Bill 168 – Investigating Complaints under your Policy

detectiveOK.  You have a policy about violence and harassment in the workplace.  You’ve got a program in place to implement the policy and to make employees aware of it.  Now someone has made a complaint under the policy.  What are your next steps?

With any luck, the policy will have been written so that your next steps are already laid out.  The complaint will have to be investigated, and based on the investigation, some remedy may be called for.  The investigator will speak to the person who has made the complaint (“the complainant” ) and to the accused person (“the respondent”).  After each interview, the investigator will draw up a statement for each party, which they will sign.  The investigator may also speak to witnesses and have them sign statements as well.  Finally, the investigator will study your policy, and then determine whether the behaviour in question constitutes a violation of it or not.  The investigator’s decision will be in the form of a written report.  The report is delivered to whomever is in charge of sanctions under the policy.  The investigator may be a supervisor, someone from the Human Resources team, or an outside party.  (I offer investigations through my company Principled Dispute Resolution and Consulting.)

An example might be useful here:  Mike is an employee, and Mary is his immediate supervisor.  After learning about the sections of the policy regarding harassment, Mike makes a complaint that Mary has, on several instances, made negative, hurtful, and belittling comments about his recently acquired tattoos.  Some of these remarks were made in private, but some were in the presence of his co-workers Sam and Jill.  The investigator interviews Mike, asking him to describe these incidents.  Based on the interview, the investigator writes up a statement.  Mike reviews it and signs, or asks the investigator to make changes before he will sign.  Next the investigator interviews Mary, to get her perspective on the incidents in question.  Again, the interviewer draws up a statement for Mary’s approval and signature.  Depending on what Mary has said, (“I did make the comments and I’m very sorry,” or “I respectfully asked Mike to observe our dress code and never belittled him”) the investigator may interview Sam and Jill about the incidents that they witnessed, and draw up statements for them.  Finally, the investigator studies the workplace policy on harassment in light of the relevant legislation (in Ontario that means Bill 168). and makes a decision about whether Mary’s behaviour is in violation of the policy.  (Your policy might be stricter than the relevant legislation, but it cannot be weaker.)

What happens after the report is submitted?  Again, your policy should describe the possible sanctions or consequences for violations.  Mediation may or may not be appropriate at this point, depending on the nature of the incidents.  It might be good for Mike and Mary to sit down together with a neutral third party and to discuss, in a controlled environment, what happened between them.  Mediation is an option, whether or not the investigator finds that Mary’s behaviour was inappropriate.  Mike’s hurt feelings are real, whether or not Mary intended him to feel badly, and whether or not her actions crossed the line into harassment.  Mike and Mary may still have to work together, and clearing the air between them is a good idea.

Once you have a policy on workplace harassment and programs in place to implement it, don’t be surprised if you start to receive complaints.  Employees may feel that they no longer have to put up with behaviour that they have endured for some time.  And don’t be dismayed to receive complaints.  Although it isn’t nice to think that harassment occurs in your workplace, being aware is the first step in stamping it out.


Bill 168 – What Are Employers’ Responsibilities?

Boss BalloonsOntario’s Bill 168 lays out the responsibilities that employers have in preventing and responding to workplace violence and harassment.

Employers have a duty to assess the risks of workplace violence, and to consider all potential sources of violence in the workplace (“from strangers, clients, customers, patients, students, workers, supervisors, intimate partners, or family members”).  And they must have measures and procedures in place to control these risks. Employers must also take reasonable precaution to protect workers at risk of domestic violence, if they are aware (or ought reasonably to be aware) of such risks.  It is worth noting that an employer’s obligation is not cancelled if the targeted worker does not want any steps taken to protect her.  While employers must respect their workers’ privacy, they must nonetheless take precautions on behalf of workers who are at risk of violent attack.

Finally, employers must warn workers if, in the course of their work, they will be in contact with a person with a history of violence, and if they are at risk of physical injury.  Once again, privacy concerns may be relevant here, but the right to privacy does not trump the duty to inform workers if they are at risk.

