The following article discusses session one in the IR Global Virtual Series on 'Workplace Investigations: Process and enforcement in the age of
#MeToo

Nevada – Laura
Thalacker (LT) In the US, there are both federal and state law
considerations – in my case for the state of Nevada. Generally, employers will
maintain a written policy prohibiting harassment discrimination, and explaining
what happens in the complaint process.

Employees sometimes follow the employer’s complaint policy,
but sometimes they don't. Generally, in the US, you must have what's called a
“bypass procedure,” in your harassment policy, where employees can choose who
they're going to report to. For example, if it's their immediate supervisor
who's harassing them, they will obviously not feel comfortable going to that
supervisor. In such a case, they are allowed to go outside the chain of command
and report to someone else within the company. I have clients who apply this
rule in different ways.

Normally employees always have the right to go to the HR
department, but my clients often go beyond this. I represent a lot of small and
mid-size employers, and many will allow employees to go to an Executive Vice
President, or even the President of the company, in order to show that these
complaints are taken very seriously from the get-go. Complaints can be verbal
or written.

If the complaint is verbal, we always recommend that it be
reduced to writing, meaning that either the employee writes it out themselves,
or that it is typewritten and signed by the employee. If the employee is not
willing to write out the complaint, then the HR department should do that
typically and then ask the employee to sign it. However, even if the employee
refuses and the complaint is never reduced to writing or signed, an employer
with knowledge of a problem would still have an obligation to investigate.

California – Rebecca
Torrey (RT) The process is similar in California, however, like most issues
regarding employment in California, there are additional legal requirements
that heighten the importance of some of those practices.

Firstly, regulations that were implemented two years ago
require employers of all sizes to have a written policy against harassment. The
regulations itemise what needs to be in the written policy, for instance, it
must include at least two people that an employee can complain to. One may be
their supervisor, and there must be one additional management position to whom
they can raise concerns.

The written policy also must spell out the internal
complaint process in adequate detail to enable employees to understand what
they can expect from the complaint investigation and what they feedback they
will receive as to the outcome.

The written policy must also be acknowledged in writing by
all employees. Best practices would include providing the policy against
harassment as a standalone document distributed annually and acknowledged by
all employees, in addition to including it in the employee handbook.

A year ago, the Department of Fair Employment and Housing,
the California state agency charged with enforcement of harassment and discrimination
laws, issued guidelines setting forth detailed instructions for employers about
how to conduct a fair and thorough workplace investigation. As a result,
employers are scrambling to establish an internal complaint process that meets the
requirements of these guidelines and offers organizational protection in case
of harassment complaints.

England – Shilpen
Savani (SS) The complaints procedure hasn't changed at all in England
following #MeToo.

The position is generally similar to the American position,
in that the employer would receive the complaint from an employee, with the
method for processing it normally found within the employer’s staff handbook.
That should contain an anti-harassment policy and guidance on how to deal with
any complaint.

A complaint of harassment will normally be dealt with
according to the employer’s anti harassment policy and this will be similar to
dealing with an internal grievance. Criminal and unlawful conduct can also be
dealt with through one form of whistle blowing report or another.

There should be an internal means for doing that via a
nominated whistle-blowing officer, but quite often employers will also arrange
for access to a counselling or advisory hotline that deals with matters of a
criminal nature or a legal nature, and any reports of unlawful conduct.

There is, ultimately, the resort to regulatory authorities,
but going to the police tends to be the last resort. The very first port of
call should be the employer, where they should have proper procedures in place.

Germany – Dr.
Sebastian Schröder (DSS) In German employment law, we deal with the topic
of sexual harassment in a very restrained way, although, allegedly, one in
every two employees has already experienced sexual harassment in the workplace
according to a recent study.

We have a general act on equal treatment which partially
deals with the whole topic, however, there's no statutory guideline or policy
for employers on how to deal with such incidents.

There’s hardly any employer who has a guideline or policy or
works agreement with the Works Council explicitly detailing with the whole
process when it comes to sexual harassment.

So, it is basically very much up to the victim in each case
and how he or she wants to deal with the topic, and who they want to talk to.
This is usually HR, of course, but it may also be the supervisor or a
co-worker. In Germany the Works Council does play a role in such incidents.

Switzerland – Monika
Naef (MN) In Switzerland, we have a very similar system to Germany. There
is a Gender Equality Act which has prior to the #MeToo movement already allowed
victims to either make a complaint towards the employer, or to go directly to
the state arbitration body, to stop the sexual harassment.

Such a demand will either be aimed at requiring the
aggressor to cease and desist the sexual harassment or impose a declaratory
judgment against the employer for allowing such behaviour and a damage claim.
Protection is also granted by other bodies of law which all pertain to the
employer's duty of care for the well-being of the employee and protect
employees from any harassing behaviour.

As a minimum standard, an employer should conduct staff
education and clearly state that sexual harassment will not be tolerated and
will draw consequences. Some larger companies have extensive internal
regulations. In addition, criminal proceedings can be instigated, however, that
is much more burdensome on the victim than going through the state complaints
procedure outlined previously.

As a rule, the employee would make a complaint to their
supervisor, or to the human resources department or to another management level
complaints officer. Both the criminal proceedings and the complaints
proceedings can be done in parallel, but it might be a little bit burdensome on
the victim to have to go to through two different investigations.

