Pennsylvania Primary Agent - January 2019

JANUARY 2019 | PENNSYLVANIA

Q&A WITH

JOHN HOLLISTER IA&B CHAIRMAN OF THE BOARD

#METOO: ADDRESSING SEXUAL HARASSMENT EFFECTIVE GOAL-SETTING

WE’RE POSITIVE ABOUT THE FUTURE. ESPECIALLY YOURS. At Grinnell Mutual, we’re focused on growing long-term, trusted relationships.

Make your future with us — and make a difference for your customers.

Trust in Tomorrow.® Talk to us today. * Products available in Pennsylvania only

grinnellmutual.com “Trust in Tomorrow.” and “Grinnell Mutual” are registered trademarks of Grinnell Mutual Reinsurance Company. © Grinnell Mutual Reinsurance Company, 2019.

IN THIS

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ON THE COVER: Q&A WITH JOHN HOLLISTER

Hear from IA&B Chairman of the Board John Hollister on volunteering and member benefits.

14 #METOO: ADDRESSING SEXUAL HARASSMENT IN AGENCIES Learn what employers need to know about sexual harassment – from what it encompasses and who is liable, to what prevention strategies entail and how to respond to a complaint.

22 FIVE STEPS TO EFFECTIVE GOAL-SETTING

Learn the process for achieving your business (and personal) goals – and how to focus on that process to produce positive, sustainable results.

IN EVERY ISSUE 2 3 4 6 10 12 26 28 28 28

Chair of the Board’s Message Claire-ification Preventing Errors & Omissions Coverage Corner News & Notes IA&B Partners Pics & Posts Education Classified Ads Advertiser’s Index

JOIN US ON SOCIAL MEDIA: Facebook.com/IABforME LinkedIn.com/company/IA_and_B Twitter.com/IA_and_B About IA&B IA&B is the premier resource and champion for independent insurance agents in Pennsylvania, Maryland, and Delaware.

Periodical postage paid at Mechanicsburg, Pa. and at additional mailing offices.

Postmaster: Send address changes to Insurance Agents & Brokers, 5050 Ritter Road, Mechanicsburg, PA 17055.

Primary Agent (ISSN 1543-3110), Permit # 638-620, Issue # 2019-1, is published monthly by IA&B Service Group Inc., a subsidiary of IA&B.

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Copyright 2019. All rights reserved. No material may be reproduced in whole or in part without written consent of the publisher. The information in this publication is general in nature and not intended to serve as legal, accounting, financial, insurance, investment advisory or other professional advice as to any reader’s particular situation. Users are encouraged to consult with competent legal, financial, insurance, investment advisory and/or other professional advisors concerning specific matters before making any decisions. We disclaim any responsibility for any decisions or actions by readers. Statements of fact and opinion in Primary Agent are the responsibility of the authors alone and do not imply an opinion on the part of the officers or the members of IA&B. Participation in IA&B events, activities and/or publications is available on a non-discriminatory basis and does not reflect IA&B endorsement of the products and/or services.

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CHAIR OF THE BOARD’S MESSAGE

BOARD OF DIRECTORS INSURANCE AGENTS & BROKERS 5050 Ritter Road | Mechanicsburg, PA 17055 800-998-9644 | IABforME.com

YOUR MEMBERSHIP RESOLUTION

OFFICERS

Chair of the Board

John B. Hollister

H

Milford, PA

appy New Year! I’d like to start off 2019 with a challenge to you – a resolution of sorts – to take full advantage of your IA&B membership.

Vice Chair of the Board

Most members equate IA&B with its solid E&O program, its topnotch professional training, and likely its strong advocacy efforts.

But I’m here to tell you that those initiatives – while core to IA&B’s mission – are just the beginning.

Emory Stephen Burnett, CIC, ARM

I’ve been involved with this organization for over a decade – first on a Member Agent Panel input group and, for the past eight years, on the IA&B Board of Directors. During that time, I’ve seen just how extensive IA&B’s offerings are. At the same time, I’ve learned how underutilized many of them are.

Are you ready to take advantage of your member benefits? This issue of Primary Agent magazine is a great place to start. You’ll find original content written by three of IA&B’s many business partners: Education Consultant Kevin Amrhein, HR Consultant Karen DiGioia, and Behavioral Analyst Rich Molden. You can learn more about each of them – and how they’re involved with IA&B – in their bios.

From there, I encourage you to visit IABforME.com, read your weekly Agent Headlines e-newsletters, and engage with IA&B on social media.

I’m confident that you’ll come away with a newfound understanding of the value of your IA&B membership.