Every employer must have a policy on violence and a policy on harassment (or a single policy on both).  If an employer has 6 or more regular employees, then the policy must be written down, reviewed annually, and posted in the workplace.  Employers must also have a program to implement the policy, and they must make sure that employees are informed about both the policy and the program.

At a minimum, the policy should:

•    State that violence is an occupational health and safety hazard
•    Define workplace violence and harassment, and state that they are unacceptable
•    Make a commitment to protecting workers from violence and harassment
•    Encourage workers to report all incidents of violence and harassment
•    Make a commitment to investigate and deal with complaints promptly
•    Outline consequences of behaviour covered by the policy

To sum up, employers have a duty to recognize inappropriate behaviour and deal with it promptly, and they must communicate to their employees how they plan to fulfill this duty.

I am not a lawyer and none of this is intended as legal advice!  The Ontario Ministry of Labour has some excellent resources for Bill 168 on their website, including examples of policies and programs, and tools for drafting your own policies.  (It might also be helpful to look at one of my earlier posts, How to Write a Code of Conduct.)

Next time:  How to deal with complaints under your policy.

Defining Workplace Violence and Harassment – What Bill 168 Says

365 - 88 - thor the brownhorseOntario’s Bill 168 is an amendment to the Occupational Health and Safety Act and has been in effect since 2010.  Its aim is to establish minimum standards and to set out the rights and responsibilities of all those who have a role dealing with violence and harassment in the workplace. Although you may feel that you “know it when you see it” when it comes to violence and harassment in the workplace, it is a good idea to familiarize yourself with the legal understandings of these terms.

“Workplace violence” means the use, attempt to use, or the threat to use physical force that causes or could cause injury, in a workplace.  The “threat” of violence includes threatening notes, emails, or telephone calls.  (The legislation is silent as to Facebook postings and threats via Twitter.)

It is important to note that the relevant factor here is that the violence occurs in a workplace.  Who commits or threatens the violence is not relevant.  A violent act or threat may originate with another worker, a supervisor, a customer or client, an acquaintance of someone in the workplace, or a random stranger. When employers assess the risk of workplace violence (as they are obliged to do), they must consider all of these possible sources of violence.  It is worth noting that domestic violence that takes place in a workplace is covered under the Act, and that employers have a duty to protect workers from domestic violence in the workplace.

Although workplace violence can have deadly consequences, thankfully it is relatively rare.  Workplace harassment doesn’t often make the news, but I suspect that it contributes more often than we realize to low morale and low productivity.  (See my previous posts on Workplace Strife and What makes for a “good job”?)  “Harassment” is defined as a course of “vexatious” (bothersome) comment or conduct that is unwelcome, or ought reasonably to be known to be unwelcome.  Examples include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, and making offensive or intimidating phone calls.  A “course” of comment or conduct implies that the behaviour in question has happened more than once.

Does this mean that a supervisor can no longer criticize a worker’s job performance?  No.  Reasonable actions on the part of a supervisor that are part of his or her normal work are excluded.  These include changes in work assignments, scheduling, job assessment and evaluation, workplace inspections, implementation of dress codes and disciplinary action.  For example, it is perfectly acceptable for Mary to tell her employee, Mike, that the company’s dress code requires him to cover up his new tattoos while on the job.  It would not be acceptable for Mary to belittle or ridicule Mike for getting tattooed in the first place.  Nor would it be acceptable for Mary to allow or encourage others in the workplace to hassle Mike about the tattoos.

I am not a lawyer and none of this is intended as legal advice!  The Ontario Ministry of Labour has some excellent resources for Bill 168 on their website.

In my next post, I’ll talk about employers’ responsibilities under Bill 168.


What makes for a “good job”?

Coworkers Mídias SociaisMy daughter is an avid player of the iPhone/iPad game “Tiny Tower.”  The object of the game is to make your tower as tall as possible, all the while managing the businesses and apartments within and seeing to the happiness of your residents or “bitizens.”  I think it says something about our recessionary world that the way to make your bitizens happy (complete with smiley faces) is to put them into their “dream job” – whether it is to work in a bakery, a dental office, or a tattoo parlour.  Consider that for a moment – the way to happiness isn’t through leisure, family and loving relationships, knowledge or spiritual enlightenment, but through having the right job.  (Another perspective on “Tiny Tower” appeared here, on the “PopMatters” website.)

