Preventing lawsuits concerning employment practices.
It pays to learn about the new risks associated with managing employee relationships and the problems that develop out of them. Specifically, the hottest issues involve sexual harassment, wrongful termination, and unlawful discrimination.
Since the early 1960s, federal and state governments have systematically sponsored and enacted laws restricting the common law right of employers to hire and fire employees at will.
These laws include various equal employment opportunities, equal pay, civil rights laws, and executive orders that require employers to behave in certain ways. Examples of the most recent laws effecting all employers are the Family and Medical Leave Act and the Americans With Disabilities Act.
Our purpose here is to look at how these laws present new and different risks to the camp director and to offer some suggestions for managing them. Even though most camp employees are hired under short term contracts, we think it is critical for directors to develop an awareness of these risks and do something about them.
Let us look briefly at the risk of liability for sexual harassment and wrongful termination at camp.
The Equal Employment Opportunity Commission defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, slurs, jokes and other verbal or physical conduct of a sexual nature when:
1. submission to such conduct is made
either explicitly or implicitly a term
or condition of an individual's
2. submission to or rejection of such
conduct by an individual is used as
the basis for employment decisions
affecting such individual; or
3. such conduct has the purpose or
effect of unreasonably interfering
with individuals' work performance,
or creates an intimidating, hostile or
offensive working environment." The camp owner is responsible for the environment on the job and for acts of sexual harassment in the work place, unless the director/owner can show immediate action was taken to correct a situation involving sexual harassment.
Sexual harassment allegations cannot be ignored. The issue calls for both prevention and a proactive strategy.
Every camp should have a statement in their employee/counselor handbook that outlines the camp's policy against sexual harassment. It should be communicated to everyone, but especially to head counselors and other supervisory staff. The statement can be a very simple one, such as, "It is our policy to promote a work atmosphere free of harassment and/or sexual harassment in any form at all levels of employment." Further statements should emphasize that harassing behavior will not be tolerated and that anyone who feels they've been subjected to this treatment should notify the director immediately.
Markel Rhulen Underwriters has had research done by Jackson, Lewis, Schnitzler & Krupman, a labor law firm practicing nationally on this issue. Here are some guidelines they offer to employers on what to do when you are put on notice of a violation:
The following steps should be taken when a supervisor becomes aware of a violation: a. Obtain information about the alleged
harassment from the accuser. Ask
for "documenting facts" about the
incident, including what was said
and done, and what the accuser
regards as "inappropriate behavior." b. Contact a responsible official (if you're
it, no further action is needed). c. Investigations should be confidential. d. All purported witnesses or those who
may have knowledge should be
interviewed. e. The alleged harasser should not be
identified to third-party witnesses. f. The investigation process should be
documented as it proceeds. g. Documentation of the investigation
process should be segregated from
both employees' personnel files,
unless it is concluded that
harassment occurred and discipline
is imposed. h. The accuser need not be informed of
the nature of the discipline imposed
on the accused, except he/she can be
informed that the matter has been
investigated, appropriate action has
been taken and the employer expects
that it will not occur again.
Appropriate corrective action taken against the harasser can include a verbal caution, written warning, suspension without pay, or discharge.
Likewise, appropriate steps should be taken to protect the harasser, including reassurances that no retaliation will be permitted.
Jackson, Lewis, Schnitzler & Krupman point out that "The courts generally hold that an employer should be relieved of liability under Title VII of the Civil Rights Act for Sexual Harassment, where the employer can show an official policy against sexual harassment, and where the harassment by a co-worker took place without the employer's actual or constructive knowledge, or that the consequences were modified when discovered. When a supervisor engages in sexual harassment, the employer always is liable."
Wrongful discharge claims involve other risks.
Directors should make effective use of performance appraisals. Even though the season is short, some type of performance appraisal should be given during camp. At the very least, a performance evaluation should be done when camp is over to use as documentation if you chose not to rehire the staff person next year, or as documentation of a particularly capable person. In my opinion, the key to preventing successful wrongful termination suits and complaints against your camp is documentation and an equitable handling of all termination matters.
To accomplish this goal, the camp director must keep excellent records. This includes developing a complete application, maintaining interview notes, reference checks, certificates of competency, notes on performance issues and other relevant matters in a personnel file.
Ultimately, development of a termination checklist with the help of legal counsel may go a long way toward keeping you in compliance, out of trouble and acting consistently throughout your employment relationships.
When we think about liability and risk management, we tend to think in terms of physical injuries to campers. However, the risk of financial loss is very real where faulty employment practices are involved, from fines awarded for back pay, to punitive damages, to payments for emotional trauma arising out of faulty employment practices. These risks deserve consideration and should be part of your next risk management plan revision.
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|Date:||Nov 1, 1993|
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