Craig S. Mader Crofton, MD

MEMBERS

Wilmington, DE

Richard F. Corroon, CPCU Wilmington, DE

Michael P. Ertel Sr.+ Columbia, MD

Len Gieseler, LUTCF Pottstown, PA

G. Greg Gunn, CIC* Lemoyne, PA

Bryan C. Hanes, JD Hagerstown, MD

Lisa A. Leach Goth, CIC New Bethlehem, PA

Shannon Lipniskis Indiana, PA

Elizabeth H. Martin, CIC Millersville, PA

Mark J. Monroe

West Chester, PA

Richard M. Rankin, CIC Lancaster, PA

D. Bradley Rosenkilde Jr. Hunt Valley, MD

Tara S. Silfies, CPCU

All the best and may 2019 be a successful one for you all.

Bethlehem, PA

Robert L. Smyrl Jr., CIC Hatfield, PA

All the best,

Glenn R. Strachan

Ft. Washington, Md

Lawrence A. Wilson, CIC, CPIA, CPCU, ARM** Newark, DE

John Hollister Chair of the Board

J. Marshall Wolff, CIC, CPCU Easton, PA

* Pa. IIABA National Director ** Del. IIABA National Director + Md. PIA National Director

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JANUARY 2019

Claire-ification IA&B Vice President - Advocacy Claire Pantaloni, CIC, CISR provided this month’s answer.

QUESTION: Are there names/descriptions we can use in place of Customer Service Representative that won’t affect the non-exempt status?

ANSWER: Sure. Exempt and non-exempt refers, of course, to the Fair Labor Standards Act (FLSA) and the Overtime Rule.

The good news: Fundamentally, the job title has absolutely no bearing on whether or not the person would be exempt or non-exempt. Only the primary duties and, when applicable, the salary basis and salary level tests would have a bearing on exempt status.

If you or your staff would prefer to modify the Customer Service Representative job title, you can use something else. Here are a few examples that we often see used for service positions (keeping in mind, again, that the same job title doesn't always describe the same position in all agencies): Account Manager, Account Executive, Customer Service Agent, Service Specialist. Obviously, this is not an exhaustive list, so you can consider other titles.

That is not to say that an auditor from the Department of Labor investigating your agency would not see some job titles with exempt status as possible red flags, but the auditor would conduct a full investigation and would not base his or her decisions merely on the job title.

Several important things to consider: • Beyond job titles, you should have job descriptions for all agency positions.

The job descriptions should reflect what people truly are doing in the agency (if you wrote them 15 years ago, you may want to revisit them; positions often change over time).

• Salaried and exempt are not synonymous terms:

consultation on the issue of overtime and how it applies to you.

• Finally, remember that the Overtime Rule is still in flux at the federal level (and also at the state level in Pennsylvania).

More changes are anticipated in the coming months.

You can find more information at IABforME.com/FLSA.

o If someone is hourly, that person is automatically non-exempt; but o If someone is salaried, that person is not necessarily exempt • In our experience, most compliance issues in agencies have nothing to do with the salary threshold that garnered so much attention in the last few years.

If you need help in understanding the ins and outs of the Overtime Rule: • Our website has a plethora of resources to refresh your take on the Rule and how it impacts insurance agencies

Ask our experts!

Have a question?

Rely on our team to find the answer.

Contact Claire: 800-998-9644, ext. 604 ClaireP@IABforME.com IABforME.com

• If you don’t have the time, Independent Agency Solutions (IAS), the consulting arm of IA&B, is available for one-on-one

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PREVENTING ERRORS & OMISSIONS

WHAT ARE YOUR 2019 E&O GOALS?

By Curt Pearsall, CPCU, AIAF, CPIA

I

t’s time to give serious thought to your goals and objectives for the new year. While this most certainly will include those goals dealing with premium volume, new business, income, and expenses, you also should consider setting of E&O goals – initiatives that will play a role in minimizing the potential for the agency to face an E&O claim.

Some initiatives to consider:

CLIENT EDUCATION Based on various industry prognosticators, this is going to grow

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significantly in importance over the next five to 10 years. In fact, many are predicting that this issue largely will determine which agencies succeed and which ones don’t. If your agency is not where it should be in this area, 2019 is a great time to ramp up your efforts.

STAFF EDUCATION Your clients are looking to your agency for knowledge and expertise. To provide that, the applicable staff need to possess that knowledge. Each staff member’s education objective should be customized to him or her.

JANUARY 2019

ADVISE CLIENTS OF OTHER COVERAGES This definitely serves as an education tool.

Why not include a list of other coverage to consider on your agency proposals?

And since it is not possible to list them all, add a statement such as, “other coverages to consider include but are not limited to the following.”

SECURING CUSTOMER SIGNATURES ON APPS This issue is key as most courts will hold the customer accountable for the contents of the application if his or her signature

is on that application. With electronic signature capabilities, there really is no excuse for not getting the insured signature on the app.

CONFIRMATION OF REJECTED COVERAGE Every agency should have a procedure that requires all rejected coverages to be memorialized in some written form of communication back to the client.

The development of a strong E&O culture takes time, so establish and accomplish E&O goals each year.

