Learn Your ‘Uber’ Lesson:An Ounce of Prevention May Well Be Worth a Really Heavy Pound of CureBy Lisa Lamm Bachman

F ollowing a month-long, intensive investigation into allegations of sexual harassment, discrimina-tion and retaliation triggered by

the blog post of an Uber Technologies, Inc. former employee, Susan Fowler, investiga-tors Eric Holder and Tammy Albarran of Covington & Burling LLP recently issued a detailed report to UBER’s board of direc-tors. The investigative report also included numerous specific recommendations for improving the workplace environment, revising the company’s policies and prac-tices, and ensuring the company’s commit-ment to creating and maintaining a diverse and inclusive workplace, all of which were unanimously adopted by UBER’s board of directors. In short, although UBER now has some serious work to do, other com-panies would benefit from considering whether to adopt all or a portion of the recommendations as well. The overarching themes imbedded within the recommen-dations focus on setting the tone at the top and establishing accountability throughout the organization. After a careful analy-sis of the recommendations, it is unlikely that many companies will actually need to take such extreme measures as requir-ing the CEO to move aside or step down altogether. However, starting now, there are a number of objectives and goals that companies should evaluate in order to not only prevent an UBER-like upheaval, but

also strengthen and improve the workplace environment. Consider making a small in-vestment of time and resources in the fol-lowing action items.What training programs are offered to employees and senior management and should the training programs be updated or offered more frequently?

In order to cover all aspects of an organi-zation, it is recommended that specific sep-arate in-person mandatory training pro-grams should be offered to senior manage-ment or senior executive team members, human resources representatives, manag-ers and employees who regularly inter-view candidates. For senior management, such training could be part of a broader leadership program with an emphasis on effectively leading employees, setting and keeping organizational goals, and fostering inclusive leadership that prevents implicit bias. Training for human resources repre-sentatives should include proper handling of employee complaints, conducting and documenting thorough investigations of employee complaints, and how to identify whether an employee complaint or subse-quent discipline decision should include review by legal counsel. Since managers work closely with employees, the training program should be extensive for first-time managers and repeated on a regular basis thereafter. It is recommended that manager training include a focus on diversity, inclu-

sion and recognizing implicit bias. How-ever, just as important for management to be effective, training must include basic strategies for effective communication with employees, how to provide constructive feedback to employees, how to appropri-ately conduct employee performance re-views, how to address performance-related issues, and handle employee complaints. Managers would also benefit from train-ing that addresses basic human resources issues including discrimination, harass-ment and retaliation matters so that such issues are recognized and elevated to senior management or legal counsel as necessary. Finally, interview training should include how to conduct inclusive interviews and basic interview skills, including a standard-ized interview process, suggested questions for candidates and how to evaluate the can-didate afterward.What is the status of the human resources department and is there a well-defined complaint process?

It is recommended that company lead-ership should work to view the human resources department as more than just an employee recruitment department. A company’s human resources department should be fully equipped and supported in its efforts to protect and retain the com-pany’s employees. Such support includes ensuring that the human resources depart-ment is adequately staffed and funded, as

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well as supported by leadership with regard to making recommendations concerning employment-related issues. In this regard, a strong show of leadership support for the human resources department would include adopting a zero-tolerance policy for substantiated complaints of harassment and discrimination. Consistent applica-tion of a zero-tolerance policy would pre-vent excusing or disregarding complaints against long-term employees or high performers. In order to promptly and ad-equately address complaints of harassment, discrimination and retaliation, companies must have an effective complaint process for employees to utilize. The complaint process includes ensuring that all employ-ees know how and to whom they can re-port workplace complaints, including al-ternative levels of reporting to encourage employees to report their complaint to a source other than their immediate supervi-sor if concerned about potential retaliation.Are the anti-harassment and anti-discrimination policies current and what other steps should be taken to enhance prevention of workplace complaints and misconduct?

While many companies typically have standard anti-harassment and anti-discrim-

ination policies set forth in an employee handbook, companies should consider up-dates to the policies that include prohibiting conduct which appears to be directed toward another employee because of their protected characteristics, despite whether the conduct is unlawful. Likewise, while many manag-ers believe that they are capable of handling and resolving certain employee complaints, company policies should require manag-ers to immediately report all complaints or incidents of discrimination, harassment or retaliation to human resources for fur-ther investigation. Employees should also be protected from third-party harassment and discrimination, which starts by in-cluding a specific policy prohibiting such conduct and notifying employees to report such incidents to their manager or the hu-man resources department. Other specific policies to consider implementing include prohibiting romantic or intimate relation-ships between individuals in a reporting relationship, prohibiting consumption of al-cohol during core work hours, and prohib-iting the use of non-prescription controlled substances during core work hours, work events, and work-sponsored events. With regard to alcohol consumption, employees should be encouraged to consume respon-sibly and alcohol-related misconduct should

Lisa Lamm Bachman, managing partner of the Minneapolis office of Foley & Mansfield, focuses her practice in employment law and litigation. In her 25 years of practice, Lisa has tried numerous cases before both bench and jury, and has handled more than a dozen ap-pellate proceedings. Lisa regularly consults with businesses and HR professionals to pro-vide legal advice on a variety of employment-related matters, including conducting training presentations for employees and managers concerning anti-harassment and anti-dis-crimination policies.

be addressed immediately. Companies are also encouraged to review reimbursement policies and limit or restrict budgets for re-imbursing alcohol-related events.

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