Home care workers and Job Harassment
Some who employ home care workers may think that sexual harassment law does not apply to them. If this is your thinking, you need to read more…
Here are some pointers on sexual harassment law. The example given is California law. Similar laws may apply in your state, though states vary in the way they treat this problem.
1.) California’s harassment prevention law (FEHA) applies so long as you have one employee or independent contractor!
2.) California law protects both employees and independent contractors from harassment by supervisors, coworkers, clients, customers, contractors, consultants, vendors, suppliers—anyone with whom the workers have contact in the course of performing their job. Is this true in your state?
3.) Sexual harassment is only one of 10 categories of illegal harassment.
4.) California employers have an affirmative duty to prevent workplace harassment of their employees and independent contractors. For example:
- Post & circulate a harassment prevention policy with a complaint procedure and non-retaliation guarantee.
- Train employees (especially supervisors!) to ensure that they understand what type of conduct—verbal, physical, and visual—is prohibited by your policy and when and how to report inappropriate conduct.
- Ban jokes (including e-mail humor) that target the protected groups listed in bullet 3 above. Misguided jokes and forwarded e-mail messages are the number one source for harassment complaints! It doesn’t matter if the “joke” is directed at a particular employee or a group at large.
- Enforce your harassment prevention policy! (See bullets 5 to en.
5.) Never ignore or prejudge an employee’s harassment complaint!
- You are required to conduct a prompt and impartial investigation of every complaint.
- Ask the employee to explain the details (who, what, when, where, witnesses, supporting e-mails, etc).
- Don’t tip off the accused about the complaint until you are ready to interview him or her.
- Investigate the complaint as confidentially as possible to respect employee privacy rights and to ensure that witnesses are not tipped off or pressured. Warn witnesses that talking about the investigation will lead to immediate disciplinary action, including termination.
- Explain to all witnesses that retaliation against the complainant or other persons interviewed is illegal and grounds for termination.
6.) Don’t ignore a complaint because it’s not written down or because you heard about it second hand.
- As soon as a manager learns about possible workplace harassment, the employer has a legal obligation to investigate and take appropriate remedial action. This is true even if the manager fails to report the harassment to you!
- Even if the alleged “victim” doesn’t want you to investigate the complaint, you are legally required to investigate the harassment claim to the extent possible.
7.) Talk to the complainant and the accused after you complete your investigation.
- Tell them the results of your investigation and what remedial and preventative action, if any, you will take.
- Always tell the complainant to contact you immediately if further problems occur.
- Check in with the complainant two weeks later to make sure that everything’s all right. Continue to monitor the situation as needed. Coworker retaliation is a frequent problem after investigations!
8.) DOCUMENT your investigation with legible and dated notes of your witness interviews, disciplinary action, and follow up meetings with the complainant.
- You must keep the investigation file for four years in a separate file—not in the personnel file of the complainant or the accused.
9.) What’s the appropriate remedy if the harasser is not your employee or contractor?
- Even if you can’t control the conduct of the client/customer or vendor/supplier, you have a duty to do something!
- Ask the harasser to stop the behavior. If they refuse (or if you learn that they continue to harass your employee) you must either terminate the relationship or–only with your employee’s consent—change the employee’s work location or duties to end or minimize contact.
- Don’t throw another lamb to the wolf! If you know the client is a lech for young women, do not assign another young woman to work with him. At least warn the next employee and stress the need to contact you immediately if the person’s conduct offends the employee.
10.) Providing a harassment-free workplace is good business!
- Defending unnecessary legal claims is costly, time consuming and bad for morale.
- Happy employees are more productive and loyal than employees who feel disrespected at work.
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If you are a home care employer and would like more information on this subject, please contact Lisa Spann Maslow at (415)380-9470 or firstname.lastname@example.org. Ms. Maslow is a California employment law attorney with more than 20 years experience counseling employers and investigating workplace harassment and discrimination.