— Curt Pearsall

GETTING UPDATES AT RENEWAL TIME To “keep up” with your client’s changes, design a form that is sent automatically to each personal and commercial lines customer 60-90 days prior to the expiration of coverage. The goal is to secure an update of any changes in exposures so that insurance discussions can take place.

For many agencies, the development of a strong E&O culture takes time. By establishing and accomplishing E&O goals each year, your agency will be closer to achieving the desired level of E&O commitment.

urt Pearsall, CPCU, C AIAF, CPIA, penned this article. He is a consultant and national expert on errors and omissions for insurance agencies.

PUT YOUR WEBSITE TO WORK YOUR AGENCY website can go a long way to educating clients and, in turn, reducing your E&O risk.

ActiveAgency is the website platform designed by Forge3 specifically for insurance agencies. It includes innovate sales tools and features, including Clickable Coverage – interactive graphics that help customers learn about their unique risks and coverage options.

Zack Yurch 484-275-0983 zack.yurch@forge3.com

Pearsall Associates Inc. specializes in E&O risk management and loss control by working with agencies to develop a “culture of E&O prevention” by understanding areas of potential liability and improving the focus on E&O loss control. He also provides expert witness services to law firms for E&O claims and litigation.

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COVERAGE CORNER

HE’S CHARGING WHAT?!

Coverage (or Lack Thereof) for the Tree Guy

By Kevin C. Amrhein, CIC

D

addy, look! All the trees are falling down!”

It was Oct. 10, 2018 when my three-year old daughter shouted those words at me.

And she wasn’t wrong.

It was around 6 PM. A group of us were hunkered down at my house in Tallahassee, FL, and she was seeing the same thing the rest of us were. Hurricane Michael’s fury was just getting started. It was going to be a long night.

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By morning, the storm had taken almost half of our trees – mostly water oaks – completely out of the ground. Several others, while still technically standing, were torn in half, twisted into a mangled mess, or both. Luckily, none fell onto our house, fence, driveway, or shed. We were safe.

Don’t get me wrong. I’m not saying I’m incapable of dragging branches to the curb. But if you care at all about my well-being or those around me, let’s

JANUARY 2019

just say you don’t want me anywhere near a chainsaw.

It was time to (1) find someone to clear the debris for us and (2) figure out how to pay for it.

Our homeowners’ policy – an ISO HO-3 with no fancy enhancements – was no help at all. And while it’s true that we have a large Windstorm deductible (3% of the value of the dwelling), this had nothing to do with why we got zilch from our policy to

help with the high cost of removing the downed trees.

The coverage problem here is found in the Additional Coverage – Debris Removal – item b. In short, we had no coverage because none of the fallen trees (1) damaged a covered structure, (2) blocked a driveway, thus preventing a vehicle from entering or leaving the “residence premises,” or (3) blocked a ramp or other fixture designed to assist a handicapped person in entering or leaving the dwelling building.

(Don’t get me wrong, I’m glad no trees landed on our stuff. But at least a few bucks might have been nice, right?

Fiddlesticks.)

Let’s say that one or more trees did fall onto a covered structure (e.g. house, fence, shed). While that stinks, the silver lining is that we’ve now satisfied one of the necessary triggers for coverage.

The other trigger for coverage is the Peril Insured Against. Specifically, if the tree is your tree, it must be felled

by Windstorm (assuming the carrier or insured hasn’t specifically chosen to exclude it) or Hail, or Weight of Ice, Snow or Sleet. This is notable as some trees may fare just fine in gusty winds but eventually fall due to a cause that is not one of the listed Perils, such as oversaturation from torrential rain.

If the tree is a neighbor’s tree, it must be felled by a Peril Insured Against under Coverage C – Personal Property.

Satisfying both triggers is essential.

However, even if this is achieved, the dollars available for removal are limited to no more than $500 per tree and will not exceed $1,000 total in any one loss.

And with the overwhelming demand for

removal – coupled with the number of debris haulers who came into town from hundreds of miles away for the work – those limited dollars don’t make the dent in the bill that they normally would.

It’s important to note that these limitations apply only to the cost of paying to remove the trees from the “residence premises” – such as hauling them to the dump. When a tree falls onto and damages a covered structure, any costs associated with removing it from the structure and setting it aside/laying it down in the yard should be included in the repair cost.

That’s all for now. Until the next round … cheers!

Kevin C Amrhein, CIC, is IA&B‘s newest education consultant. He works with our CISR and CIC programs, as well as our special topic seminars and live webinars.

Catch him at one of our upcoming professional training offerings: IABforME.com/education.

NEW YEAR, NEW COVERAGES GET UP to speed on the latest coverage trends. Our 2019 professional training schedule includes all new special topic seminars: Coverage for Uber, AirBnB & Other Gig Economy Trends April 16 | Newark, DE July 9 | Mechanicsburg, PA Aug. 13 | Philadelphia, PA Aug. 22 | Pittsburgh, PA EPL & D&O: Insurance Protection for Leadership April 2 | Philadelphia, PA April 3 | Baltimore, MD May 14 | Pittsburgh, PA May 15 | Mechanicsburg, PA Oct. 17 | Newark, DE Plus, coming in fall 2019: Insuring Contractors with Jerry Milton Emerging Risks: Insuring Cannabis, Autonomous Vehicles, Drones & More Register today.

