WESST Blog

You might call it “employees gone wild.”

Several stories have appeared in the news lately about employee behavior that seems to almost defy belief. Middle-aged workers posting a “kick me” sign on a coworker’s back – and then kicking him. Sophomoric assessments of female attractiveness and possible engagement in prostitution posted on public Twitter and Facebook accounts. Male employees forcibly “grinding” on a female employee and making crude jokes about sexual assault in front of her.  In fact, a beloved television and publishing personality (I am sure you know who I mean) just lost millions of dollars in contracts and endorsements in a chain of events that started with a hostile-environment harassment lawsuit filed against one of the restaurants in her umbrella of companies. A stunning example of how “looking the other way” at bad employee behavior can cost companies millions of dollars – not to mention their public reputation, etc., etc.  Sometimes, it’s hard to believe that these people in the news are grown adults, working as professionals. You’d think people would know better by now, right?

Small business owners and managers always need to be on the lookout for “employees gone wild” situations, and address problematic behavior – even if it was intended “in good fun” – as soon as possible.  Can putting your “employee gone wild” in check help you avoid an employment lawsuit? Yes. But avoiding lawsuits is only part of the goal.

Here’s what many small business owners don’t realize: when an employee retains a lawyer and threatens to sue, even if the case never goes to court, it creates big problems. Employee actions take time, energy, and money to resolve, even if the complaint never sees the inside of a courtroom. In cases where an employee complaint triggers an OSHA, EEOC, Department of Labor, or NM Department of Workforce Solutions investigation, there will be months of lost time, unexpected expense, and sleepless nights the business owner will have to cope with.

The best way to avoid painful and costly actions is to resolve, from Day 1 of your business operations, that you will create a safe, equitable, and harassment-free workplace where employees know what is expected of them, and you (and all your managers) know, follow and enforce written employment policies.

Remember that an employee’s perception is their reality. It may be that you, or another one of your employees, did not intend to discriminate, harass, or retaliate. That might, in some cases, provide you with a defense in court, but will not stop the employee from taking action. The employee’s perception of the event is what triggers them to take action, not their evaluation of the other employee’s intent.

So how can you create a safe, equitable, and harassment-free workplace (or at least try to)? Here are ten tips.

1. Don’t discriminate when you hire. Don’t allow any of your managers to discriminate either. Hire employees on the basis of their Knowledge, Skills and Abilities, their experience and/or education, and most importantly, their ability to do the job. An applicant’s physical appearance, accent, name, style of dress (as long as it’s workplace-appropriate), visually-displayed religious symbols, or supposed/assumed disabilities should NEVER be discussed in making hiring decisions.
2. Do not allow an environment where employee “horseplay,” practical jokes, sexual innuendo, display of inappropriate visuals (like posters or cartoons) or anything else that can constitute unsafe working conditions or harassment, is accepted. Even allowing employees to call each other certain nicknames (“grandma,” sexualized descriptions, etc.) can make you vulnerable to an action. Put a stop to problematic behavior as soon as you see it, or it is brought to your attention.
3. Take all employee complaints of harassment and discrimination very seriously. There is never an excuse (too busy, tired, bad timing, employee is overdramatic, etc.) not to LISTEN CAREFULLY to an employee’s complaint and ACT PROMPTLY to investigate their complaint. Do not “put off” an employee who is alluding that they have a complaint or ask them to come back later. Once an employee complains, you need to commence your investigation within 24 hours.
4. Take responsibility for keeping your workplace safe and free of hazards. Keep an eye out for hazardous conditions as you walk around your facility, and consider making time every week or month to take a quick tour of your workspaces looking for hazards. Take prompt action to remedy hazards or direct others to do so.
5. Communicate clearly with employees. Make sure employees understand what is expected of them in terms of attendance, notifications, performance, etc. Keep up with your performance-management process. Don’t put off employee reviews because “everyone is too busy.” Consistent documentation of employee performance can help tremendously if someone questions whether an action involving an employee was fair.
6. Similarly, document employee performance or discipline issues. Don’t just talk to the employee and move on – write down a record of what you discussed and what was decided, for your files. Note on your calendar when the conversation took place, and what was discussed. Use written warnings when appropriate.
7. Use the same performance-management and disciplinary methods/process with ALL your employees. Don’t use verbal warnings with one employee, and written warnings with another, for the same type/level of offense. If you give one employee a raise or promotion without doing a performance evaluation first, you can’t require another employee to wait for an evaluation before promoting them, or raising their pay.
8. NEVER retaliate against an employee for exercising their rights under the law. Giving someone the “cold shoulder” in the break room, “forgetting” to invite them to a lunch all other employees are invited to, or gossiping about them to others, can all be considered retaliation. Whether it is a pregnant employee taking family leave under FMLA, an injured employee who has filed a workman’s comp claim, or someone who has reported an unsafe condition to OSHA, DO NOT act negatively towards that employee or allow your other employees to act negatively towards them either.
9. Make sure you have a technology policy in place, and then enforce it. Monitor computer activity and email periodically. Remember that things employees see on another employee’s computer can contribute hostile-environment harassment or discrimination.
10. Finally, educate your employees. Your company may not have to comply with certain federal or state employment laws yet, but as you grow, your current employees may move up and become managers, and they need tools to understand their responsibilities under the law.

Remember: your goal is a safe, harmonious, productive workplace, regardless of whether or not you are technically required to comply with a given law. Employees are more informed than ever about their rights, and can also research their rights very easily. There have also been major cultural changes in the last few years that have resulted in a low tolerance for discrimination and perceived “unfair treatment” in most employees. Be smart and think proactively! The long-term health of your business is at stake.