Penn State Ordeal Reminds Employers that Clear Policies and Reporting Structures Are Critical

November 11, 2011

Publication| Labor & Employment

We are all shocked and saddened by the tragic series of events unfolding at The Pennsylvania State University. The alleged abuse of children will have a devastating and profound impact on the victims, their families and the University—faculty, students and alumni.

For the employer, Penn State, and many of the current and former employees (including coaches, top university administration, maintenance staff and graduate students), today’s crisis is complicated by the fact that neither the alleged perpetrator nor the victims are employees of Penn State (and were not at the time of the alleged incidents). Unfortunately, it is the alleged actions and inactions of the employer and employees that have received more national media exposure than the alleged criminal and his victims.

What would you have done if you were in Joe Paterno’s shoes? What does your company require of its supervisors who hear about or see inappropriate actions in the workplace? Is there a mandatory reporting requirement in your company policy that addresses this behavior?  Is there a duty to investigate every complaint and, if so, whose duty is it? Do supervisors have a duty to follow up?

Do your supervisors know the answers to these questions, and do they understand their obligations under your company policy and the law?

The events at Penn State shed light on a company’s obligation to promptly investigate and resolve, as appropriate, any and all allegations of wrongdoing. Employers should have a strong and unambiguous policy to prevent harassment and inappropriate or criminal behavior in the workplace. Such policy should be applicable to all persons who enter the company’s facility, including any of the company’s former employees, volunteers, consultants and independent contractors. The Penn State scandal raises the question of if and when a supervisor has a duty to follow-up after he or she has reported a complaint. Employers are encouraged to learn from this unfortunate situation by taking the time to review their policies to ensure that the language regarding reporting, following up, documenting and appealing is clear, direct and mandatory. In reviewing, perhaps employers should consider a double reporting mechanism so that if one manager ignores the complaint, the complaint will likely be addressed by another member of management. Keep in mind, however, that when an employee lodges a complaint to only one manager, the employer is on notice of the behavior and is therefore required to act appropriately under the law.

Having a great policy in writing, however, is not enough. Employers should ensure that their employees, particularly their first-level supervisors all the way up to the president, understand and follow the reporting and investigation obligations. Training or retraining may help foster a culture that ensures compliance with clear policies and established processes.

If you have any questions, or if you would like assistance in reviewing, and training on, your workplace policies, please contact a Richards Layton attorney. 

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