Tag Archives: SHRM blog

#MeToo: Marrying Compliance with Culture

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I am pleased to share my latest post to The SHRM Blog.

No one can credibly deny that sexual harassment is a persistent and pervasive problem.  It infects all industries; none is immune.

While this blog focuses on sexual harassment, we must create cultures that do not tolerate any kind of harassing behavior, such as harassment based on race, ethnicity, age or disability.  Harassment of any kind is the enemy of inclusion.

As employers, we must protect from harassing conduct not only our applicants and employees but also others who work with them. At the same time, we must ensure that there is due process for those who are accused of causing harm; after all, not every complaint is necessarily true.

In all cases, however:  every complaint must be taken seriously; every complainant must be treated with respect and dignity; and every investigation must be conducted promptly, thoroughly and impartially.  The process by which we investigate harassment claims plays a key role in determining whether employees–as complainants, witnesses or accused–trust the process.

If a company concludes that someone has engaged in sexual assault, unlawful harassment or harassing behavior, even if the harassing behavior is not “bad enough” to be unlawful, an employer must take prompt and proportionate corrective action.   Sometimes, but not always, that means termination.

Of course, no matter how strong our commitment to avoiding harassment may be and appropriate corrective action where unacceptable conduct has occurred, our commitment will not be realized, unless there is a culture that does not brook retaliation by anyone of any kind. If people are afraid of retribution, they won’t speak up, the process will fail and individuals will suffer in silence.

To ensure there is neither harassing nor retaliatory behavior, employers must focus on compliance.  This includes, by way of example only, a strong anti-harassment policy with a robust complaint procedure and strong assurances against retaliation.

We also must train our leaders not only to avoid bad behavior but also to call it out “in the moment” if they see or hear it.  To be silent is to be complicit, and the cultural message  resounds loudly.

Our compliance efforts should reflect and reinforce a culture where respect is expected and harassing and other bad behaviors are shunned, indeed condemned.  In a strong culture, you don’t get along by going along with harassing conduct. You get along by treating colleagues respectfully.

This is not to suggest compliance is irrelevant and culture is everything.  The key is to marry culture and compliance.

Your compliance efforts should improve your culture and your culture must inform your compliance.  Bottom line: our compliance efforts must become part of our cultural DNA.

95 Million Reasons to Conduct an I-9 Self Audit…Very Carefully

In The News, ,

I am pleased to share my latest post to The SHRM Blog.

In 2009, the Department of Homeland Security (“DHS”) began auditing the I-9 practices of Asplundh Tree Experts Co.  Last month, the Company pled guilty in Pennsylvania federal court to a charge of knowingly employing immigrants without authorization to work in the U.S.  The fine: a record $95 million.

In response, more and more employers are considering self-audits before DHS comes knocking at their doors.   While employers are well-advised to conduct an I-9 self-audit, there are legal minefields that need to be navigated or the self-audit may increase the employer’s potential liability.  Here are but some examples:

  • In the interest of being super compliant, some employers have considered having all employees execute new I-9s.  This is not super compliant, but rather super dangerous.  It raises serious discrimination risks under the Immigration Reform and Control Act (“IRCA”).
  • Other employers have questioned whether the Trump Administration’s Executive Order on DACA workers (Dreamers) requires that employers complete new I-9s for these DACA workers.  The answer is an unequivocal “NO.”
  • Employers cannot select for inspection employees they perceive to be high risk, such as those on visas, or those with “foreign-sounding” last names.  This type of targeted audit raises all but certain liability not only under ICRA but also the employment non-discrimination laws.
  • Inevitably, employers may find that some I-9s are missing.  In these cases, employers should complete new I-9s, dating them on the date in which they are completed.  NEVER back date.
  • In other cases, employers may find I-9s that are incomplete.  In these circumstances, the employer, using a different color ink, should have the document completed (either by the employer and/or the employee, depending on the omission) and, again, the employer should date the change on the date in which it is made.
  • In still other cases, there may be a mistake.  No employer ever should white out anything on the original I-9.  Rather, the employer, in a different color ink, should cross out the incorrect language, substitute the correct language and date same on the date the change is made.
  • The employer should prepare a summary of the scope of the audit, the manner in which it was conducted, and its findings.  But this is another blog for another day.

This blog should not be construed as legal advice.