800-998-9644, option 1 | IABforME.com/education

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Q&A WITH IA&B CHAIRMAN

JOHN HOLLISTER

J

ohn Hollister is a principal with Sheeley Insurance Agency in Milford, PA and chairman of the IA&B Service Group. His involvement with IA&B began in 2009 when he joined a regional Member Agent Panel input group. In 2011, he was recruited for the board of directors, where he has continued to serve. For the past four years, he has held leadership roles – originally with the Pennsylvania association and now with the IA&B Service Group, the management arm of the three IA&B state associations. His term on the board ends later this year.

Why did you enter the insurance industry? And why did you stay?

I needed a “real job” and had some family members who were very successful in the business. They encouraged me to try it, so I started my career selling life insurance with Prudential in 1996.

I never gave much thought as to why I stayed in the industry until recently. Two clients who purchased life insurance from me years ago passed away at relatively young ages. There was satisfaction in knowing that their families were taken care of financially.

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What’s your favorite part of working in this industry?

Hands down, it’s the people – customers and peers. I’ve met some incredible people over the years that I never would have known if it weren’t for this industry.

What’s the biggest change you’ve seen in the independent agency system during your career?

Technology, for sure! We rely on it so heavily. Who would have thought that we’d have electronic signature, the ability to be paperless, and robust management systems? It’s pretty incredible when you think about how far we’ve come, and I’m excited to see where our industry goes in the next five to 10 years.

What do you see as the biggest challenge(s) facing independent agencies?

Staying relevant. Independent agents need to be entrepreneurs today more than ever. Competition is coming at us from all sides. Direct writers, captives, they all want a piece of the pie.

JANUARY 2019

You represented the IA&B Board of Directors at the last two IA&B Futures Conferences for young insurance professionals. What was your biggest takeaway from those events?

The amount of young talent that is working in our industry. These young professionals are movers and shakers.

They’re extremely bright and think outside the box. Agency principals need to begin discerning how to get these young people involved in agency perpetuation. If not, these young professional will find someone else who will.

You know more about IA&B than the average member – or just about any member, for that matter! What do you wish more agents knew about the association?

It really is a member-centered association.

Everything IA&B does is for the betterment of independent agencies. It’s so much more than education and E&O. I would encourage everyone to just take a few minutes and review all the programs that IA&B has to offer. [Editor’s note: Follow John’s advice, and resolve to

better utilize IA&B in the new year. See sidebar for suggestions.]

How has your time with IA&B compared to your volunteer experiences with other organizations?

There’s no comparison at all. My time with IA&B is by far the best experience I’ve ever had. There are great people, and the board meetings are run like no other. I only wish I could remain on the board for another 10 years! I will miss the camaraderie greatly when I leave the board.

You’ve given so much to IA&B over the years. What have you taken away in return?

I’ve served with many talented and professional people, but the biggest return for me has been the life-long friendships that I’ve formed.

What advice would you give to a member agent who is considering – or just starting in a volunteer role with IA&B? Trust me: You’ll get more out of your experience than what you put in to it!

Take the time and invest. Serve where you’re able, and you’ll be a better independent agent.

GET INVOLVED WITH IA&B IA&B RELIES heavily on agent input to meet members’ wants, needs, and expectations. Find a volunteer opportunity that best suits you, whether it’s on an input group or government relations committee, the board of directors or a grassroots action event. It’s a great way to expand your network and give back to your profession.

Contact IA&B Vice President – Membership Tim Wonder 800-998-9644, ext. 351 TimW@IABforME.com

Happy New Year MAKE THE MOST OF YOUR IA&B MEMBERSHIP WITH A RESOLUTION TO CHECK OUT AT LEAST ONE OF THESE MEMBER SERVICES.

Call Claire or Don. They know everything. (And if they don’t, they’ll research until they find out!)

Attend an IA&B Event Learn & network with fellow agents and company reps in a relaxed atmosphere.

It’s January. Have any resolutions – professional or personal – that you’re willing to share?

Find your (Carrier) Match

From a personal standpoint, I’d like to complete my first century [100-mile] bicycle ride in the fall of 2019. That’s my motivator for now!

Sign up for a Class or Webinar

On our exclusive online platform

• Get your CE • Earn a Designation • Keep up on the latest trends

800-998-9644 | IABforME.com

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NEWS & NOTES

PENNDOT CLARIFIES PRODUCERS’ ROLE IN AUTO INSURANCE NOTIFICATION

IMPACTS OF SOUTH CAROLINA CYBERSECURITY LAW

The Pennsylvania Insurance Department receives thousands of complaints each year from drivers who switched auto insurers and then received warning letters from PennDOT.

