After Harassment, Consider Counseling Services Without Deductibles

As reports of sexual harassment scandals break, employers are taking a closer look at their procedures and policies. There may be a way for employers to supplement current HR efforts on behalf of victims, according to David McFarlane, a partner with the law firm Crowell & Moring in Los Angeles.

"It's no surprise that harassment is underreported," McFarlane said. The Equal Employment Opportunity Commission notes that only 1 in 4 workplace harassment victims reports their abuse to HR, he pointed out. "As a result, problems continue to fester, grow and multiply. Because the victim is usually targeted by someone in a position of power, the individual is often uncomfortable or unwilling to raise the subject with HR for fear of retaliation."

McFarlane recommends that companies provide access to an independent third-party advocate who would be available to employees—at no cost to them—under a stand-alone employee benefits plan subject to the Employee Retirement Income Security Act (ERISA). The plan would also provide funds for certain health and welfare benefits, such as counseling, therapy and related services.

"There are limited reporting obligations under ERISA for this type of plan, which we refer to as the workplace harassment prevention and protection plan, or WHiPP plan for short," he told SHRM Online.

"The plan is designed to be flexible and customizable to meet the needs of any employer," he said. "Having a plan administered under ERISA's stringent fiduciary duty requirements helps address employee concerns over whether the employer will provide them with a real path for dealing with workplace harassment that is free from corporate interference or confirmation." Fiduciaries are legally bound to place plan participants' best interests above all other interests, including the employer's.

The employer-funded WHiPP, he explained, can:

• Be administered by an outside party and provide an advocate on behalf of the employee to raise and resolve complaints, which can help to avoid litigation and the inevitable public relations fallout.
  

• Create a safe and confidential method of raising harassment issues with employers, and provide a clearer path to a resolution and cessation of harassing behavior, resulting in a more productive work environment.
  

McFarlane advocates this new approach because the growing reports of sexual harassment at work have "made glaringly apparent the limitations in the current system for identifying, preventing and remedying workplace harassment." Having a prevention and protection plan in place not only provides necessary counseling and advocacy services for victims, he noted, but signals that the employer has a zero-tolerance policy toward harassment.

The plan is being launched by a small number of employers, who for confidentiality reasons McFarlane didn't identify. "It has generated considerable interest among large and small, public and private entities eager to address this issue," he said.

[SHRM members-only tools and sample policies: Nondiscrimination/Antiharassment Policy and Complaint Procedure]

Services Without Deductibles

"In its most basic form, the WHiPP acts as a funding mechanism for an employee to seek his or her own health, therapy and psychological services, without fear of running up against deductibles or other limitations that often exist under health plans and EAPs [employee assistance programs]," McFarlane said.

"Health plans and EAPs are just not set up to deal with the issues that arise due to workplace harassment in a comprehensive manner," he added. The prevention and protection approach "creates a single plan that an employee facing workplace harassment can turn to for support and assistance."

As long as the WHiPP is not set up as a health plan that provides "significant medical care and treatment" benefits, it should be able to provide counseling and therapy services alongside a high-deductible health plan (HDHP) without disqualifying participants from eligibility to contribute to a health savings account (HSA), McFarlane explained.

"The plan, as we have structured it, should not be in conflict with the IRS requirements for qualification of an employer-sponsored HDHP. In addition, since the WHiPP reimburses participants for actual expenses incurred with respect to such things as seeking counseling or other treatments to ameliorate the effects of workplace harassment, use of HSA dollars by an employee should not be necessary," he said.

Mind the Culture

A prevention and protection plan and other formal harassment-response and victim-support programs are intriguing ideas to explore, but employers should also make sure that their corporate culture is on the right track.

Sidney Lewis, a labor and employment practice attorney at New Orleans law firm Jones Walker, advised, "You've got to have a culture where people know that if this is going on, they need to make a report and will face absolutely no retaliation for it. It's making sure all employees understand this."

Periodically, Lewis recommends having an attorney visit the workplace to deliver a "scared straight" talk to company supervisors. It's a presentation of recent labor law cases and their consequences, and Lewis said it earned its "scared straight" nickname from clients' responses.

Related SHRM Article:

Consider Face-to-Face Training as EEOC Makes Filing Harassment Complaints Easier, SHRM Online Technology, November 2017

Sexual Misconduct Happens to Men, Too, SHRM Online Behavioral Competencies, December 2017

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