By Scott F. Cooper and Brooke T. Iley
As the breaking news tells us every day, we are in a transformative time when it comes to how harassment is reported and handled in the workplace. From Hollywood to Rockefeller Center and everywhere in-between, employers must be prepared. Blank Rome’s unique multi-disciplinary approach includes highly-skilled lawyers from our Labor & Employment, Insurance Recovery, White Collar Defense & Investigations, and SEC practice groups. We represent companies, boards of directors, senior executives, and individuals, including public officials, who confront a wide range of harassment allegations. We also help companies develop and update their current policies and procedures to help prevent–or at least mitigate–any harassment issues that may arise.
Below are action items employers should consider for effectively preventing and responding to harassment claims.
REVIEW INSURANCE, COMPANY POLICIES, AND COMPLAINT PROCEDURES
- Review your insurance policies: Is there coverage for the entity? For employees? Third parties? What are the limits?
- Do policies fit your current business model?
- There may be coverage even if the accused employee is a senior executive and/or the company has been sued for punitive damages.
- Do reporting channels really work?
COMMUNICATE CULTURE CHANGES AND EXPECTATIONS
- Zero tolerance means zero tolerance.
- No complaint is too small.
- Do not look the other way based on the status of the accused.
- Promote consistent treatment.
- Set guidelines for social events.
- Consider an “absolutely no dating at work” policy.
ADDITIONAL LEGAL CONSIDERATIONS
- Do not issue non-disclosure agreements without speaking to legal.
- Do you need separate counsel for conflicts with executive employees?
- Develop a public relations strategy–do not wait until a crisis hits to come up with a plan.
- Create investigatory protocols with assistance from legal.
- Use sophisticated and well-trained interviewers.
- Consider confidentiality and privilege issues (attorney-client and work product).
- Check documents–don’t just trust verbal statements.
- Conduct may trigger criminal charges
- Structure investigation not to impede
- Every employee is a potential witness.
- Consult outside counsel as to whether misconduct should be reported to prosecutors.
- Determine whether to waive privilege to aid in the criminal investigation, including the release of report to the prosecution.
PUBLIC REPORTING REQUIREMENTS
- Public companies need to be proactive and forward-thinking on disclosure obligations when involving director, executive officer, or key employee sexual misconduct.
- Proactively protect against shareholder derivative actions.
- Keep C-suite and board of directors in the know.
Scott F. Cooper is a partner and co-chair of the Labor & Employment group at Blank Rome LLP. He can be reached at 215.569.5487 or email@example.com.
Brooke T. Iley is a partner and co-chair of the Labor & Employment group at Blank Rome LLP. She can be reached at 202.772.5816 or firstname.lastname@example.org.