of KAMM: People with power are often Stokes Lawrence harassment when you think you have not as aware of it as people who do consensual dating in the workplace and not. When there’s a tremendous power you don’t. imbalance at face value someone may think someone’s consent or participation law attorney for 30 years and boiler new employee feel comfortable – he SHUKIS: That can lead to a lot of is voluntary, but it does not feel that way plate harassment policies are common. also followed up later with the female challenges. My personal view is it’s going to the person with less power. That can no longer be the case. At employee. That so easily could have to happen so therefore my advice is Archbright, we are really focused on gone a different direction. to deal with it and deal with it in a way Earlier the first thing you said is to refreshing policies. Make sure your that looks at it in that reality so you can be human. Now we’re saying to be policies cover employee conduct as KAMM: None of us feel an ounce lessen the impact to your workplace human, but only to a point? well as third party conduct (customers, of forgiveness for sexual assault and and potential legal liability. I view it not vendors, board members, anyone the extremes we are seeing right now unlike workplace harassment issues. SHUKIS: Being human is about your employees interact with). Also, in headlines. What’s difficult is for acknowledging that you are sorry they your managers should understand that everybody else to feel comfortable KAMM: #Timesupnow has a website feel this way and thanking them for inappropriate conduct that happens owning any kind of misstep and realizing which I’ve found to be a good resource bringing it to your attention. outside of work with co-workers should harassment happens at many levels on where an employee can go for be reported as well. In your policies, the continuum, not only those most information about things like what is You are careful about your words. address current examples, including extreme examples. harassment and what isn’t harassment. social media examples. An effective Stuff happens whenever you put a bunch SHUKIS: It is challenging for someone complaint procedure should always What are factors to bear in mind when of people in a place together. We want to raise these concerns. It’s very difficult provide employees with a clear process considering setting a claim? people to interact in the workplace for someone to do. Someone is bringing of who to report inappropriate conduct and learn the boundaries of what’s forward a concern and their experience to, with a second individual, typically KAMM: When we’re advising our okay and what isn’t. You must take the of it at that moment is real and you have a high-level manager, identified as an clients, we are also educating them realistic view. For every workplace dating to respond to that without editorializing. alternate contact. Make sure you have a on what a jury pool will hear and what scenario that doesn’t pan out there are robust retaliation statement that protects they’ll be thinking. Right now, the jury couples who meet at work and date for What are best things a company can the victim even if the complaint ends pool is getting educated on this every years – or have a date or two and decide do right now to prevent harassment up having no merit and ensure that day. They’re more likely to see it as that isn’t the way to go. We don’t want from happening in the workplace? witnesses are protected from retaliation. something relatable. So that’s influencing people walking around not talking to the settlement discussions I’m seeing. anyone. SHUKIS: Leaders need to understand SHUKIS: The training should be this is important and the policy and interactive and engaging and deal with BOREK: Also the PR issue. You don’t You have 30 seconds to give a CEO culture goals should be way above the what’s happening now. Leaders need to want to be the next headline. Sometimes an opportunity to lower their risk floor, which is the law. understand it’s not just about their own a settlement discussion is taking place and heighten their awareness of their behavior. If they observe something, and you’re headed that way and then workforce. What do you tell them? KAMM: Having an effective policy if they overhear a joke – they have a a piece of publicity rightly or wrongly requires more than just giving it out at responsibility to do something right then might drive the desire to settle sooner. KAMM: Culture, policies and . You need to enforce the if they can. Example. An organization enforcement. policy which means that when something had a team meeting, fairly small. The SHUKIS: The non-disclosure element comes to you, you respond, do whatever one woman present was the most junior that is a factor of the new tax law. BOREK: Walk the talk. Here’s your wake- level of fact-finding you need to do, member of the team. The meeting Historically it was automatic that you up call. Pay more attention to this than make prompt effective decisions, take happened around lunchtime. One of wanted an NDA and now it’s not always you used to. actions. Then set outlook reminders at 2 the male leaders says to the woman, the case. weeks, 4 weeks, 8 weeks to check in with “Hey, why didn’t you make sure we SHUKIS: Don’t miss this opportunity to that complainant to be sure she’s not the have lunch?” The great news is that the BOREK: I think we will see more improve because it’s so much better to victim of retaliation and is feeling okay. other leader said, “It’s not her to legislative action outside of the new take care of it now than being forced to get lunch!” So, the leader dealt with it tax law addressing confidentiality in when you have a major problem in your BOREK: I have been an at the moment, addressed it, made the harassment issues. business.

THOUGHT LEADERS

KELLIS M. BOREK, JD DIANA SHUKIS AVIVA KAMM Vice President, Labor & Legal Services Attorney, Garvey Schubert Barer Attorney & Workplace Investigator, and General Counsel, Archbright Stokes Lawrence

Kellis Borek is the Vice President of Labor & Employment Diana partners with employers to assist them in the Aviva Kamm represents employees and employers facing Services and General Counsel for Archbright. She oversees wide-range of personnel issues that arise for virtually issues involving discrimination, wrongful termination, Archbright’s team of attorneys and HR Advice professionals every business, for example, workplace harassment and /hour issues and noncompete and nonsolicitation who provide advice and counsel regarding all aspects of discrimination, compliance with wage and hour and paid provisions. She also advises employers on a broad range Local, State and Federal employment and labor law to sick time laws, and managing leaves of absence and of day-to-day and strategic human resources issues, employers in Washington, Idaho and Oregon. On behalf of accommodations. Diana’s clients turn to her for advice and including worker classification, FMLA administration, employers, she bargains labor contracts, responds to NLRB proactive assistance as well as representation in litigation disability accommodation, discipline and I-9 (employment matters and provides advice and counsel concerning wage and administrative proceedings, which Diana approaches eligibility) compliance. She investigates discrimination and and hour, leave laws, discrimination, labor laws, labor contract with an astute business-minded and practical approach. In harassment complaints, conducts employee trainings, and administration and regulatory compliance. Kellis earned her her strategic advice practice, Diana drafts and implements drafts handbooks and policies. Her work with individuals B.A. from Washington State University and her J.D. from policies and procedures, provides critical advice during includes negotiating executive employment contracts and Seattle University. volatile situations, and offers tailored management and severance agreements. Aviva graduated from the University employment training. Diana also conducts workplace of Washington School of Law, and clerked for Judge Anne investigations. Ellington of the Washington State Court of Appeals. 4 PUGET SOUND BUSINESS JOURNAL THOUGHT LEADER FORUM SERIES | SPONSOR CONTENT

Archbright is the go-to resource for employers in Washington, Idaho, and Oregon. At our core, we offer HR Advice and Legal Counsel through annual membership.

Learn about our workplace harassment awareness training for employees and managers at Archbright.com.

ELEVATE WORKPLACE PERFORMANCE 206.329.1120 | [email protected] | Archbright.com

Want to participate in a THOUGHT LEADER FORUM?

Contact Marijane C. Milton:

• Trade Secrets & • Investigations 206-876-5447 or [email protected] Non-Competition • Harassment & Discrimination • Employment & Severance • Disability Accommodation Agreements • Wage & Hour • Executive Compensation • Retaliation • Handbooks & Training • Labor Disputes

pugetsoundbusinessjournal.com