Nonprofit Report - November 2017
Association Liability for Harassment at Meetings
By: Jennifer S. Jackman
Originally published in Association TRENDS magazine.
Consider this: An association employee attends the annual membership meeting. There is alcohol. A member becomes flirtatious with the employee and before anyone steps in, gropes her. Your organization cannot be held liable for conduct of a member, over whom you have no control, right?
What about this? A director makes comments at board meetings regarding his homophobic views. You have a staff member who attends these meetings who is gay. You can’t be liable for the board member’s conduct, right?
Employers have a duty to protect employees from discrimination and harassment – even by third parties not employed by the association, such as directors, officers and other volunteers. Even though you cannot “control” these individuals, there are steps you can take to protect your employees from harassment and your association from liability.
Step 1. Make sure your anti-harassment policy covers harassment and discrimination by third parties. This includes members, officers, board members, volunteers and even vendors.
Step 2. Educate your employees. Conduct annual discrimination and harassment training and make sure your employees know what to do in cases of third-party harassment. Training should include practical advice as to conduct during meetings and conferences, how to extricate themselves from uncomfortable situations and who to tell if they feel uncomfortable or have been harassed.
Step 3. Adopt a Board Code of Conduct. If you already have one, make sure it includes a solid anti-harassment policy. It’s a good idea for each board member to sign it.
Step 4. Conduct board training. Just like organizations should conduct management training, you should also train your board of directors. Ensure directors understand that the organization can have liability for their actions and the actions of members. Implement a reporting policy for incidents involving board members and members.
Step 5. Adopt a Member Code of Conduct. This can be posted on the website and in membership materials. The policy should include what conduct is prohibited and the consequences of engaging in such conduct.
Step 6. Monitor conduct. When at member meetings and board functions attended by staff, particularly when alcohol is involved, monitor conduct. If a member is getting too cozy with an employee, intervene early, before something happens.
Step 7. Investigate. If an employee brings a complaint, investigate it promptly.
Step 8. Protect the employee. If the conduct involved is serious, take immediate action and investigate later. If appropriate, contact the police and/or security.
Step 9. Take action. If the investigation results in a finding of misconduct, take appropriate action, regardless of whom the offender is.
Step 10. Document the complaint, findings and action taken and report the findings to the employee.
While associations cannot control third party conduct, if preventative measures are taken, employees can be protected from third-party harassment and your association can be shielded from liability.
Managing & Insuring Your Biggest Risks
By: Jeffrey P. Altman
Originally published in Association TRENDS magazine.
Most people are surprised to learn that one of the biggest risks for claims against associations involve employment practices. These range from the initial hiring decision to the final termination of employment, and include everything in between. These risks need to be identified and managed. Insurance coverage also is needed to protect against possible claims.
Identifying the Risks
There are textbooks and manuals describing the complex array of federal, state and local laws that cover the workplace as well as how to manage your employment risks. Some of the key exposure areas include:
- The hiring process (including what information can be requested, investigated or considered)
- Immigration status issues
- Discrimination and harassment in the workplace
- Retaliation (one of the, if not the, largest number of claims before the EEOC)
- Improper exempt vs non-exempt classification and failure to pay overtime (FSLA Claims)
- Improper independent contractor vs employee classification
- Dealing with the threats and impact of workplace violence
- HIPPA and privacy violations
- The unequal application of personnel policies and handbook provisions (or lack thereof)
- Terminating employment.
Risk Management/Claims Avoidance
Perhaps the most important thing you can do is to provide management training and conduct antiharassment employee training on an annual basis. You also should consider an audit of your record keeping and classification of employees to comply with complex and changing rules.
Another key area is to document your employee files and carefully consider the risk and liability implications for various employment situations. For terminations, in particular, you should make sure the file is complete or postpone any negative action until you are in the best position to terminate. Coordinate with your legal counsel for any major employment actions to avoid claims. This includes considering and investigating initial inquiries or complaints before they become formal claims.
Also make sure that you have written personnel procedures and that your employee handbook clauses are consistent and lawful. They should be up to date and reflect all current legal requirements.
Every association should purchase Directors & Officers (D&O) insurance that includes comprehensive coverage for employment practices liability. The policy also should include each of the risks mentioned above, which are oftentimes excluded from coverage if you don’t get the right policy. Notwithstanding your best efforts, there inevitably may be a claim that can be expensive and time consuming to defend.
D&O coverage that includes employment practices is relatively inexpensive and will protect the association, its staff and volunteers, as well as the directors and officers. If there is a claim, be sure to provide timely notice after conferring with your legal counsel or insurance advisor. The way you describe your claim in your notice may make a big difference whether your carrier acknowledges coverage.