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Workplace Sexual Harassment: More HR Guidance Needed

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From news anchors, to titans of the entertainment industry, to corporate executives, and elected officials, headlines show no one is above the fallout of sexual harassment in the workplace. Millions of dollars have been paid in settlements and the once mighty have fallen in disgrace.

Yet, a belated resignation or termination doesn’t absolve the employer from legal action—and often leaves the aggrieved and/or juries wondering how the employer might have handled the situation better.

How can risk managers, human resources (HR), executives and companies they serve help prevent sexual or other forms of harassment? The question becomes more pressing now with the “Ending Forced Arbitration of Sexual Harassment” bill. The proposed legislation voids forced arbitration and allows disputes to proceed in court rather than in a confidential arbitration setting. Proponents believe the prospect of making these cases public will reduce such activity in the workplace.

Smart employers aren’t waiting on legislation to make workplaces safer, however. They are planning and training now to reduce sexual harassment to mitigate risk, and therefore, potential damage claims affecting executives and employees across employer ranks. Ensuring such a workplace should result in fewer acts and reports of harassment and insurance claims. As all employers are interested in the bottom line as well as a positive work environment, a more defensible posture against future claims should be top-of-mind for every risk manager and HR Executive.

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Old policies prohibiting harassment must be dusted off, reviewed, updated and publicized. These policies protect those whose accusations are proven to have merit or are brought in good faith, they create consequences for those proven to have abused others, and should clearly define expectations and ramifications.

These strategies can help risk managers, HR teams, and employers keep their organizations out of the headlines:

  • Review internal policies and procedures. When was the last time your organization reviewed the HR policies and procedures manual? Older manuals may ineffectively address the issue, including under the Equal Employment Opportunity Commission (EEOC) guidance.
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    Once updated, make the document available to the workforce in print and online. However, a manual of policies is only the beginning.

  • Training is not a one-time event for select individuals. To paraphrase Aristotle, inclusion training in the workplace is not an act, but a habit. Hire a professional skilled in workplace diversity and inclusion training, and make courses mandatory from the rank and file to the C-suite. Refresh the training every few years, and make sure every new hire is trained as part of onboarding.
  • Create a “See something, say something” culture. Sexual harassment is avoided best in organizations with a culture of transparency and accountability. Management must welcome reports of unwanted sexual advances, and then investigate such claims. Such activity reported but not acted upon can worsen the environment, and become powerful evidence for claimants in harassment lawsuits.
  • Establish a realistic reporting procedure. If protocol urges an aggrieved employee to report harassment to a direct supervisor—and that supervisor is the alleged perpetrator—an obvious conflict arises. Encourage employees to speak directly to HR or a high level manager such as a division, general or plant manager. The reporting procedure should ensure that certain steps are taken so complaints are not swept aside.
  • Empower HR to investigate all claims. If HR receives a complaint, it has a legal obligation to investigate further. Even if the complainant fears an investigation could jeopardize the alleged harasser’s job, the law is clear that a prompt investigation occur to stop any alleged harassment from continuing. Termination or disciplinary action are not necessarily required; often, claimants just want the behavior to stop. It could be immature or otherwise benign playfulness that crossed the line—behavior a simple discussion could remedy.
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    Follow up with the complainant to ensure the behavior has stopped and to document that follow-up occurred.

Effective policies and procedures in place and rigorously followed can help employees know the organization takes sexual, racial, and other forms of harassment seriously; insurers know you’ve established policies designed to protect both employees and the organization against incidents of harassment; and for those who might see million-dollar claims in the news and think they could be next, that you’ve set up your defenses.

State of Privacy in 2018: Q&A With Richard Purcell

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Jan. 28 marks the annual Data Privacy Day (DPD), which was adopted in North America to bring together businesses and private citizens in an effort to share strategies for protecting consumers’ private information. Richard Purcell, DPD advisory board member and CEO of the Corporate Privacy Group spoke to Risk Management Monitor about the current state of privacy.

Risk Management Monitor: How do you view privacy?
Richard Purcell: The concept of privacy is really complex and layered. I like to think of it as being grounded by two basic behaviors—respect and discretion.

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 The idea of privacy is not the same as secrecy. Secrets are not shared and are kept hidden as unknown ideas or thoughts, whereas privacy is the act of sharing information, trusting that the recipient will not share it any further.

RMM: How has technology redefined privacy?