Most of us spend a lot of time at work, and there is no doubt what happens at work contributes to our sense of well-being.  And most of us recognize that we’re better suited to (and would be happier doing) certain jobs rather than others.  But a recent study suggests that what makes us happy at work is not always what we think it is.  Thomas Cornelissen examined the data collected by the German Socio-Economic Panel, a household-based survey of the German population which started in 1984 and has now surveyed over 20,000 adults.  He found that the three most important factors in job satisfaction were (in this order)

  • Relations with colleagues and supervisors
  • Task diversity
  • Job security

Cornelissen’s article, “The interaction of job satisfaction, job search, and job changes. An empirical investigation with German panel data” appeared in volume 10, no. 3 of the Journal of Happiness Studies. (He also found that lack of job satisfaction leads to the probability of job search, which in turn leads to increased likelihood of job change, especially when labour market conditions are favourable.  But that is what you would expect, isn’t it?)

The lessons for managers seem clear, if not always easy or obvious to put into practice.  Employees will be happier and will be more likely to stay on the job if their relations with one another and with management are good.  And how to help develop and maintain those good relations?  Make sure that your employees can talk to you.  Understand the cost of workplace strife.  And when conflicts arise, consider workplace mediation .

Anger on the Job

I recently read a terrific article on anger in the workplace:  Deanna Geddes and Lisa T. Stickney, “The trouble with sanctions: Organizational responses to deviant anger displays at work,” published earlier this year in Human Relations (vol. 64 no. 2).  The authors surveyed employees in the U.S. about expressions of “deviant” anger they had witnessed in the workplace, the responses by management and co-workers, and about overall outcomes.  Their results may surprise you.

I often work with people who have been on the receiving end of or witnessed an angry outburst.  Someone (an employee, co-worker, neighbour, or partner) simply “lost it.”  The specifics may include yelling, screamed obscenities, slamming doors, threats of violence, hurtful email messages WRITTEN IN ALL CAPS, and the uncomfortable silence that follows, lasting from a few hours to several days, when no one is sure what to say or how to respond, and everyone fears what might happen next.

While it is uncomfortable to be on the receiving end of an angry outburst, being the one who “loses it” in front of others is hardly much better.  I wrote in an previous post that our sense of anger is often tied to our perception of injustice.  Although there are people who become angry at everything (or at nothing), expressions of anger sometimes have a legitimate cause.  Anger in the workplace can signal systematic and significant problems.

Geddes and Stickney found three different kinds of responses to anger in the workplace:

  • Sanctions:  These may be formal (warnings, suspensions, dismissal) or informal (coworkers distance themselves from the angry person or respond with anger in kind).
  • Support:  Management and/or co-workers try to understand what caused the outburst.  They may speak with the offender about his or her behaviour in a supportive manner.
  • Avoidance:  Everyone pretends that the outburst never happened.

The authors found that when management and co-workers responded to anger in a supportive, problem-solving manner, the results could be positive.  As the authors write, “even intense emotional outbursts can provide information, and if responded to more compassionately, can lead to favorable change.”  They found that even a single supportive act by a manager or co-worker could significantly improve a problematic situation.

Surprisingly, acts of deviant anger, even physical acts of anger, were found sometimes to have significantly positive effects in the workplace, even though they were often met with formal sanctions.  Physical anger displays and employee dismissal were highly correlated, but there was no association between dismissals and positive change in the workplace.  So whatever made the situation better, it was not simply because one angry person (a “bad apple”) was removed.  The authors think it more likely that a physical act of anger, because it is so highly visible and difficult to ignore, prompts an immediate response by management, including attempts to address the cause of the emotional outburst.

The least effective response to anger?  Pretending that it didn’t happen.  The evidence in this study indicates that ignoring emotional episodes is not good practice.  Not only is the opportunity for positive change lost, but the lack of any response is frequently troubling to other employees.