Some agencies that hold a South Carolina non-resident license now need to comply with the state’s Insurance Data Security Act. As of Jan. 1, 2019, non-resident agencies must report within 72 hours data breaches that affect at least 250 South Carolina records. By July, all agencies impacted by the law must have a written data security plan in place.

At issue is that Pennsylvania law requires an auto insurer to notify PennDOT when it cancels a driver’s insurance policy, but it does not require that driver’s new insurer to notify PennDOT about the newly issued policy. As a result, drivers often receive a letter warning that PennDOT will suspend their registration if they don’t provide proof of insurance.

To alleviate the discrepancy, PennDOT asks that carriers notify the department about newly issued auto insurance policies. Meanwhile, producers should continue educating their customers about the requirement in hopes of alleviating confusion.

The Insurance Department offers a brochure for producers to distribute to their customers with a summary of the process, an explanation of PennDOT “proof” letters, and options for updating their proof of insurance with PennDOT. Visit the Insurance Department’s website to access the brochure. insurance.pa.gov/coverage/auto (See “Resources”)

The following are exempt from the requirement: • Agencies with nine or fewer staff people (including independent contractors) • Licensed employees of a licensed agency that has a written data security plan in place • Licensed agencies that have an information security program that complies with the Health insurance Portability and Accountability Act (HIPAA) and provide certification to that effect South Carolina is the first state to adopt this law – the National Association of Insurance Commissioners’ Insurance Data Security Model Law. The model law underwent a series of revisions to make it less onerous thanks to insurance industry advocacy efforts (including our own). While considerably improved from prior drafts, the adopted model law retains several contentious provisions.

If your agency is impacted, review the dedicated page on our South Carolina counterpart’s website and monitor it for compliance updates.

IIABSC.com/Resources/Pages/CyberS

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JANUARY 2019

WELCOME NEW MEMBERS & PARTNERS MEMBERS ENGLE-HAMBRIGHT & DAVIES INC. Lancaster, PA SKYLINE SERVICES INC. Little Meadows, PA ONE STOP INSURANCE AGENCY LLC Silver Spring, MD NEWMAN INSURANCE ASSOCIATES INC. Frederick, MD PARTNER NATIONWIDE INSURANCE COMPANY Harleysville, PA

Learn more about membership by contacting IA&B Vice President – Membership Tim Wonder.

800-998-9644, ext. 351 TimW@IABforME.com IABforME.com/membership

THE FUTURE IS UNPREDICTABLE. OUR SERVICE NEVER IS. At Grinnell Mutual, we’ll be there for your customers — whether they’re looking for coverage tailored to their business or insurance for their home and auto.

To find out more about what we can do for you and your customers, contact our Pennsylvania representative, Harry Larkin, at harry.larkin@grinnellmutual.com.

* Products available in Pennsylvania only

grinnellmutual.com “Trust in Tomorrow.” and “Grinnell Mutual” are registered trademarks of Grinnell Mutual Reinsurance Company. © Grinnell Mutual Reinsurance Company, 2019.

OUR FEATURED PLATINUM PARTNER Insurance Agents & Brokers proudly recognizes Erie Insurance as one of its Platinum Partners.

IA&B Platinum Partners dedicate the highest level of sponsorship to our organization.

It’s the rare individual who is motivated by a genuine desire to help others. And it’s the rare company that puts that principle into practice.

At Erie Insurance, we’ve been helping people make things right since 1925, working side-by-side with the best independent agents in the business.

Our agents and employees are energized by a clear sense of purpose, performing to the best of their ability, because they know the work they do benefits millions of customers’ families and businesses. It’s part of being Above all in SERVICE® and it’s why we’re so committed to the independent ERIE agents who live and work in the communities they serve.

On the strength of these relationships, Erie Insurance has risen to become one of the nation’s most respected property/casualty and life insurers.

CHIEF EXECUTIVE OFFICER Timothy G. NeCastro, President and CEO CORPORATE HEADQUARTERS Erie, PA A.M. BEST RATING A+ Superior WEBSITE erieinsurance.com

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Insurance Agents and Brokers proudly recognizes Erie Insurance as one of its Platinum Partners.

IA&B PlatinumPartners dedicate the highest level of sponsorship to our organization.Today, we’re a FORTUNE 500® company operating in 12 states and the District of Columbia. ERIE has more than 5 million policies in force. We’re the 15th largest property/casualty insurer in the United States, based on total lines net premiums written, and the 10th largest home insurer and 12th largest auto insurer based on direct premiums written. A.M. Best Company rates Erie Insurance A+ Superior.

Erie Insurance Group is a Barron’s 500 company and has been recognized by Confirmit with an Achievement in Customer Excellence Award in the

JANUARY 2019

IABforME.com/Partners2019

THANK YOU

Voice of the Customer category for claims service.

