By Robert G. Brody and Katherine M. Bogard
Family businesses are not immune from sexual harassment and discrimination claims. You have the same risks as everyone else, plus some special considerations. Here are tips to think about.
Encourage Employees to Speak Up
Courts and governmental agencies suspect a “chilling” effect when non-family employees are asked to stand up to the family. Therefore it is assumed employees are tacitly discouraged from objecting to misconduct by family members because they fear retribution. To combat this perception companies must implement tools and mechanisms to protect those who speak out. This is not only the right thing to do but a smart choice from a defensive perspective.
A helpline is a good option to combat the chilling effect. An outside HR consultant can staff the line or maybe a non-family member (assuming he/she is perceived able to confront the family on such issues). The HR consultant is an excellent option as he/she has the ability to be an objective outsider in assessing the employee’s claims. Regardless of who takes the call, the employee will likely be more at ease speaking with a non-family member.
Alternatively, and less expensive, is an anonymous hotline, where callers can leave a message.
Regardless of your method, be sure all complaints are treated seriously and addressed. Also, ensure some method whereby the employee knows her issue was heard, investigated and action was taken as needed. Sometimes a bulletin board – wooden or electronic – can serve as a place for sanitized issues to be posted and appropriate responses to be given.
Lead by Example
Management should proactively encourage employees to bring their issues to HR, the helpline, or whatever other mechanism you created. Leaders should raise this at every manager meeting, and any time anyone raises an issue one on one. If you say it loud and long enough, employees will realize you mean what you say. Employees also have to see, in concrete ways, there is no retaliation when a concern is expressed. While proving this negative is hard, the flip side is clear: you cannot discipline or harm an employee in any way, even if you do not believe their concern is valid. In practical terms, this means you cannot reduce an employee’s hours; give them a less desirable shift; write them up; or terminate them. If your system is truly anonymous, you cannot try to determine who raised the issue. This does not, however, make an employee bullet proof if they violate a separate company policy. Sometimes employees use a complaint procedure as a shield for misconduct and this should not be allowed. They can be disciplined, albeit cautiously.
Do Not Investigate Yourself
Once an employee complaint is received, the company must conduct an investigation. For a family business, a key is who conducts the investigation? If a family member is involved in the allegations, a non-family member should take over. We suggest your HR department, an outside HR consultant or, if it could rock the entire company, maybe labor and employment counsel. (The latter alternative has the added benefit that the attorney-client privilege applies to the results of the investigation.) It is a hard sell to your employees – much less a judge and jury – that an internal investigation was non-biased when the investigator is related to the alleged harasser!
Robert G. Brody is Founder and Managing Member and Katherine M. Bogard is Senior Counsel at the law firm Brody and Associates LLC. rbrody@brodyandassociates.com and kbogard@brodyandassociates.com or phone (203) 454-0560.
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