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Can temporary employees temporarily use your harassment reporting procedure?

By Mindy Chapman, Esq., Mindy Chapman & Associates
3/12/2008 - 2:00pm
Discrimination & Harassment

Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

If your organization leases temporary employees from an agency, what should you do if one of them complains she’s being harassed? Who should do the investigation—your organization or the temp agency? A new ruling says that even though temps aren’t your employees, you’d better take quick action to investigate the situation and stop the conduct—and the agency should do the same.

Case in Point: Kristen McGee worked as a temp for Kelly Services. The agency contracted McGee out to a General Motors parts plant. Right away, the plant manager allegedly began subjecting McGee to non-stop harassing conduct. He asked her about her sex life, made suggestive comments and put his arm around her frequently.

After several months of putting up with it, McGee finally approached a GM manager to ask if she could use the GM hotline to report the harassment. The manager alerted HR and within one day GM initiated an investigation, which included contacting Kelly Services. Kelly Services initiated its own investigation as well.

McGee wasn’t given a copy of the GM harassment policy, but she was given the one from her employer, Kelly Services. Also, she did know about the GM hotline because it was communicated in postings throughout the plant.

McGee filed a claim with the EEOC against GM alleging sexual harassment and retaliation. She also claimed that GM never completed the investigation, which it had not. But GM countered by saying that it shouldn’t be liable because it stepped up and investigated right away. (EEOC vs General Motors Corp., SV. Miss.)

How Did This Case End … And What Lessons Can Be Learned?

GM was able to win dismissal of the case. Reason: The company demonstrated to the court that once it received notice of McGee’s complaint, it acted immediately to contact her employer and began its own investigation.

The court underscored that GM began remedial action “within a day” even though GM couldn’t complete the investigation because the alleged harasser went out on an emergency sick leave. The fact that GM was contemplating taking remedial action against him upon his return was critical.

Lessons Learned … Without Going To Court

1. Temp employee? Leased? It doesn’t matter. Once your organization receives a harassment complaint, it must begin prompt effective action to stop the harassment and prevent it from continuing.

2. Remember the “one day rule.” The court noted how important it was that the investigation process began within one day. Courts are more likely to give you an edge if you start the process within 24 hours.

3. Post your hotline and reporting procedures everywhere. It’s a best practice to only give your policies to your employees, so there’s no confusion about who are your employees and who are not. But it’s also a best practice to post your reporting procedures everywhere so that temporary employees, guests, customers and other third parties can use it if they need to.

Tags: customers, employees, harassment complaint, hr, sexual harassment, sick leave

Small Business Tax Deduction Strategies: 10 tips on Section 179, home office write-offs for the self-employed, tax deductions for vehicles, rental depreciation, real estate capital gains and more!