Harassment in the Workplace: Staffing in the Midst of the #MeToo Movement

Harassment in the Workplace: Staffing in the Midst of the #MeToo Movement

You can’t turn on the news, look at a paper, scroll through a newsfeed, or grab a magazine without seeing another claim of sexual harassment in the workplace. The #MeToo movement has gained momentum with some prominent, high profile harassment cases and accusations. The result has been a heightened sensitivity to harassment claims in the workplace both in and out of the spotlight.

The effects of harassment in the workplace can be significant, not only for victims, but also for employers who can face fines, legal fees, loss of productivity and low employee morale, as well as potential public relations nightmares.

The staffing industry has taken notice. The 2018 ASA Staffing Law Conference held last week in Washington D.C. kicked off with a two-part session on Workplace Harassment. Presented by attorneys Neil Alexander and Nina Markey, both of Littler Mendelson PC, as well as Katherine Beattie of Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo PC, Part 1 of the workshop focused on training and prevention, while Part 2 centered on investigation and remediation measures.

As a staffing company owner or manager, it’s critical to be aware of the legal ramifications of harassment claims, and what you can do to protect your company and your employees.

The economic impact of harassment in the workplace is staggering: in 2017 the U.S. Equal Employment Opportunity Commission received 26,978 charges alleging harassment. Furthermore, $125.5 million in monetary benefits were awarded by EEOC in 2017 for harassment-based claims, which one-third or $46.3 million was awarded just in sexual harassment charges. If that number surprises you, you may be even more surprised to learn that it is only half of the picture.

Companies also incur the costs of defending against harassment claims. But perhaps even equally important (if not more so) is the non-tangible costs for employers. How do you put a value on your company’s reputation in the industry, workplace moral, client relationships and finally, psychological and emotional damage to those involved? On the flip side, your relationships with clients are at risk as well.

As staffing company owners, you face challenges and costs of harassment in the work place that are unique to the staffing industry. How do you manage your temporary workers who are located at client sites across the country and supervised by client employees? Preserving client relationships while protecting your workforce is critical. Coordinating and partnering with clients to prevent, investigate and defend claims is necessary.  

Neil M Alexander, Esq., Co-Chairman with Littler Mendelson PC, shared the Top 5 Frequent Legal Concerns for Staffing Firms. Check out the list – is there any area in which your firm falls short?

  1. Smaller Firms – No Harassment Policy. No matter the size of your staffing firm, put a Harassment Policy in place. Just as important is to ensure all staff receives a physical copy of the policy. It is also recommended to document the receipt of the policy. For assistance in developing your Harassment Policy, check out the ASA website for a model policy.
  2. No Training to the Assigned Workers. Training needs to include all employees and needs to be completed on a regular basis. Implement a regular training that is live and/or interactive with real-life examples. Have a supervisor or external expert conduct the training.  Ensure training is given to all employees, with management present. Be aware of state harassment training requirements. Finally, document employees receiving training.  
  3. Failure to properly investigate when the alleged harasser is the customer’s employee. As early as 1997 the EEOC issued guidance stating that staffing agencies are responsible for discriminations, retaliation, and harassment that their employees confront at clients’ work sites and must take prompt remedial action once they become aware of such conduct.  
  4. Alleged retaliation by staffing firm by only moving the victim to a new customer. Many times the complaint is found to be frivolous, but adverse employment action taken by the company is deemed retaliation. Do not fire them both.   
  5. Assignment ends after the complaint – Customer ends the assignment.  Did you look for a new assignment for the employee?   

While having strong harassment policies in place is a great start to protecting your company and employees, prevention is the best tool for eliminating harassment in the workplace.

  • Neil outlined the following best practices for harassment prevention:
  • Implement regular training
  • Establish an effective complaint or grievance process
  • Re-evaluate your company’s policies and practices, and ensure compliance from the top down  
  • Employ an open door policy that encourages reporting  
  • Foster a positive and open-minded company culture
  • Properly screen new clients along with obtain copies of client harassment policies and/or complaint procedures
  • Avoid “tricky” client requests, including preferences for employees of a certain class  
  • Review contracts for one-sided provisions

The cost of harassment in the workplace can be high. However, if employers take the appropriate preventative steps, the likelihood of incidents can be greatly reduced — with the added benefit of fostering an overall workplace environment of trust and respect.