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When do you have a “Duty to Act”
Be Ready and Leave the Light On.

Written By: Billie P. Garde, Clifford and Garde LLP

The best qualities for ECP personnel are to be trusted and respected. That is the way it should be, because our profession wants to be the avenue of choice when any member of the workforce confronts a problem that they can’t find a way to solve. Fundamentally ECP programs exist to receive safety concerns, evaluate those risks, and ensure that those concerns do not present a safety impact. But, as we know, most of the issues that come our way are about people issues – from complaints of being treated unfairly, to personality conflicts, to being bullied and harassed. Somewhere along that spectrum, are complaints that trigger a “duty to act” by any member of the ECP staff or management that become aware of it.

A “duty to act” in a strict legal sense is when taking action is necessary to prevent harm to another person or the public. Issues that prompt a duty to act in an employment context are, generally, pretty obvious – any form of assault or physical harm, sexual assault (including rape, unwanted touching of a sexual nature, stalking, or similar conduct), threats, actions, or aberrant behaviors that threaten safety of the plant or people. Luckily these issues are rare; however, in this new environment of zero tolerance, “me too” campaigns, and “time is up” initiatives against sexual harassment the ECP department needs to brush up on plans on responding to such issues –from the present and the past.

This is particularly true because the United States Supreme Court has held in sex harassment and hostile work environment cases that employers may defend themselves for actions of a supervisor or managerial-level employee by showing that it took reasonable steps to prevent sexual harassment and other forms of misconduct and made efforts to correct harassing behavior when the company became aware of it. Employers may also argue that they are not liable if an employee did not take advantage of available reporting or remedial measures to complain about incidents of sexual harassment. Conversely, if an employee did report such an incident to the ECP or HR department, and nothing was done about it, the failure of the company to take effective corrective action will also be considered by a court. While most employee complaints do not result in lawsuits, the basic principle that the ECP exists to receive concerns and act on them is applicable here.

Here are some tips for preparing for the rare, but inevitable, situations you may be consulted on:

First, do a refresher on your company policies on human behavior and interaction. Is there a clear definition of unacceptable conduct, or is it high level and subjective? Does the policy set out expectations for reporting incidents and guidance on how to do so?

Second, if the policy is subjective, and most of them are, have a conversation with your Human Resources department and your company employment attorney to have as clear an understanding as possible about what the company expectations are for what its expectations are if you receive concerns such as described above. Have a discussion about what those expectations are for issues that may have happened in the past, but either were not reported or not acted on, at the time.

Third, clearly define who within the company is responsible for ensuring that it acts in compliance with its policies and procedures, fully investigates the allegation, and ensures that appropriate corrective action is taken? Is it you or the ECP office – if the concern came to you? Is it HR or Legal, or is it the Ethics & Compliance department? Unfortunately, over the years it has become too common that reported acts of misconduct, particularly of higher level managers or executives, have gone unaddressed or inadequately addressed.

Fourth, leave the light on … and be ready to listen, ensure that the concern receives the response it deserves.


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