Netherlands – Rachida
el Johari (RJ) In The Netherlands, we have this general notion that an
employer must take care of or ensure a safe environment for his employees. We
have different laws to safeguard that obligation.

The first contact for an employee who experiences harassment
is generally a person of trust within the company. That could be a company-appointed
person with whom employees can direct any complaints that they do not wish to
share with their managers or HR. It could also be an external party, such as
the company doctor, whose services are retained by the company.

A third way is through a policy directing employees to raise
any concerns they have to their line manager, their HR business partner or any
third party that is mentioned within that policy. Anonymous hotlines are
sometimes used, but not encouraged, in The Netherlands.

In summary, it is important to have a proper policy in
place. Employers who want to be compliant or take this topic very seriously
will generally have proper policies in place that are made known to the entire
staff. They will also organise occasional all staff meetings in which the
information is shared, or the awareness is created to help employees and
encourage employees to speak up in the event of any unwanted situation.

France – Lionel
Paraire (LP) As in the Netherlands, there is a general obligation on
employers in France, to ensure the safety and security of employees.

I recommend to clients that an investigation (neutral and
discreet) is launched as quickly as possible when an employee reports sexual
harassment. This is firstly to protect the victim, but also because any
disciplinary measures against the aggressor will be time barred if it has not
been launched within two months of being brought to the attention of the
employer. An immediate reaction is then required from the employer.

Investigations will be carried out by the general
management, but, in most cases, the HR management is involved. There is no
statutory procedure here, nor formalism, except if provided by a policy or,
more often, by the internal regulations (“règlement intérieur”) that are
mandatory for companies with more than 20 employees.

And of course, if there is a formalism provided by
regulations, the HR manager and the investigator will have to follow this in
order for the procedure to be binding against the aggressor.

Criminal investigations could be held in parallel, but, of
course, this would be done by the police. Here, we are only speaking about the
internal approach led by the company and, most often, by the HR team.

Switzerland – (MN)
In terms of procedure, there's also one further procedure that the victims
could address in Switzerland. This is based on the act on assistance of victims
in criminal cases, which allows victims to obtain help and assistance both in
psychologically, but also in financially for their case without even having to
file a criminal charge.

Minnesota – Anne
Radolinski (AR) For context to the discussion, federal and state statutes
in the United States, and, depending on the jurisdiction, local city
ordinances, prohibit discrimination and harassment, including sexual
harassment. There are jurisdictions, such as California, where a written
harassment policy and training with respect to harassment in the workplace is
required.

Even where not required under applicable state or local law,
a well-written harassment policy (which the company can demonstrate was
followed) is critical to the defence of a legal claim in this arena. Most
employers, particularly in the current post-#MeToo environment, have written
policies in place prohibiting harassment and protecting individuals against
retaliation for reporting concerns, participating in an investigation under the
policy, and otherwise exercising their rights under federal, state, and, where
applicable, local law. Importantly, the policies will inform the workforce as
to who to contact in the event the individual has witnessed, been informed of,
or has experienced harassment or inappropriate behaviour.

The wording of the policies varies widely. Generally speaking,
the individuals are directed to reach out to individuals in leadership:
supervisors, other members of management, the human resources professionals at
the company, and the board of directors if the concern relates to Chief
Executive Officers of the company. A well-written and conceived harassment
policy is a necessary component of a risk management strategy; however, in the
current environment, written policies should be viewed as only one component of
an overall risk management strategy with regard to harassment in the workplace.
Policies alone have done little to prevent harassment in the workplace and to
protect employers from costly sexual and other harassment claims.

Employees also have the right to file a claim directly with
the federal Equal Employment Opportunity Commission, which is the federal
agency charged with enforcing a number of the major federal human rights laws
or a state or local human rights agency, depending on local law. The federal
law – Title VII – prohibits harassment in employment based on sex, and a number
of other protected class statuses, and applies to employers who have 15 or more
employees. In some states, including Minnesota, the individuals may either move
directly to the filing of a lawsuit, or may file a claim with the state or
local human rights agency. State and local statutes often apply to employers
with less than 15 employees. As an example, the Minnesota Human Rights Act
covers all employers regardless of size.

Contributors

Monika Naef (MN) DUFOUR – Advokatur – Switzerland www.irglobal.com/advisor/monika-naef

Anne Radolinski (AR) Fredrikson & Byron – U.S –
Minnesota www.irglobal.com/advisor/anne-m-radolinski

Rebecca Torrey (RT) Elkins Kalt Weintraub Reuben and
Gartside LLP – U.S – California www.irglobal.com/advisor/rebecca-torrey

Dr. Sebastian Schröder (DSS) AQUAN Rechtsanwälte – Germany www.aquan.com/lawyer-profiles/dr-sebastian-schroder/

Rachida el Johari (RJ) SAGIURE LEGAL® – Netherlands www.irglobal.com/advisor/rachida-el-johari

Lionel Paraire (LP) Galion – France www.irglobal.com/advisor/lionel-paraire

Shilpen Savani (SS) gunnercooke llp – England www.irglobal.com/advisor/shilpen-savani

Laura Thalacker (LT) Hartwell Thalacker, LTD. – U.S – Nevada
www.irglobal.com/advisor/laura-thalacker

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