The lesson for managers:  When employees “lose it” on the job, there must be a response.  Emotional displays that reflect an aggressive or harmful intent must be sanctioned, and hostile or violent employees must be removed.  Less intense and troubling outbursts can lead to positive change if they are used to identify those workplace conditions that require attention.  Responding to anger and other emotional outbursts can be difficult, but the viability of your business may depend on it.

Can your employees talk to you?

My client looked at me in exasperation. “Can they really feel as though they can’t talk to me?” I could understand his frustration. The owner of a small business with a “flat” structure, he is a genuinely nice guy who tries to be fair and thinks of himself as accessible. Why wouldn’t his employees feel like they could talk to him?

If you’re the boss and suspect that your employees may not feel comfortable approaching you, here are some things to consider:

Privacy. Is your office relatively private or can conversations be easily overheard? Some will resist approaching you if they feel the conversation might become known to others. (And it doesn’t matter how much you trust your assistant at the next desk or behind the partition. It doesn’t follow that others will necessarily feel the same way.)

Workplace Geography. Is your office set apart from the general workspace, such that it would be impossible to approach it without being seen by everyone else? People – for all kinds of different reasons – may not want to be seen “talking to the boss.”

Past history. In the past when employees have spoken with you, how have things gone? Even if it seemed the conversations went well, could you have somehow given the message that you didn’t appreciate being disturbed? If the main reason you speak with employees is to deliver reprimands, people may be reluctant to seek you out.

Do you talk to them? Maybe you’re not a “people” person. Maybe you’re more comfortable with equipment or bits of code than with conversation. If you’re uncomfortable speaking with employees, some will pick up on this and avoid talking to you, if only to spare you possible discomfort. If you suspect that you may have acquired such a reputation, the best way to counter it is to take the initiative and initiate conversation with others. You don’t have to make drastic changes. Make an attempt to have a short conversation with a different person each day. Once people see that they can have a conversation with you about matters unrelated to work, they may feel more comfortable coming to you with more sensitive topics.

You’re still the boss. No matter how great of a person you are and how approachable you make yourself, some people will always find it hard to talk to you.

The Cost of Workplace Strife

Velociraptor-Free Workplace

I have a friend who works in construction and recently moved from one company to another. (I’ll call him Jerry.) I was surprised when he told me, because I knew that the job he left was well-paid. I wondered why he would give it up. Jerry explained that the job had involved driving out to the site with his immediate supervisor, and the guy was a total jerk. He would make nasty remarks to Jerry and put him down on the drive to the job site. This was bad enough, but having to face it first thing in the morning was too much. Rather than confront his supervisor, Jerry quit as soon as he found a comparable position. Jerry is not someone who avoids conflict at any cost and he can more than take care of himself. Like a lot of people, he expects some basic civilities in the workplace. He told me that he was now making less money, but was much happier. A well-paid job didn’t make up for feeling stressed and aggravated at the end of the day.

I hesitate to call what went on between my friend and his ex-boss “conflict” because conflict usually implies mutually hostile interactions. In other words, it takes two to have a conflict, as it takes two to tango. And “bullying” doesn’t seem correct either, because bullies tend to single out particular victims. The ex-boss was apparently nasty in an equal opportunity way and Jerry was not treated particularly worse than anyone else. While I don’t know if “workplace strife” is the best term for this problem, I do know that the cost to businesses is huge. The company lost the investment it made in training Jerry, and had to assume the cost of training his replacement. Who knows how many other employees were lost for similar reasons?

The connection between employee happiness and a company’s profitability may be closer than many have realized. In an article in Perspectives on Psychological Science, published last summer, researchers analyzed the relationship between employee satisfaction (examining surveys and retention rates) and the companies’ financial performance, for over 2000 business unit. They found that if employees had positive perceptions of their jobs, the companies benefited through better retention rates, increased customer loyalty, and better financial performance. Now, you might suspect that the employees were happy because the companies they worked for were doing well – but that wasn’t the case. The researchers found that employee perceptions affected financial outcomes, more than financial outcomes affected perceptions. (You can read more about the research here.)

