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Employees are using company hotlines to report sexual harassment more than ever thanks to the #MeToo movement.
It follows, then, that how employers respond to complaints also is getting attention.
The fourth quarter of 2017 saw an 11.2 percent uptick in the rate of harassment and discrimination reports to employee hotlines compared with the first three quarters of the year, according to NAVEX Global, which operates hotlines for employers. Report author Carrie Penman, chief compliance officer and senior vice president of the Lake Oswego, Ore.-based firm, told Bloomberg Law April 20 that the rise followed the harassment scandal surrounding movie producer Harvey Weinstein. In terms of hotline use, she said, “We believe that’s really just the tip of the iceberg.”
The overall rate of hotline reports on all human resources-related issues, including harassment, remained roughly steady for 2017 as a whole compared to previous years, at 72 percent, she said. The remaining 28 percent of hotline complaints concern financial and other misdeeds.
Attorneys also are noting increased interest in employer hotlines due to the new prominence of the harassment issue. Jonathan A. Segal told Bloomberg Law April 19 that he’s getting a lot of calls from employers that didn’t have hotlines before but now want to put one in. Segal is a partner in management-side law firm Duane Morris LLP in Philadelphia.
Hotline complaints may go to either an internal department or a third-party operator, Helene Wasserman told Bloomberg Law April 19. In either case, she said, complaints should go to the board, if there is one, or to the entire leadership, but never just to a single individual—who could be the target of the complaint. Wasserman is a shareholder and co-chair of the Litigation and Trials Practice Group at management-side law firm Littler Mendelson’s Los Angeles office.
The real question is whether hotlines can stop sexual harassment and protect employees and employers alike.
“They’re increasing visibility but I don’t think they are improving effectiveness,” Dallas-based consultant Holly Caplan told Bloomberg Law April 20. “Large companies like State Farm and AT&T have them.”
Caplan said employees frequently get an automated response on the line and no follow-up when they call with a complaint. Those who complain via email often receive email responses that the complaint was filed and investigated, but no further action was taken, she said.
Many employers mention their hotlines only in the employee handbook and during annual harassment training, Caplan said, leaving the impression that use of the hotline isn’t encouraged.
Legally speaking, “a hotline is but one more factor that helps to show the employer has made strong efforts to prevent and address harassment,” Segal said. He added that if the employer is sued, the fact that it has a hotline can help it establish a Faragher/Ellerth affirmative defense, which requires an employer to show that it had a clear, well-publicized anti-harassment policy and internal complaint procedures, but the employee unreasonably failed to take advantage of these remedies.
“Hotlines can act as a deterrent” to sexual harassment, Wasserman said. “They also operate as a mechanism for the company to appropriately respond. As for legal protections, it is another line of defense, rather than ‘true legal protection.’ It shows how proactive the company is in having yet another mechanism that employees are aware of that they can use if they believe that either they or a fellow employee are being subjected to inappropriate conduct.”
Anonymous reports can leave employers in a difficult position if the worker doesn’t provide enough information for an investigation, management-side attorneys agree. NAVEX’s figures show a long-term slide in the proportion of anonymous reports and an uptick in employer investigations of them. “A lower rate of anonymous reporting is an indicator of trust in the system and the people who manage it,” Penman wrote in the report on the figures. Among other factors driving this change, she wrote: “With the ongoing legislation and focus on whistle-blower protections, reporters may sense more protection from retaliation and therefore feel safer disclosing their identity. In a more stable economy, employees may feel more secure and more willing to identify themselves.”
There can be an advantage to hotlines that allow employees to report anonymously, Segal said. “The benefit is people who don’t want to talk to someone live can make a report, but the risk is you’ll get notice of a potential problem but no way to pinpoint it.”
Anonymity can be distinguished from confidentiality, Wasserman said. “There’s a fine line, but confidentiality can be maintained on a need-to-know basis” to prevent the spread of rumors, she said.
If an anonymous caller leaves a message without enough crucial information, Segal said, the employer can issue a company-wide notice reminding employees that they have the right to make anonymous reports, but requesting that whoever just did so should get in touch again with sufficient additional facts for follow-up.
Follow-up is the key issue. Instead of leaving employees in the dark, Caplan said, “someone from HR should call right away to show they care” and acknowledge the employee’s feelings.
It’s important for employees making a complaint to realize that you “take them seriously,” Wasserman said.
There are several other considerations for a hotline, Susan Bassford Wilson, e-Law Practice Group chair for management-side Constangy, Brooks, Smith & Prophete LLP in St. Louis, told Bloomberg Law April 19:
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