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RP: Over the last several years, we’ve heard from individuals who believe that their privacy has been assailed. Upon examination, we might find some reasons that are relevant to our emerging technology use:

There are many instances in which people have lacked respect for their own information, sharing personal information with others and commercial interests without restraint. A simple review of Twitter, Facebook, Instagram, Flicker, Tumblr and other social media sites confirms this. Just as often, commercial players have shown a lack of respect for the personal information entrusted to them by individuals. Examples include banks that have used customer information to open accounts without providing notice or asking for consent. This is a distinct showing of disrespect for the information.

Information has become the basis for commercial activity, so using and sharing personal information is quickly becoming how companies make money—Facebook is a social media site, but makes more than 90% of its revenues by selling users’ data to advertisers—credit bureaus make their money solely be collecting financial info, not from people, but from other companies, in order to calculate risk and sell reports (for example, credit reporting has a long history regarding privacy thru FICRA, FACTA, and OECD FIPs.).

RMM: In 2000 you were named Microsoft’s first corporate privacy officer. How has the privacy landscape changed since then?
RP: Privacy and data protection are beginning to be better and more closely integrated into security practices. It’s taken a long time to get them better integrated.

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Security practices have strong levels of discipline without much of a human factor. Privacy practices have strong moral bases, which security is getting more in tune with, so they are sharing their traits in ways that are helpful.

We are not there yet, though, because security is a binary condition. You either have the security practices or you don’t. Privacy is harder to define because practices are more behaviorally based. We still find privacy issues are driven by human failings, errors or miscalculations as opposed to technologies.

Privacy professionals have gained more of a voice and authority over time in their organizations. They are not just advisers anymore, saying ‘Watch out for this,’ or ‘We can’t do that.’ They have become people with decision-making authority, which is only increasing. The position analyzes conditions and bases those recommendations on risk profiles and the challenges they present. Companies are then free to choose whether they take the risk or mitigate it.

RMM: What developments will impact your work in 2018?
RP: Regulatory changes matter a lot and apply to industrial sectors in the United States. External regulations are much more broadly applicable.

EU GDPR. Any company doing business in the EU has to adjust its governance program to comply with the GDPR by late May 2018. That means taking a broader definition of personal data; documenting its data processing activities; strengthening its user consent provisions; developing support for data erasure, portability and rectification; enhancing oversight and data breach responsiveness; and generally paying more attention to data protection.

EU ePrivacy. Broadband providers in the U.S. may celebrate the FCC dropping of the net neutrality/privacy rules, but they still have to deal with the EU ePrivacy Directive.

Australia, Korea, Japan and even China are strengthening their data protection programs. China announced its displeasure with the practices of Ant Financial (an Alibaba affiliate), Baidu (search organization) and Jinri Toutiao (newsfeed organization) for lacking adequate policies and practices in collecting, using and sharing personal information. You know something important is happening when China begins enforcing stronger privacy regulations.

Reputational Crises Put CEOs at Risk

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When reputational crises hit, market cap, sales, margins and profits are all on the line. And these situations are becoming more frequent—and more costly—than ever, with a recent study showing an increase in losses from reputational attacks increasing by more than 400% in the past five years.

But it is not only the corporate entity facing challenges, individuals in leadership—particularly CEOs—face personal risk as well. It has become clear that CEOs need tools to protect themselves as well as their companies’ reputations. Since damage from reputational attacks takes place in the court of public opinion, traditional liability solutions, such as directors and officers coverage, are not effective. But new tools are available in the form of a reputation assurance solution that can help deter attacks from even happening and bundled insurances to mitigate the damage when they do occur.

Research by Steel City Re has found that:

  • Financial losses related to reputational attacks have increased by more than 400% in the past five years, a trend that continues.
  • There is an increase in public anger and, as a result, more blame is being cast upon recognizable targets, such as CEOs.
  • Anger by stakeholders is fueled by disappointment—the gap between expectations and reality—which is all too often fueled by the company’s own actions.

Against that backdrop, the turnover rate among CEOs is increasing, with 58 of the S&P 500’s CEOs transitioning out of their jobs in 2016 according to SpencerStuart (although not all as a result of reputational crises). That is the highest number since 2006, a 13% increase over 2015, and a 57% increase over 2012.

