Presented at the 2018 Parsons Behle & Latimer Idaho Employment Seminar - Oct. 9, 2018 - Boise, Idaho

1. Parsons Behle & Latimer Idaho Employment Law Seminar
POST-INVESTIGATION: DISCIPLINE,
RETRAINING, COACHING
AND REMEDIES
Christina Jepson
801.536.6820
cjepson@parsonsbehle.com
parsonsbehle.com
TUESDAY, OCTOBER 9, 2018 | BOISE CENTRE EAST

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 Following the investigation, the investigator should
– Draft an investigation report
– Reach a conclusion
– But then what?
 Depends on findings
– Allegations are found to be proven
– Allegations are found to be disproven
– Cannot reach definitive conclusion about the allegations
Post-Investigation

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 If the investigator finds that there was not harassment or a company violation
– Follow up with accuser and the accused to let them know the allegations have not been
proven
– Remind the employees in writing that they must comply with employer policies regarding
discrimination, harassment and retaliation
– Explain retaliation
– Take proactive measures to avoid future problems
• Option to switch shifts, work locations, or supervisor
• More training
– Accuser should not be disciplined unless there is finding that he/she made the
allegations in bad faith
No Violation

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 If the investigator finds that the allegations are not proven nor disproven (they are
inconclusive – the classic he said/she said with no corroboration or other means for making a
determination)
– Follow up with accuser and the accused to let them know the investigation was inconclusive
– Remind the employees in writing that they must comply with employer policies regarding
discrimination, harassment and retaliation
– Explain retaliation
– Take proactive measures to avoid future problems
• Ongoing monitoring
• Option to switch shifts, work locations, or supervisor
• More training
– Accuser should not be disciplined unless there is finding that he/she made the allegations
in bad faith
Inconclusive

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 If the investigator finds that the accused engaged in sexual
harassment and/or violated the Company policy, the Company
should impose discipline
– This is true even if the conduct is not technically “sexual harassment”
under the law
– The employee may have told one inappropriate joke which is no
pervasive, but still may violate policy
– It is always better to find that the employee violated the policy than to find
that the employee “engaged in sexual harassment” – that is a legal
conclusion
Violation

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 If there is a finding that an employee violated the sexual
harassment policy or engaged in inappropriate behavior, the
employer will have to decide on a disciplinary action that will
– Effectively end the harassment;
– Make the accuser feel safe; and
– Provide a reasonable response given the nature of the conduct, severity,
and prior violations
 Document the employer responses
Violation

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 Follow up with accuser
– Inform him/her that the allegations have been investigated
– A conclusion has been reached and what it is
– What action was taken
– Confirm that the complaint was welcome and thank the person
for coming forward
– Explain retaliation and that any retaliation should be reported
immediately – get in writing
Violation

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 Wide range of possibilities
– Oral warning (documented)
– Written warning
– Last chance warnings
– Counseling/Coaching
– Training
– Impact on bonus
– Pay freeze (no raise)
– Suspension
– Demotion
– Termination
Discipline

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 So what is appropriate?
– What can you do – are you in an at will state?
– What can you do – do you have contractual or union
obligations?
– What can you do – what are your policies?
– Consistency – punishment should be consistent in the
Company
– Proportional – ”punishment should fit the crime”
Discipline

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 First, determine if you are dealing with at-will
employment
– In most states (including Utah) employment is at-will. This
means that an employer can terminate an employee for any
reason (except an illegal reason), at any time, with or without
notice.
– An employer has a broad range of disciplinary choices.
– In a non at-will jurisdiction, you must follow the law.
At Will Employment

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 First, determine if you are dealing with at-will
employment
– Are you in an at will state?
– Do you have contractual obligations? A contract may change
the at will status of an employee.
– Do you have union obligations or processes? This may change
the at will status of an employee.
At Will Employment

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 First, determine if you are dealing with at-will
employment
– An employee may still bring a wrongful termination claim even
in an at will jurisdiction.
– That is why you always need to make sure your investigation
process and decision are solid and documented.
At Will Employment

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 Second, what Is your disciplinary process?
– Before taking action, review your employee discipline policy.
– Make sure before you discipline an employee that you have
followed your policy carefully unless there is a good reason to
deviate.
– Which, of course, raises the question are your policies “good”
policies?
Process

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 Third, what have you done historically?
– Before taking action, review your history of employee discipline
for similar behavior
– Make sure you are acting consistently and can justify your
actions
– Otherwise, you may be facing a discrimination claim from the
alleged harasser
Consistency

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 Very important to be consistent to avoid discrimination
claims
– Which means someone has to keep a record
– The record needs to be institutionalized and passed on when
HR managers change
– Is it ever appropriate to throw consistency out the window?
Consistency

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 Yes
– Let’s take the Harvey Weinstein case and consider consistency
– When the allegations came up what did the company likely
discover about how it had consistency dealt with such
allegations/findings in the past?
– Sometimes you have to break with consistency
– When you set a new precedent make it clear to the company
that you are doing so – announce that there will be changes
– Big lesson of the MeToo Movement
Consistency

