Scott F. Cooper and Brooke T. Iley
The #MeToo movement was initially launched over 10 years ago by social activist Tarana Burke. On October 15, 2017, in response to the growing Harvey Weinstein revelations, actress Alyssa Milano sent out a tweet asking “If you’ve been sexually assaulted write `me too’ as a reply to this tweet.” #MeToo has now trended in at least 85 countries and the “Silence Breakers” were named 2017 Time Magazine’s Persons of the Year. Various titans of industry have fallen—including Harvey Weinstein, Matt Lauer, Charlie Rose, Kevin Spacey, Louis C.K., James Toback, Garrison Keillor, Senator Al Franken, Representative John Conyers—and the list continues to grow.
Now is the time for employers to take stock of their anti-harassment training and programs, as well as to understand what should happen if, despite all their efforts, allegations of harassment arise either internally or externally via a filed complaint with the EEOC, lawsuit, or even simply on social media.
Below is a list of action items for employers to consider as we enter 2018. We can’t emphasize enough that preventative measures now (including designing public relations strategies) can pay off if a crisis hits. Blank Rome’s full-service national labor and employment practice team is poised to provide guidance and assistance to employers desiring to evaluate and implement any of the following action items:
- Clearly Communicate Your Corporate Culture—No One Is above the Law or Your Rules
- Communicate that “Zero Tolerance Means Zero Tolerance”
- No complaint is too small—all will be taken seriously
- Do not look the other way based on the status or role of the accused
- Consider additional training and communication, or training refreshers, for all staff
- Promote consistent treatment
- Limit alcoholic beverages at social events
- Consider whether you need an “absolutely no dating at work” policy
- Review Your Policies and Complaint Procedures
- Do your policies apply to your current business model?
- Is your complaint procedure up-to-date and accessible?
- Do your reporting channels really work?
- Review, update (as necessary), and remind all employees about social media policies
- Do Not Use Any Non-Disclosure Agreements Without Speaking to Legal Counsel
- The trend (including legislation introduced in Congress) is to prevent the use of NDAs or other settlement documents to chill the reporting of sexual harassment before or after the fact
- Certain states (NY and NJ) are considering void confidentiality clauses in employment-related contracts that require employees to conceal allegations of harassment or discrimination
- California may soon entirely void confidentiality clauses in settlement agreements that require non-disclosure of statements about sexual harassment or assault
- Protect the Larger Organization
- Keep C-Suite and board of directors in the know—considering the severity of the allegations and/or seniority of the staff members involved
- Minimize the potential for conflict of interests and other potential ethical issues by retaining separate legal counsel for those accused of harassment
- There are no longer “minimal claims,” but strike an appropriate balance for your company between dealing seriously with the allegations and not overreacting in a way that would be detrimental to the company as a whole
- Develop in advance an effective public relations strategy—do not wait until a crisis hits to come up with a plan
- Review Your Insurance Policies
- Is there sufficient coverage for the entity? For executive(s) and/or employee(s)?
- What are the limits?
- Are third parties (consultants, for example) covered by your policies? Should they be?
- Prepare for the Investigation
- Create investigatory protocols with help from legal counsel
- Sophisticated and well-trained interviewers are essential, as investigations can be complicated and truth may be in the eyes of the beholder
- Consider and protect all privileges from the very beginning (attorney-client and attorney work product protections)—including if you hire outside third-party investigators or other consultants—by involving legal counsel from the very beginning to help guide and ensure the protection of all applicable privileges
- Check personnel and communication-related documents—don’t just trust verbal statements (but, remember, complaints do not have, and should not be required, to be in writing to be valid and taken seriously)
- Be Prepared for Potential Criminal Issues
- Conduct giving rise to a sexual harassment claim may also trigger criminal investigations and subsequent charges
- Companies should consult outside legal counsel as to whether any misconduct should be reported to prosecutors and, if so, the manner in which to do so
- If an internal investigation did take place, determine whether to waive privilege to aid in the criminal investigation, including the release of the investigation report to the prosecution
- Remember, every employee is a potential witness and could be called to testify before a grand jury
- Consider Fifth Amendment implications when forcing employees to discuss potential criminal conduct during and internal investigation
- Be careful that your internal investigation does not impede or obstruct a criminal investigation
Thanks to those readers on this blog who attended our recent webinar. If anyone would like to receive invitations for future programs, please visit www.blankrome.com/subscribe to sign up for our Employment, Benefits & Labor mailing list. We are also happy to assist any readers in relation to any of the matters noted above, as our Labor and Employment team is here to help you.