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BCLP At Work

Harassment

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Investigating Claims of Harassment: A Step-by-Step “How To” Part 3: Interviewing the Accused and Other Witnesses

You have received a complaint of harassment and interviewed the complainant.  In this third part of a six-part series, we discuss interviewing the accused and other witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Interviewing the Accused

At the beginning of the meeting, the investigator should:

  • Explain that a complaint of sexual (racial, etc.) harassment has been brought against the accused; that the Company is conducting a prompt and thorough investigation to determine if inappropriate conduct has occurred; and that no conclusion has yet been reached.
  • Identify your role as investigator.
  • Tell the accused that the Company prohibits retaliation against a complainant, and anyone the accused suspects may have participated in any way in the investigation.
  • Explain that the accused must provide a truthful account of what occurred, and identify all evidence and witnesses who may have relevant knowledge.
  • Explain that efforts will be made to share information on a need-to-know basis only, but do not promise confidentiality.
  • Explain the expected investigation procedure and the expected time frame involved.

During the Interview, the investigator should:

  • Explain the details of the allegations against him/her (the investigator need not disclose the source of the information, but usually should disclose the allegations in enough detail so that the accused can respond). Ask about the alleged conduct/comments first, before identifying the complainant.
  • Obtain the accused’s account of what occurred, as specifically as possible. (Depending on the circumstances, it

Investigating Claims of Harassment: A Step-by-Step “How To” Part 2: Interviewing the Complainant and Planning the Remainder of the Investigation

You have received a complaint of harassment.  What next?  In this second part of a six-part series, we focus on interviewing the complainant and planning the remainder of the investigation.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

The interview of the complainant is usually the first and most important interview that will be conducted, and therefore, should be carefully planned beforehand. This interview, and all others, should be conducted in a private, neutral meeting space at your location. The following provides an illustration of the areas that should be covered by the investigator during the interview of the complainant.

At the beginning of the meeting, the investigator should:

  • Identify his/her role as investigator (i.e., you are a neutral conducting an investigation on behalf of the Company).
  • Ask the complainant whether he/she is comfortable with the investigator as the investigator and believes that he/she can conduct an impartial investigation. If the complainant is not comfortable with the investigator or indicates a belief that the investigator cannot conduct an impartial investigation, the investigator should try to identify another person to conduct the investigation. If the investigator is having difficulty with this, an HR supervisor or the Company’s attorney should be contacted.
  • Explain that the Company is conducting a prompt and thorough investigation to determine whether inappropriate conduct has occurred and, if it determines that it has, will take appropriate corrective action to stop it.
  • Assure the complainant that

Freer authors article on social networking and sexual harassment in the workplace

January 22, 2018

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London Partner Gary Freer, head of Bryan Cave’s UK Employment Team, authored an article featured Jan. 18 in Personnel Today examining the impact of digital technology, such as professional social networks, on sexual harassment in the workplace. “Even if a statement is made anonymously – under cover of a username – if it is likely to have been made by an employee (as, in these networks, will almost always be the case) the employer will be held liable unless it can establish its statutory defence,” Freer explained. Read the full article here.

Investigating Claims of Harassment: A Step-by-Step “How To” – Part 1: The Complaint

What if you were the Human Resources representative that received a complaint that Harvey Weinstein, Matt Lauer, Charlie Rose, or any of the other number of accused sexually harassed an employee?  What if you were the in-house counsel and received the complaint?  With the rise of sexual harassment allegations receiving increased scrutiny, employers need to have proper procedures in place for handling claims of sexual and other harassment in the workplace.

This is the first of a six-part series that will address guidelines and suggestions for conducting investigations of harassment complaints. Each harassment investigation, however, is different, and any investigation should be tailored to fit the particular circumstances.

What Complaint?

A harassment “complaint” need not be written, nor does a “complaint” have to actually be made to anyone. Most of the time, an employee brings a complaint forward to a supervisor or to Human Resources. However, there are times that supervisors or Human Resources may “hear through the grapevine,” “shop talk,” or general remarks that someone believes that he or she has been harassed.  In these informal “rumor” situations, just as in the situation where a formal complaint is made, prompt investigation and follow-up should be immediately undertaken. Constant vigilance and careful monitoring is one of the ways that we can ensure a workplace free of harassing behavior.

As soon as you become aware of a harassment complaint, consider:

  • Harassment investigations must be conducted promptly. From the beginning of the investigation, until the complaint file is closed (meaning that

The Tax Cuts and Jobs Act Impacts Settlements of Sexual Harassment and Abuse Claims

January 5, 2018

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The recently enacted Tax Cuts and Jobs Act eliminated a business expense deduction for settlements of sexual harassment and sexual abuse claims that are subject to confidentiality restrictions.  Specifically, a “settlement or payment related to sexual harassment or sexual abuse,” and the “attorney’s fees related to such a settlement or payment,” are no longer a deductible business expense “if such settlement or payment is subject to a nondisclosure agreement.” IRC §162(q) (added to the IRC by §13307 of the TCJA).  Section 13307 became effective on December 22, 2017.

This new Code provision raises many questions, which the IRS has not yet addressed, including:

What is the impact of IRC §162(q) on the settlement process for sexual harassment or sexual abuse claims?

Employers will need to weigh the additional costs of a nondisclosure provision, which include the tax on the settlement payment and related attorney’s fees, and the value of a nondisclosure provision to the employer with respect to the specific claim asserted by an employee.  Rather than “boilerplate” in a settlement or separation agreement, nondisclosure provisions will need to be assessed on a case-by-case basis.

Attorneys for both employers and employees will need to track time separately for “attorney’s fees related to such a settlement,” since an employer may determine that a nondisclosure provision is an essential term of the settlement, and then neither the employer’s nor the employee’s attorneys’ fees related to the settlement will be deductible.

What attorney’s fees are “related to such a settlement”?

Certain fees appear

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