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 So what is appropriate?
– Consistency is very important in employment decisions to avoid
discrimination claims
– You cannot discipline a man differently than a woman
– You cannot discipline a Hispanic person differently than a
Caucasian person
– You cannot discipline the President of the company differently
than the janitor (well, you can, but it is risky)
Consistency

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 If the company does not have a history of discipline, the company
should make sure it is setting a precedent going forward that can
be justified by the actions not just of this particular employee in
this case
 The precedent will have to be applied if the behavior is also
engaged in by the most important and well-liked employee in the
company
 Evenly applied to harassers of any sex, gender or gender identity
 Even though employee discipline should be private, everyone will
talk and it will get around
Consistency

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 Fourth, is it proportional?
– Does the punishment fit the crime
– Severity of conduct
– Frequency of conduct – repeat offender?
– Strength of proof
– Cooperation
Proportionality

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 The “zero tolerance” problem
– If you adopt a zero tolerance policy you may be setting yourself
up for problems
– If zero tolerance means some discipline will be implemented
that is fine
– If your baseline is termination (“zero tolerance”), you set
yourself up for a discrimination when you do not fire someone
– You also set the stage of the revenge complaint
– You set an example that can be damaging to morale
Proportionality

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 What is proportional?
– Employees are humans
– Humans have poor judgment on occasion
– Sometimes an employee does not know when they have
crossed the line from occasionally annoying behavior to sexual
harassment until someone brings it to their attention
– Like any “crime” all the circumstances must be considered
Proportionality

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 Getting Something More For Your Disciplinary Action
– Discipline affects all employees, not just the employee being
disciplined.
– Sometimes a well-timed, well issued discipline can straighten
out a problem in the workplace
– The discipline is sending a message that this type of behavior
will be handled in a certain way
– You need to be consistent in your application of discipline.
Sending a Message

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 So in addition to written warnings, employers can
• Require sexual harassment training courses. Continued
employment can be conditioned on the prompt attendance of a
training session. Other special training.
• Formal apologies. Often goes a long way to clear the air. With a
trained HR mediator.
• Reassign the employee to another department or work space, if
possible.
• Suspend the employee without pay.
Creative Responses

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 Warning: Keep It Private
– The employer and HR staff have to keep disciplinary matters
private and confidential. The employer has to be above the
situation, but should be cognizant of employee behavior.
– Except – inform the accuser and accused of results
Privacy

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 But when do you need to communicate?
– The workplace knows
– The world knows
– Not commenting would cause bigger problems
– Communicate enough to say “we have handled the problem”
without including all the details
Communication

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 Key Take Aways
– Follow any state rules (in non at-will states), contractual
requirements, or union requirements
– Follow your own disciplinary policy to the letter and document,
document, document, document
– Be consistent. Remember, disciplinary action must be
justifiable, evenly applied to all similar situations, and
responsive to the severity of the issue.
Take Aways

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 Key Take Aways
– Specifically advise the accused and accuser regarding no
retaliation and have them sign a document
– Follow up periodically to make sure there are not problems.

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 Louise feels like she has been sexually harassed. Her
boss, Jake, is always telling her she looks nice and stares
at her chest. He also talks to his friends about sex loudly
enough that Louise can hear. She complains to HR and
HR investigates. HR finds that he has engaged in this
behavior. Jake admits the behavior except staring at her
chest. He said he had no idea Louise felt uncomfortable.
Jake seems genuinely sorry and says he will change his
ways. What should the company do?
Scenarios

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 Stacey complains that her supervisor Lamar has
harassed her. She says that Lamar yell at her, makes
unreasonable demands, and is overly critical. The
company investigates and finds no sexual harassment.
The behavior is not sexual. Also the behavior is not just
directed at Stacey and not just directed to women. In fact,
the Company finds that Lamar is a big jerk to everyone
who works under him. But Lamar gets good results. What
should the company do?
Scenarios

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 Juan complains that James sexually assaulted him the
work parking lot as they were leaving their shift. Juan
also calls the police. The police do not find enough
evidence to go forward with a charge. The company does
its own investigation and finds credible evidence of an
assault. What should the company do?
Scenarios

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 Jania complains that she heard Brian tell a dirty joke in
the break room. He did not tell it to her but she overheard
it. It was about sex and it made her feel uncomfortable.
She reported it to HR and HR investigated. HR found that
Brian did tell the dirty joke (several people heard it) but
Brian denies it. Brian has no other history of problems.
What should the company do?
Scenarios

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Tom complains that his boss, Edward, uses
demeaning language when he doesn’t get a
sale. He calls him “girlie boy” and tells him to
wear a dress. The investigation concludes that
that Edward did use this type of language
repeatedly. Edward is not sexually interested in
Tom and seems to be genuinely unaware that
this constitutes sexual harassment. What should
the company do?
Scenarios
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 Christina M. Jepson
801.536.6820
cjepson@parsonsbehle.com
Thank You