Erie Insurance’s founding principle is: “To provide our policyholders with as near perfect protection, as near perfect service as is humanly possible, and to do so at the lowest possible cost.” That same principle guides us today.

Thanks to these partners for supporting the independent agent network.

We still adhere to disciplined underwriting, fair pricing and a prudent investment philosophy.

We still practice the Golden Rule–treating others as we want to be treated.

PLATINUM PARTNERS

We still thrive on the ERIE family spirit, employees and agents working together as a team for the good of our customers and the communities we serve.

At our core, we still believe the truth in our founder H.O. Hirt’s words:

Success in business is not a matter of tricks or gimmicks… it is just a matter of simple common sense, mixed with just plain decency.

— H.O. Hirt

ACUITY Agency Network Exchange LLC BBSI Donegal Insurance Group Erie Insurance Group Farmers Mutual Fire Insurance Company of Marble Insurance Agents & Brokers Service Group Millers Mutual Group Penn National Insurance Plymouth Rock Assurance The Main Street America Group

BECOME A 2019 PARTNER TODAY Interested in becoming a partner?

Please don’t hesitate to contact us.

Jess McWilliams Education Senior Director 800-998-9644, ext. 503 JessicaM@IABforME.com

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#METOO:

ADDRESSING SEXUAL HARASSMENT IN AGENCIES

By Karen DiGioia

Follow along as our HR consultant, Karen DiGioia, explains what employers need to know about sexual harassment – from what it encompasses and who is liable, to what prevention strategies entail and how to respond to a complaint.

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S

exual harassment. #MeToo. It’s been all over the news for more than a year. It started in October 2017 with Harvey Weinstein. Soon after, the flood gates opened. Ben Affleck. Oliver Stone. Kevin Spacey. Dustin Hoffman. Louis C.K. George Takei. Al Franken. Morgan Freeman. Charlie Rose. Matt Lauer. Garrison Keillor. Mario Batali. Chris Matthews. Asia Argento. The list goes on and on.

If I wanted to avoid any serious discussion on the topic, I could easily achieve my word quota just by listing the names of those famous people we’ve come to see in a different light over the past year. But in the end, that would only tell you what you already know. That sexual harassment is a serious problem, and it’s more pervasive than we ever realized – or, at least, more pervasive than we wanted to admit.

Liability lies with the employer in any case where harassment resulted in a significant change in employment status for the victim.

So, let’s spend the rest of our time gaining a better understanding of sexual harassment: What is it and what can, and should, YOU do to eliminate it in the workplace.

WHAT IS SEXUAL HARASSMENT? Maybe you think of sexual harassment like United States Supreme Court Justice Potter Stewart thought of obscenity –

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JANUARY 2019

— Karen DiGioia

“I know it when I see it.” This phrase is one of the best known in the history of the U. S. Supreme Court, but it’s probably not the best approach to defining sexual harassment in the workplace. To help us move beyond a vague, I-know-it-when-I-see-it definition of sexual harassment, let’s start with Merriam-Webster.

The term sexual harassment first appeared in the MerriamWebster dictionary in 1971, when it was defined as, “uninvited and unwelcome verbal or physical behavior of a sexual nature especially by a person in authority toward a subordinate.” That’s a good start but let’s keep going.

What about the Equal Employment Opportunity Commission or EEOC? As the governmental entity responsible for enforcing federal laws related to employment, including sexual harassment, it’s critical that we understand what the EEOC has to say on the topic. The following is taken directly from EEOC.gov site. Since it’s a bit lengthy, I’ve bolded the most critical language in the EEOC’s definition:

• Hostile environment harassment – harassment that creates a hostile workplace that interferes with performance.

Keep in mind that the victim doesn’t have to be the subject of the harassment – it can be anyone who was affected by the harassment. This means it can be someone who witnessed the harassment. Also, sexual harassment does not require economic impact to or termination of the victim’s employment.

WHO IS LIABLE FOR SEXUAL HARASSMENT? Bottom line: If you are a covered employer (more on that in a moment), the answer is you (or your agency). Liability lies with the employer in any case where harassment resulted in a significant change in employment status for the victim.

That means hiring, firing, transfer, promotion, demotion, compensation change, transfer to another office, etc. Even if the harassment didn’t have such a result, the employer can still have liability, but in this case, the liability can be limited by two things. First, proof that the employer acted to prevent and

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

FIND HR HELP

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

MANAGING EMPLOYEES requires more time than most agency principals have. That’s where your IA&B member benefits can help.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Under the EEOC, there are two kinds of sexual harassment, and both are against the law:

continued on page 18

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• Quid pro quo harassment – unwelcome sexual advances and requests for sexual favors

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continued from page 17

promptly correct any harassment and, second, failure on the part of the victim to either prevent the harassment or utilize the opportunity to take action regarding the harassment through avenues made available by the employer.

turning the page. Not so fast. Most states have laws in place with thresholds below 15, and, whether you are or are not covered, isn’t elimination of sexual harassment in the workplace always the right thing to do? I thought so. Read on….