If that weren’t enough reason for concern, history shows that when strong companies and their brands come under fire, their reputations eventually recover, despite the initial and medium-term impacts. Individual reputations of those companies’ leadership are not nearly as resilient, however, especially at a time when society; be it the media, social media, politicians or direct stakeholders; seems intent on personifying crises and affixing blame on individuals in positions of authority. And for CEOs, a reputational crises can affect their career and compensation for many years ahead.

In this environment, it is essential that risk managers understand the tools that are available to protect both companies and senior executives personally. Serving as a third-party warranty and available only to highly qualified insureds, reputation insurance attests to the efficacy of the company’s governance and operational practices, as adopted and overseen by the board and implemented by the CEO. Such coverage can deter reputational attacks in much the same way as a security sign on the front lawn deters burglars. It is a sign of quality governance. And when incidents do occur, it provides a built in alternative narrative to counter the attacks that are bound to occur. Finally, it gives the company and key individuals financial indemnification to mitigate any damage that ultimately does take place.

Just as “doing the right thing” did not protect directors and officers from liability in the era before the wide adoption of D&O insurance, it is no guarantee that attacks in the court of public opinion won’t take a significant financial toll. But it is one of the few solutions proven in the court of public opinion. In today’s culture, reputations are in jeopardy as never before and risk managers must utilize all tools available to protect those on the front lines.

Food Defense Initiatives Can Safeguard Your Company

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When most people think of product contamination and recalls, the first thing that comes to mind is food poisoning cases from bacteria such as e-coli and listeria. Food and drug companies, however, are experiencing malicious and intentional product tampering that can be equally deadly and dangerous. Many of us can’t forget the 1982 cyanide Tylenol crisis, Johnson & Johnson’s worst nightmare as reported cases of death from their products came pouring in, causing recalls nationwide.

The Tylenol case was long ago, but unfortunately, decades later and despite modern day advancements in packaging and processes, there is still a steady flow of cases globally, where bad actors contaminate products. This can lead to possible danger for customers, recalls, lasting reputational damage and potentially huge financial losses.

For example, in 2013, unsafe levels of the insecticide malathion was found in a Japanese frozen food company’s product after customers reported a chemical smell coming from the products and almost 3,000 incidences of sickness from consuming them. As a result, the products were recalled and the company shut down, causing its stock to plummet.

Why does it happen?
The main motive for tampering with food products is to make a statement. Bad actors aim to cause injury or economic and reputational harm to companies, especially since news of these acts can go viral, creating the negative impact on companies they hope to achieve.

As with cases of cybercrime, these companies are in a sense being “hacked” and need protection. Like with the mysterious hacker, manufacturers and retailers are facing this threat from both inside and outside the organization.

Oftentimes an employee within the company is the culprit, such as in the case of Just Bare Whole Chicken. A recall of 55,608 pounds of chicken sold nationwide went into effect last June, after black sand and soil was found in some Gold’n Plump and Just Bare branded poultry. The employee responsible was identified and terminated, but the effects of the disruption were lasting.

Taking Preventative Measures
Food companies should have a full understanding of the risks they face, the insurance available, and the regulations associated with product tampering.

Insurance: Malicious Product Tampering (MPT) insurance addresses deliberate contamination, or the threat of such contamination of products when a company or the public has a reasonable belief that the products might cause bodily injury if consumed. MPT insurance should be considered as part of a total product recall risk management solution. Many of these insurance programs provide experienced crisis management consultants to help a company manage and recover from such incidents efficiently and effectively in order to minimize loss. When putting together a risk management program, make sure to have first and third party coverage for product recall, including malicious contamination, business interruption, product extortion, product recall costs, rehabilitation expenses, replacement costs and consultant costs.

Defense initiatives: There is a difference between food safety processes, which protect food from unintentional contamination by products that are present in the production plant, and food defense initiatives, which protect from intentional tampering by unknown substances. Some people use the terms interchangeably, but food defense is key to protecting against tampering.

In 2016, the FDA issued a final rule on Mitigation Strategies to Protect Food Against Intentional Adulteration and, as part of this initiative, released the Food Defense Plan Builder program, which assists food facility owners and operators with developing personalized food defense plans. This user-friendly tool should be quite valuable to your food defense strategy.

Regulation: The Food Safety and Modernization Act aims to ensure that the U.S. food supply is safe by focusing on preventing contamination before it happens rather than simply responding to it. It requires mitigation strategies to be put in place in certain food facilities.

With these risk management strategies and the right insurance plan in place, companies can protect themselves and help mitigate their risks of food or product tampering.