Article contributed by Mitchell F. Borger, Ellenoff Grossman & Schole LLP
In the last few years the #METOO Movement has changed our society and workplace through a consciousness raising of media articles, discussions among friends, family and the passage of new governmental legislation.
Just last year, my partner, Amanda M. Fugazy, wrote an article for Total Food Service explaining the basics and setting out the deadlines for New York employers to meet the new mandate of a written sexual harassment prevention policy and annual interactive training.
To remind you, on October 9, 2018, New York State employers were required to either adopt the State’s model sexual harassment prevention policy or have a policy that exceeded that minimum standard. In addition, effective April 1, 2019, employers were further obligated to provide their employees with annual interactive training, comprised of either the State’s model training or a comparable training that met or exceeded the State’s standards. If you operate a restaurant in New York, this should not come as a surprise for you. You probably hope that the policy and training will now keep your workplace free from harassment problems, sexual or otherwise, but what happens if it doesn’t?
What follows is an overview of what actions you should take to appropriately respond to workplace claims of harassment.
First, insure that there is a process for reporting a harassment complaint to any manager.
Reporting of a complaint to any manager is sufficient to place the company on formal legal notice.
Second, it is then critical for the individual who receives the complaint to promptly transmit the complaint in a confidential manner to the appropriate person who will decide on how it will be investigated.
This may be the senior HR executive, the general manger or owner. What does “confidentiality” mean for these purposes? The information about the complaint and how it will be handled should only be shared with individuals on a “need to know” business basis.
Third, you must decide who will investigate the complaint.
If possible, the investigator should be a HR or other executive, who has been trained in conducting investigations. Most employment attorneys can also serve as investigators. Other considerations include whether the interviews can be done in person, by phone or by Skype.
Fourth, the investigator must strive to conduct a prompt, thorough and confidential investigation.
The investigator should interview all relevant witnesses and review all relevant documents, including company policies and emails between the parties or witnesses. At times, the investigator needs to think outside the box. For instance, are there cameras in the facility and would a review of the video from certain dates be germane to the issues? Are there text messages or cellphone video of any of the incidents? If so, those all need to be reviewed. All interviews should be documented with a detailed summary of what the witness stated. Periodically during the investigation, it is advisable for the investigator to provide the complainant with an update on how the investigation is proceeding and when completion is expected.
Fifth, the investigator should reach a conclusion as to whether the harassment allegations are corroborated.
The investigator should be able to make a credibility assessment for each witness as to whether the information they provide is relevant, accurate and credible. Even in cases devoid of corroboration, the investigator can consider whether a witness has a motive to lie or be less than forthcoming. The investigator should draft a conclusory report, which includes a summary of the allegations, witnesses interviewed with a credibility assessment, the information reviewed and a conclusion reached.
If the investigator concluded that harassment or a violation of company policy occurred, there needs to be a decision on discipline and/or termination.
I generally recommend that a person other than the investigator be the decision maker for the ultimate outcome. The decision needs to then be communicated to the complainant and the alleged harasser. If the allegations are partly or fully corroborated, the complainant should be told that the harasser will face discipline, but there is no requirement to share the specific details. Examples of discipline can include suspension, placement on final warning and/or retraining.
All of the above must be accomplished while protecting the complainant from additional harassment and retaliation, separate from the alleged harassment. If the complainant and the alleged harasser work in close proximity, consider separating them for, at least, the pendency of the workplace investigation. One of the final steps is to remind all parties and witnesses that retaliation is prohibited by company policy, is illegal and will not be condoned.
Finally, it is incumbent upon the restaurateur to ensure that all of these steps are documented and placed in a file that is kept separate and apart from the complainant’s personnel file.
Have you wondered what happens if you don’t respond to a complaint appropriately? Recognizing that most of this magazine’s readership will be found in New York State, I looked for examples in other states and found two examples from the Chicago and Lexington, Kentucky areas. In 2018, a chain of nine Rosebud Restaurants in Chicago agreed to pay $160,000 to the US Equal Employment Opportunity Commission (“EEOC”) to settle a lawsuit where the EEOC found that the restaurant did not take adequate steps to address the employees’ complaints, specifically where two women were subjected to sexual harassment and one was fired after complaining. In addition to the monetary award, the restaurant chain was required to provide annual training and compliance reports to the EEOC.
If that wasn’t bad enough, in 2016 Mint Julep Restaurant Operations LLC, in Lexington, Kentucky agreed to settle a lawsuit with the EEOC for $450,000. In that case, the EEOC found that the restaurant managers requested sexual favors, subjected female employees to unwelcome touching and did not respond to complaints “in a prompt and appropriate manner.” On top of that, these two restaurant chains undoubtedly incurred tens of thousands of dollars in attorneys’ fees and, worst of all, a huge hit to their brand names and reputations.
While there are many other examples, these two restaurant cases provide you with reason enough to take harassment complaints seriously, react promptly and respond with an appropriate investigation and follow-up.
Mitchell F. Borger, a member of the Firm, has more than twenty-seven years of experience practicing Employment Law. Mr. Borger advises clients about their legal rights and responsibilities, drafts employment agreements, severance and release documents, handbooks, and policies, is well versed in alternative dispute resolution (with an emphasis on mediation and arbitration programs), and performs employment-related corporate due diligence. Mr. Borger is the current Chair of the New York State Bar Association’s (“NYSBA”) Corporate Counsel Section, served as its 2005 Chair and is a twenty year member of its Executive Committee. He can be reached by phone at
212-370-1300 or by email at firstname.lastname@example.org