You have stated: "We don’t know what to do. All but one of the female employees in our office has complained to us that our number one male sales executive is highly abusive, offensive, “touchy feely” and embarrasses them while openly joking around with other males in the office. We have spoken to him repeatedly, and it now seems he is punishing the ones he believes complained. No one will dare speak to any of us about it for fear of having to endure even worst conduct, such as staying late, doing menial tasks, etc. We are worried about liability, but our revenues depend on him."
The high revenue producer who has loose lips is one of the most common calls we receive. No matter how many times the employer counsels the accused, the conduct either does not stop, or, as in this example, adds an additional claims of retaliation, failure to prevent unlawful harassment and retaliation, and negligent supervision/retention, to name just a few. The employer is right to worry about liability here, because this is the type of fact pattern that causes California juries to award high punitive damages award.
This does not mean the employer should terminate the high producer on the spot, and in fact, should not, or face claims by the terminated high producer. At this point, the employer must immediately launch a confidential attorney-client privileged investigation of the female employees’ allegations. In these situations, we recommend that the client retain an experienced employment attorney trained in workplace investigations, to properly conduct the investigation under the attorney-client privilege. The investigator acts as a fact-finder. Upon conclusion of the investigation, we are in the best position to analyze the allegations, claims and recommend how to proceed as to all parties involved. The employer’s obligation is to end harassment, discrimination and retaliation. Depending on the allegations, the high producer’s responses, and conclusions reached, there are a variety of corrective actions that the employer may impose short of termination, so long as it stops the conduct.
While the time and cost of conducting investigations is not well-received by employers, the benefits are significant. Not only are investigations mandated by law, if not done right, creates additional liability for employers. Given the importance of the high producer to your Company, it is extremely important that the investigator have no affiliation with the Company.