The nature of the construction business is such that the work is in different locations all the time. I don’t know whether management was aware that Jerry’s supervisor was a problem. I don’t know if they noticed a higher-than-normal attrition rate from the work sites where he was in charge, or if they ever addressed his behaviour. When management is aware of such problems and they don’t act, this is extremely demoralizing for employees. It sends the message that management condones the bad behaviour, or at least isn’t very bothered by it.

I don’t know what the ultimate solution is when dealing with someone like Jerry’s supervisor. Probably, someone would have to confront him about his behaviour and let him know the affect he was having on others. Many people would rather undergo dental surgery without anesthetic than confront a difficult person. But doing so is part of being a good manager, and I firmly believe that we can all gain the necessary skills. It might never be something you look forward to doing, but failing to do it can have very high costs.

How to Write a “Code of Conduct”

Beating around the Bush

Recently I’ve been working with a client on a project that involves codes of conduct, and I’ve reviewed a number of such codes within a specific industry. A “code of conduct” is a set of rules or proper practices that regulates behaviour within an organization. Many large businesses and organizations have codes of conduct, as do armies, street gangs, criminal conspiracies, and groups of professionals. Even pirate ships, often a byword for lawlessness, had codes of conduct to regulate discipline, division of spoils and compensation for the injured.

Here are some of the things I have found about crafting an effective code of conduct, no matter what kind of behaviour or organization is to be regulated:

Purpose: It is worth spending some time thinking about why you need a code of conduct before starting to write. What kinds of activities need to be regulated and why? What values do you want to promote? What kinds of practices do you want to discourage?

Content: The most effective codes I have seen contain both abstract language about values and some clear, concrete guidelines. It is fine to say something along the lines of: “Members of the organization will be honest and scrupulous in financial dealings.” But you might also want to say, “Employees will neither accept nor offer bribes.”

Scope: Don’t try to be exhaustive. The idea is not to regulate every aspect of an individual’s life, or even every aspect of working life. Focus on what you believe is most important.

Consult: Talk to the people who will be using the code. What kinds of ethical challenges do they face? Which work-related situations do they find most troubling? If the code is to be effective it has to be relevant to the experiences of those who are expected to abide by it.

Length: If you want the code to be a document that people refer to and consult on a regular basis, it should not be too long or complex. A good length to aim for is one page, maximum.

Style: I’ve seen several codes of conduct that were all too obviously written by lawyers. While it is a good idea to have a code vetted by a lawyer, it should not require a law degree to understand it.

Keep it current: As your organization develops and grows, members will face new challenges. And technological advances bring their own ethical challenges. Ten years ago, no one needed a company policy about employees’ Twitter activity. Today, it might be quite relevant. Be sure to review and update your code of conduct periodically.

Why use Workplace Mediation (as opposed to another solution)?

When I took my mediation training, several of my fellow students were already working in human resources or employee relations. Despite their different perspectives, they could all agree on one thing: microwave ovens are a major source of conflict in the workplace. Whether one person is warming up food that another finds smelly, or someone else is hogging the oven so no one else can warm up their lunch, the microwave is all too often a source of tension.

I found this surprising at the time and I was reminded of the microwave-as-flashpoint when I read about the recent Superior Court review of an Ontario Human Rights Tribunal (OHRT) decision. In the original decision Maxcine Telfer, a small businesswoman, had been ordered to pay $36,000 to a former employee because of alleged discrimination and harassment. Among other things, the OHRT arbitrator found the staff microwave use policy to be discriminatory. The complainant said that she began to feel targeted after her boss complained about the smell when she warmed some curry in the microwave. Apparently Ms. Telfer is extremely sensitive to smells and the office had a strict “no scents” policy in place.

Conservative commentators have had a field day with this story, and I won’t say more about the original decision or its reversal by the Superior Court. What I found most interesting about the episode was how a relatively trivial matter can blow up into something much more serious. If they’re fortunate, employees will find ways to get along despite microwave abuse and other sources of tension. But what to do when a low-level conflict intensifies? Usually it isn’t possible or desireable simply to fire or transfer everyone involved in a conflict. Better yet, how to devise policies in such a way as to avoid unnecessary conflict in the first place?