So, before we talk about what you, as an employer, should do, let’s take a short quiz. Which of the following qualifies as sexual harassment?

STEP 1: HAVE A POLICY IN PLACE AND COMMUNICATE IT

A. A supervisor directly tells or implies to an employee that the employee must sleep with her or he will be fired.

B. An employee makes demeaning comments about female clients to his coworkers.

C. An employee makes demeaning comments about male clients to her coworkers.

D. An office worker is made uncomfortable by agents who regularly tell sexually oriented jokes.

STEP 2: HAVE A GRIEVANCE OR COMPLAINT PROCESS IN PLACE AND COMMUNICATE IT

G. An employee's coworkers refer to her by sexist or demeaning terms.

Ensure that you have a grievance process in place that gives employees several options of how to bring a complaint forward within your agency. Don’t require them to go to their immediate supervisor – their supervisor might be the harasser. Provide employees with the option of speaking with any member of agency management. Also, encourage your employees to come forward before the issue becomes severe or pervasive. Finally, you want to ensure employees that you will protect their confidentiality to whatever extent is possible during the course of any related investigation.

H. One or more employees post sexually explicit jokes on the office intranet bulletin board.

STEP 3: BE READY TO INVESTIGATE WHEN ANY EMPLOYEE COMES FORWARD

I. An employee posts sexually oriented signs in his/her office.

Take immediate action if an employee comes forward with a complaint. Conduct a prompt, in-depth, and unbiased investigation. Interview the employee who brought the complaint forward, the alleged harasser, and anyone else who may have relevant information about the situation or occurrence.

If you’re not sure what you should be asking, visit IABforME. com/harassment_investigation for recommendations directly from the EEOC. Also, don’t neglect to take steps to ensure that the harassment doesn’t continue. Limit contact between the accuser and the accused in any way you can.

E. An employee is made uncomfortable by agents who regularly tell sexually oriented jokes to each other but in her hearing.

F. An employee pinches, fondles, or touches a coworker against his/her will.

J. An employee sends emails to coworkers that contain suggestive or sexually explicit language and jokes.

If you answered, “K. All the above” (I know, that wasn’t one of the options), give yourself a round of applause!

WHAT DO YOU, AS AN EMPLOYER, NEED TO DO? Now that we know what sexual harassment is and can identify it in its many forms, what should we, as employers, do?

From a technical perspective, you are covered under Title VII of the Civil Rights Act of 1964, the Act under which sexual harassment falls, if you have 15 or more employees. Many of you reading this article may have just taken a big sigh of relief.

If you have few than 15 employees, you may be thinking “this doesn’t apply to me” and be giving serious consideration to

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Establish, distribute, and enforce a written policy that prohibits all types of harassment, including sexual harassment. Don’t leave it to the written policy to get the message across. Discuss it at staff meetings. Clearly communicate to your employees that harassment is unacceptable and will not be tolerated. Also make it clear that the agency will not tolerate retaliation against an employee who comes forward with a claim of harassment.

Once you’ve completed your investigation, you must make a determination and then take swift and appropriate action based on the findings. Easy enough, right? But what if you’ve been presented with conflicting versions of the “facts”? If that happens, you’re going to have to make some determinations

JANUARY 2019

continued on page 20

continued from page 18

about the credibility of the versions and use your judgment to come to a conclusion. Some of the things to consider include:

Model appropriate behavior, and don’t indirectly support inappropriate behavior through silence or what might feel like a harmless chuckle at an inappropriate joke.

— Karen DiGioia

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• Which version makes the most sense and is the most believable?

• What motivation, if any, was there for one or more of those you spoke with to lie or twist the truth?

• Is there any past record of similar behavior that should be considered?

• What was the manner of the alleged harasser and the alleged victim? Who seemed to be telling the truth and who seemed to be lying?

• For which version, if any, do you have corroborating information? This may include information provided by another individual or physical evidence.

Once you’ve considered all the facts and made your decision, if you determine that harassment has occurred, any disciplinary

JANUARY 2019

action you take should be done quickly and be aligned with the severity of the offense. Action could be anything from oral or written warning to termination of employment, depending on the seriousness of the behavior.

Don’t forget to take action to undo any negative impact experienced by the victim, whenever possible. If, for example, the harasser gave negative feedback in a performance appraisal simply because the victim turned down their advances, the negative reviews should be removed from the employee file.

WHAT ELSE CAN YOU DO? Other than having a harassment policy and grievance process in place and clearly communicated to employees and taking action if and when an employee comes forward with a complaint, what else can you do to eliminate sexual harassment from your workplace? The following list provides you with some additional things to consider:

accusers came forward and, to a great degree, for the first time ever, were heard, believed and taken seriously, it truly opened the flood gates for so many others to come forward – to come forward and say #MeToo with the expectation that they too would be heard, believed, and taken seriously. As an employer, do all that you can to make sure your agency is an environment where, if harassment occurs, your employees know that they can come forward, be heard, be believed, and be taken seriously.

