Monday, February 25, 2019

You're never too small to have an HR department

43 percent of American employees work for companies with 50 or fewer employees. I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel.

Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees' buttocks and genitalia, graphic comments about sexual genitalia, invitations to engage in intercourse, and vulgar name calling, perpetrated by both managers and co-workers.

Part of the settlement included a cash payment of $700,000 to the alleged victims. The more interesting part of the Consent Decree requires the companies to create a Human Resources department (which they were lacking) staffed with professionals knowledgeable about handling and preventing discrimination, harassment, and retaliation.

Within sixty (60) days of the Effective Date, for at least the duration of the Decree, Defendants shall establish and maintain a Human Resources Department with enough staffing to carry out the terms of this Decree. The Human Resources staff shall be comprised of human resources professionals with demonstrated experience in the area of employment law, properly handing complaints of discrimination, harassment, and retaliation, and preventing and correcting such conduct.…

The Human Resources Department shall be easily accessible to Defendants’ employees in person, telephonically, or by email during normal business hours.

That newly created HR department is required to do all of the things you'd expect an HR department to do regarding its EEO responsibilities:

  • Establishing a record-keeping procedure that provides a centralized system of tracking discrimination, harassment, and retaliation complaints

  • Enforcing the employers' policies, procedures, and practices to foster a workplace free of unlawful discrimination, harassment, and retaliation, including taking measures to ensure that no retaliation is taken against any employee engaging in protected activity

  • Ensuring proper systems are in place to make certain that proper avenues exist for employees to complain about discrimination, harassment, or retaliation

  • Receiving and promptly investigating complaints of discrimination, harassment, and retaliation from any employee

  • Maintaining regular contact with employees who complain of discrimination, harassment, and retaliation

  • Ensuring appropriate corrective and protective measures are implemented in a timely manner after conducting a thorough harassment investigation

  • Overseeing the development and implementation of anti-harassment and anti-discrimination training and education

Your business is never too small for an HR department, and HR should never be an afterthought. In fact, it's one of the most important positions to fill in any business of any size. Your people are your most important asset. No matter your product, service, or mission, without employees to make it, provide it, or carry it out, you don't exist. Every company needs HR to recruit and hire, to create and monitor policies, to help ensure legal compliance, to implement benefits, and to strategize. Size may vary, but without any dedicated HR professionals, you are telling your employees they don't matter, which is never the right message to communicate. And, further, when it leads to harassment complaints being ignored, it could land you at the receiving end of an expensive lawsuit.