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Small to mid-sized law firms have some distinct disadvantages when it comes to complying with employment laws and managing the risks associated with potential discrimination/hostile environment claims. An informal atmosphere, which makes the firm a good place to work, may also foster inappropriate conduct or comments that can lead to complaints of harassment and discrimination (sexual and otherwise). One key factor is that the day-to-day supervision and management of smaller firms tends to be flat. Even in firms where there is an office manager, the functional first line supervisor of one or more of the support staff is usually an attorney. Though there may be employee handbooks or procedures in place, law firms tend to handle employee issues in a less structured way, and, believe it or not, documentation regarding discipline/counseling is often lacking. This may be compounded because attorneys in the same office may handle situations with “their staff” differently — leading to at least a perceived inequity. These facts, coupled with a disparity in education, and at least a perceived difference in power within the firm, can make a firm the perfect target for a discrimination or hostile environment claim. But the good news is that a small firm need not function like a 500-attorney firm in order to greatly reduce the risk of such a claim. There are some solid, time-proven tips that can be easily adopted to significantly reduce the risk of exposure. MAKE A PLAN If the first time your firm is thinking about harassment/discrimination claims is after a complaint has been made, it will already be at a disadvantage. Proactive employment practice and litigation avoidance plans (PEPLAs) not only tend to reduce the number of complaints, but also make responding to complaints and defending against lawsuits easier. The key to an effective PEPLA is to create a comprehensive policy that fits with the culture of the firm and to follow-up with consistent training and enforcement. In general the following steps should be taken. PERFORM A SELF-ANALYSIS Review everything from hiring and disciplinary procedures, to employee classification and payroll procedures. Review all written materials related to policies and procedures, such as employment applications, computer-use policies, offer letters, employee postings and pension plans, i.e., all material related to terms and conditions of employment. “Unwritten rules” and procedures should also be reviewed. The goal is to determine how the firm operates “in real life.” Are policies consistent with the law and are they being followed? Even more importantly, are they being followed consistently? A comprehensive audit will reveal any systemic issues and identify potential liabilities. CREATE POLICIES Although there are many legal requirements, law firms do have to make some choices. Culture and past practices must be considered. For example, employers can choose whether to require employees to exhaust paid leave as part of their unpaid family leave entitlements. Similarly, there are choices that need to be made in the formation and administration of harassment policies. Will the firm’s culture support a zero tolerance type policy that goes beyond legal requirements, or is a more tailored policy required? There is no one best response so firms need to put serious thought into what policies will best work for their employees. PROVIDE TRAINING Even the most well-drafted policies will not protect against litigation unless they are followed. All employees should receive an initial training and refresher sessions on harassment. Other training, such as supervisory and diversity training, may also be warranted. It is especially important to remember that complaints may be made to anyone in authority (not only the persons designated by the complaint procedure). As a result, all attorney/directors and other managers must receive training to realize that when they receive a complaint they are in effect conducting the first stage of the investigation. As a result, their conduct is crucial and can set the tone for what is to come. In responding to complaints, everyone should be trained to consider the following: 1. Be supportive but neutral. Assure the complaining employee that the firm takes the complaint seriously and will take prompt action. Don’t be overly sympathetic or credit the allegations. 2. Explain the process. Advise the employee that there must be an investigation, even if he or she does not want one. Explain that information will be kept confidential to the extent possible, but will be disclosed to those with a need to know, including the accused. Instruct the employee that he or she should not discuss the issue with anyone other than those performing the investigation. 3. Get the facts. Get as much detail as possible during the initial conversation. Questions should be open-ended and not suggest answers. Start with who, what, where, when, etc. Get the names of anyone the employee believes may have information. Timing is also important. If there was a delay between the complaint and the alleged conduct, find out why. Ask the employee how he or she wants the situation resolved, but don’t make promises. Knowing the employee’s expectations can help identify options and the appropriate actions to take. 4. Assure no retaliation. Assure the employee that the firm will not tolerate retaliation against anyone making a complaint or participating in an investigation. Encourage him or her to report any further incidents or retaliation immediately. If your firm was already thinking of disciplining the complaining employee, consider whether it should still issue the discipline. Among the considerations are the basis for the discipline, whether the decision is documented, and the effect of postponement. Your firm may want to consider an independent investigator for the formal investigation. This is particularly helpful where there is a perception of bias or the allegations are particularly heinous. The investigator should consider other sources of information, e.g., personnel files, records of prior complaints, attendance or phone records and e-mail. All aspects of the investigation should be well-documented. Findings regarding credibility are crucial and should not be overlooked. The final report should avoid the legal conclusion of whether “harassment” occurred. However, if inappropriate behavior or a violation of policy has occurred, it should be noted. TAKE CORRECTIVE ACTION Your firm has an obligation to stop discrimination/harassment. It need not choose the remedy the employee requests. Nevertheless, whatever action is taken should be based on the particular circumstances, including the severity, frequency, and pervasiveness of the conduct, prior complaints and the quality of evidence presented. Most importantly, do not let inconclusive results result in inaction. It is often impossible to conclusively determine what happened. Although this may effectively preclude discipline, follow-up training, counseling, and re-publication of policies should still be considered as remedial action. PLAN FOR THE WORST Even with proper planning there is always a risk of litigation. Potential litigation strategies and options should be considered in advance. As a result, your firm should consider such things as employment practices insurance and the possibility of employment agreements that require arbitration. Because there is a significant body of case law regarding arbitration agreements, your firm should consult counsel before implementing them. Possible settlement strategies should also be considered. Despite confidentiality clauses, word of an incident tends to spread fast. Thus, although early settlements are sometimes warranted, a history of settling claims may result in increased claims. Conversely, while litigating every claim can be a deterrent, it may break (or dent) the bank. Generally, your firm should apply a balanced approach and pick its battles. Dominick Bratti is a principal of Grotta, Glassman & Hoffman in Roseland, N.J. Contact him at [email protected] Related Story: Harassment Complaint Procedure: Who Should Hear Grievances?

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