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Employment Background Check Guidelines: Complying with the Fair Credit Reporting Act, conducting credit background checks and running a criminal check to avoid negligent-hiring lawsuits
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- A whopper of a lesson! Complaint process must be clear to your 'average' employee
A whopper of a lesson! Complaint process must be clear to your 'average' employee
- By Mindy Chapman, Esq., Mindy Chapman & Associates
- 12/6/2007 - 9:00am
- 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.
When was the last time you read your company’s reporting procedures? And where did you get it in the first place? Please don’t tell me you copied it from your previous employer’s handbook or, worse yet, pulled a “one-size-fits-all” policy off the Internet without customizing it. A new court ruling shows why you should take it out, dust it off and look it over closely.
One important way your company can avoid liability in harassment lawsuits is to show that you maintain “a reasonable mechanism by which the victim of the harassment can complain to the company and get relief” and then prove that the victim failed to use that procedure. But if your complaint-filing procedure is complex and confusing, a court may green-light the lawsuit anyway, even if the victim ignored the reporting procedure.
Case in Point: Last week’s case offered two delicious servings of advice, so we’re dishing it out in two separate blogs posts. If you remember, 16-year-old Samekiea Merriweather worked at a Burger King in Milwaukee. Her boss was Tony Wilkins, a 35-year-old bachelor who indulged in sexual relations with his female subordinates. Merriweather rejected his advances of hotel liaisons, kisses and rubbings. So, he did what any nasty, rejected and forlorn manager would do—fire her, rehire her and start harassing her all over again.
Merriweather repeatedly complained to shift supervisors. No one did a thing. Once, the assistant store manager tossed Merriweather a phone number to make a complaint. It was a wrong number. He apologized but gave no further info.
From last week’s blog, you know that Merriweather’s mother eventually went to the restaurant and complained to a shift manager. Wilkins found out and fired Merriweather immediately. The teen notified the EEOC, which filed a lawsuit on her behalf. Burger King argued that it shouldn’t be liable because an employee’s mother has no standing to put the company on notice of harassment. But the court ruled otherwise, saying Merriweather’s mother acted as her “agent” in filing the complaint, often as lawyer does.
That piece of the ruling put employers on notice that they must be aware of complaints coming from “unconventional” sources. But the ruling also made an important point about how you should draft complaint procedures that all employees understand. (EEOC v. V&J Foods Inc., 7th Cir., Nov. 7, 2007).
How did this case end ... and what lessons can be learned?
The BK employee handbook informed employees that harassment complaints should be directed to the employee’s district manager. However, employees were never told their names or numbers.
The court said that determining whether a complaint procedure is “reasonable” depends, in part, on the makeup of your workforce. For example, explaining complaint procedures in English to employees who don’t understand English isn’t reasonable. In the same way, failing to tailor a complaint procedure to the needs of young employees also isn’t reasonable.
Here’s what the court said: “An employer is not required to tailor its complaint procedures to the competence of each individual employee. But, if it is part of the business plan to employ teenagers … the company was obligated to suit its procedures to the understanding of the average teenager.”The court said Burger King’s complaint procedures were “likely to confuse even adult employees.”
To add flames to its charbroiled case, Burger King directed complaints to its general managers even if, as in Merriweather’s case, the general manager was the one doing the harassing! The court said “a policy that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law.”3 Lessons Learned ... Without Having to Go to Court
1. Tailor complaint procedure to your audience. Write your anti-harassment policy and reporting procedures so that your main workforce can understand what it says and how to report a complaint. Ask employees for their input, like a focus group, to get feedback on its clarity.
2. Be specific--make sure employees know names and numbers. If your policy says employees can complain to upper-level supervisors by title, make sure employees know who they are and how to contact them. If you have a hotline service, make sure it’s clearly communicated that it’s for harassment, discrimination and retaliation complaints. (BK had a “hotline” number on paychecks, but the statment only said it was to “comment” about the company.)Also, make sure you give out the right number! Call and test it before printing it in a handbook.
3. Train your managers to be sensitive to notice. How did these managers miss the red flags of “notice” that Merriweather was screaming for help? They weren’t trained to be effectively sensitive. We are just days away from 2008. No employer today can give a court a straight-faced reason for not effectively training their managers. The court would just consider it a “whopping” excuse.Employment Background Check Guidelines: Complying with the Fair Credit Reporting Act, conducting credit background checks and running a criminal check to avoid negligent-hiring lawsuits
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