Walk the Compliance Walk in 2018
The New Year is prime time to take a look at your Code of Conduct and compliance policies both to consider whether you are up to date on all applicable requirements, but also so that you are fluent in your own processes and prepared to take prompt and compliant action when issues arise. Those policies likely already include a prohibition against unlawful harassment and a process for employees to report concerns about harassment or other possible misconduct. But policies and procedures aren’t enough without a comprehensive outlook and culture supporting equal employment opportunity. So how will you walk that walk?
The ongoing media attention on sexual harassment presents a challenge to employers across industries and sizes to ensure that they have more than just paper commitments to a harassment-free workplace. The current climate also provides employers with the opportunity to think more broadly about what kind of company culture brand you want to convey to employees, as well as the public. As you refresh your recollection (as lawyers like to say) of your Code of Conduct and compliance policies, consider:
Do you clearly articulate a top-to-bottom commitment to achieving business goals and promoting a productive, positive culture?
Do your policies and Code properly reflect your company brand and culture?
Is the language of your Code and other compliance policies crafted so that employees understand them as clear and sincere?
Do you include and commit to effective and innovative avenues for employees to raise concerns without fear of retaliation?
With confidence in the content of those written commitments, what more will your organization do to demonstrate these commitments? Legal compliance is rooted in preventive practices. It is more important now than ever to conduct harassment prevention training. Consider innovative training platforms with content that is specifically-tailored to your organization and its different employee populations, including training for you Board of Directors and C-Suite executives. Consider how you can weave your company brand and culture into this training so employees walk away feeling energized, not just about your commitment to anti-harassment initiatives, but about their role in the company. Also consider whether there are opportunities to take the pulse of your employees on workplace culture concerns and incorporate those concerns into training and other preventive efforts.
If you do receive complaints, your internal investigation processes should be primed and ready to go. The best time to develop these processes are when you are not faced with an actual complaint. This “peace time” provides the opportunity to consider objectively how investigators will be assigned (e.g., HR, inside counsel, outside counsel); forms and other guidance for developing an investigation plan; factors for identifying witnesses; guidelines for investigatory interviews; goals for timelines; requirements for information gathering, review and preservation; and public relations considerations. Ultimately, the investigation will consider whether remedial action is appropriate. Again, here is where you walk the walk. While disciplining the direct actor may remedy the immediate situation, it may not satisfy the Company’s commitment to prevent future harassment. Think of your Code, policies, training and internal investigations practices holistically as they relate to and promote the organization’s EEO culture through the tone and content of employee-facing communications, responsiveness, and leading by example.