By Stephen Bruce, PhD, PHR

Just My E-pinion

Moore's suggestions came at BLR's National Employment Law Update held recently in Las Vegas. Moore is president and founder of Employment Practices Group in North Andover, Massachusetts.

Do's and Don'ts for Talking About Sexual Harassment

Do's for the HR Professional

• Review relevant policies beforehand
• Stay current on policies and laws
• Seek legal advice if you're unsure or if the situation is potentially litigious
• Keep the discussions, observations, and goals objective
• Be clear, direct, and straightforward
• Keep the dialogue as concise as possible
• Remember that you have two potential victims—do not prejudge
• Enlist a third party in potentially litigious meetings
• Listen, and record comments and questions from the employee
• Communicate in person, by phone as a second choice

Don'ts for the HR Professional

• Don't let your supporting comments offer opinion ("I can understand that you're upset" is OK;  "You have a right /good reason to be angry" isn't)
• Don't forget your body language
• Don't give the appearance of bias
• Don't soft-pedal the tough discussions—sparing feelings won't work anyway, and may muddy the message to the employee
• Don't make any promises, other than to find out more information
• Don't discuss other similar situations
• Don't answer questions immediately unless you know the answers—just listen and record them
• Don't use email unless it's a pdf; emails can be altered and forwarded
• Don't use email for the initial communication, delivering a tough message, or negotiating

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Do's and Don'ts for Talking About Terminations

Do's for the HR Professional

• Review relevant policies beforehand—performance expectations, workplace conduct, discipline, termination
• Research!!!  Personnel files, emails, supervisor's satellite files, comparator information, etc.
• Ensure that benchmarks and behaviors are measurable
• Be sure that new managers or managers who have never handled this particular situation receive coaching and role-playing if necessary
• Ensure that criteria are well-documented
• Ensure that the decision-making was fair, equitable, and non-discriminatory or retaliatory—including the impact
• Anticipate objections
• Enlist a third party in potentially litigious meetings
• Listen, and record comments and questions from the employee
• Address the employee one-on-one, in person
• If a layoff, explain the criteria for the selection process
• Keep in mind:  terminations are a process—not a one-time event
• Seek additional legal advice if you're unsure or if the situation is potentially litigious—think protected categories, protected activity, public policy

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Don'ts for the HR Professional

• Don't forget the need to document, document, document
• Don't be ambiguous or consider termination to be a negotiation
• Don't neglect to understand the need to maintain composure—balance business needs and human compassion
• Don't deviate from the message

In general, says Moore, in dealing with tricky HR situations, do the following:

• Think risk-management and potential legal claims
• Be prepared!
• Use scripts and talking points
• Know your policies, the law, and precedent
• Remember objectivity
• Do careful documentation, including signatures

The ultimate goal?  Avoid misunderstandings, take necessary action, ensure legal protection, and retain employee morale!

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