Workplace mediation can help. In mediation, each party in the dispute has a chance to express their point of view. Parties get the opportunity to listen to and understand each other’s perspective, and then work together to come up with creative ways of resolving their difficulties. Bringing in a mediator to facilitate discussion, whether this means an outsider or someone already in the company with mediation training, is a good idea for a number of reasons. Research indicates that people are more likely to respect a policy or decision that they have had a hand in crafting. If the boss simply devises and hands down a policy inevitably there will be someone who doesn’t feel that their concerns were taken into consideration. This can be bad for morale. A policy that the boss has devised without fully consulting employees may not really address all of the issues that are important to them. A group of people working together is more likely to devise a workable solution than a single person working alone. Moreover, while having a fair and reasonable, say, “microwave use policy” may be the single most important element in a happy workplace, it is not the sort of thing that most employers will want to spend a lot of time thinking about. Mediation is a way of sharing the burden.

Ethics and the Culture of Overwork

I Want to be a Coal Miner - Cover A friend recently told me that she hadn’t seen much of her husband lately. At first I wondered if their relationship was on the rocks. Instead it turns out that the new head of his division insists on 12-hour days from all the senior people. Now, I’ve put in my share of 12-hour days. When I had my first jobs teaching philosophy in university I had to work very hard and sometimes kept long hours. But I liked the work and I didn’t mind that much. I understood that many people have to keep even longer hours at jobs that they don’t find so rewarding, and I realized that companies sometimes have “crunch” times when they must make excessive demands of their staff.

My friend’s husband – I’ll just call him “Simon” – does not work for a struggling start-up, and he doesn’t have the kind of job (like, say, in a law firm) where there is a direct relationship between the hours he works and the amount of money he brings in. He works for a major company in a profitable industry. And while the industry does provide a socially useful function, it isn’t as if he’s about to find a cure for AIDS or devise a way to stop global warming. Simon is good at what he does and well compensated for it. I suppose that if the long hours bothered him that much he might decide to seek work elsewhere.

So while I understand that 12-hour (and longer) days might sometimes be necessary, I find it a bit troubling that a 12-hour day is the expected norm. What will they do when a crunch really does arrive – provide sleeping bags and a catered breakfast so that employees don’t even have to go home? I imagine that Simon’s boss has made his demand in order to establish a certain culture in the company. Any ambitious man or woman a little lower down in the hierarchy need only to consider the hours of the senior people to know what they must do to get ahead.

The boss’s ukase strikes me as bad management for a number of reasons. Demanding that employees put in twelve-hour days is not the same as demanding that they do 12 hours worth of work. The jobs that are affected are knowledge-based, requiring creativity and advanced problem-solving skills. It is not the sort of work that you can do effectively for long hours many days at a stretch. This means that some of those compelled to put in a 12-hour day are doing their usual seven or eight hours of work and stretching it out to take up 12 hours. What a waste of time and human potential! It probably also means that some of the twelve hours are taken up by non-productive, time-wasting exercises. I can imagine endless boring and irrelevant meetings and long back-logs of unread emails that one should never have been sent in the first place. When you factor in the stress of long days, resentment at the fact that employees can no longer make time for the gym or other interests, and the added strain on their families, you end up with a pretty unhappy (not to say dysfunctional) workplace.

It is puzzling to me that a company would hire people they believe to be smart and capable, and then treat them like coal miners who must spend a certain number of hours chipping away underground. Let’s set aside the question of whether this amounts to bad management. Are such demands unethical? There are reasons to think so. The company Simon works for is in an industry in which there is a certain amount of hand-wringing at the under-representation of women. I’m willing to bet that every major company in the industry has a policy to address this concern. Insisting that employees regularly spend twelve hours at the office if they want to get ahead is especially hard on women, who often have non-negotiable family obligations. A corporate culture of overwork is just one more barrier to their success.