As always, if you have questions or need some HR assistance, as part of your IA&B member benefits, support is only a phone call or email away. I can be reach at 610-779-3870 or karen@mostellerhr.com.

Karen H. DiGioia provided this article on behalf of Mosteller & Associates, IA&B’s contracted human resources consulting firm.

• Address harassment – even when no one complains.

• Have a policy that limits employees from working in the same supervisory chain of command of someone with whom they have a close, personal relationship – a consensual relationship can change to a nonconsensual one very quickly.

• Make sure your managers and supervisors understand their responsibilities relevant to harassment.

• Sponsor a harassment training for all employees and managers annually.

• Ensure that more than one manager or supervisor is involved with all employee-action decisions including the decision to hire, fire, promote, demote, or change compensation arrangements.

• Screen applicants to look for a history of harassment.

• Create an environment built on respect. Model appropriate behavior, and don’t indirectly support inappropriate behavior through silence or what might feel like a harmless chuckle at an inappropriate joke.

• Recognize that business and alcohol (especially in significant quantities) don’t mix, and keep this in mind when developing a policy regarding alcohol at company-sponsored events.

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In closing, I’d like to share my thoughts on what we’ve all experienced since October 2017. When Harvey Weinstein’s

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TEAM TIPS

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JANUARY 2019

FIVE STEPS TO EFFECTIVE GOAL-SETTING The “SMART” Way to Eat an Elephant

By Rich Molden

H

ere we are at the start of another new year. A fresh start. And like so many years before, we make resolutions with the best of intentions of keeping them and making a lasting change for the better, only to backslide and resort to the same behaviors we were so desperately trying to change. Another year goes by, and we have not achieved what we had hoped. This self-fulfilling prophecy promotes negative self-talk that further reinforces a self-image of failure. The resulting disappointment only serves as another nail in the coffin of low self-esteem.

Goals are dreams, but with a yardstick and a calendar.”

— Rich Molden

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TEAM TIPS

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For many, setting goals is a random, emotional process. What they tend to do is make a goal in their head and then expect it to somehow magically happen. They do nothing to change the “process” that keeps delivering the same disappointing results time and time again. In fact, most people confuse goal setting with dreams, wishes, and wants.

Goals are dreams, but with a yardstick and a calendar.

STEP 1: MAKE IT SPECIFIC

In order for you to develop the business results you seek, or on a higher level, the life you would like to lead, you need to not only set goals and fulfill your commitments to those goals but also change the habits – or the “process” – that up until now has impeded you from achieving what you really want.

STEP 3: MAKE IT ACHIEVABLE

Let’s focus on the process of goal setting and how setting goals for your business expectations will create motivation and ultimately greater confidence. My intent with this article is to provide you with “guardrails” so that you don’t crash and burn once more in the flames of failure.

OK, that may be a bit overly dramatic, but if you follow the simple process laid out here, I assure you that you’ll find a sense of achievement and be well on your way to accomplishing the very things you set out to do.

The simple process is to commit to a goal and make it SMART: Specific

STEP 2: MAKE IT MEASURABLE How precisely will you know when you’ve reached your goal? What are the benchmarks to getting there?

Here you run a reality check? Are you prepared to make the commitment your goal will require? Are you willing to commit more time to prospecting, cold calling, or disciplining yourself to ask for referrals each time it is appropriate, and what habit changes will this require? If yes, proceed to Step 4. If not, ask yourself is there a more achievable target that you are willing to work for and then go back to Steps 1 and 2. Be specific.

STEP 4: MAKE IT RELEVANT Is it truly relevant to you? Do you truly desire that which you seek? You must really want the changes that you are looking for with all your heart in order to fully commit to seeing it through and finding success on the other end. This is no small step here. Too many people find themselves climbing the ladder of success only to find it’s leaning against the wrong wall!

Measurable

STEP 5: MAKE IT TIME-FRAMED

Achievable

What’s a reasonable date for achieving your goal? It’s a fine line between being so ambitious that you never expect to succeed and aiming so low you lack incentive to try. Bear in mind, you can modify your timetable as you make progress.

Relevant Time-Framed Say your goal is to increase sales. Here’s how to make it SMART….

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To “increase sales” is vague. To “increase my customer base by 15% and the average value of each account by 5%” is specific. What exactly must you do to make that happen?

JANUARY 2019

Bonus: To optimize your chances of succeeding, write down your goals and keep them in front of you – at your workstation and at home. Keep a copy in your wallet or handbag. Read them often, at a minimum each day. It’s a psychological truism that we become what we think about most of the time! Be sure to chart your progress.

I encourage you to focus on the process rather than to get caught up with the outcome. Remember the saying, “What’s the best way to eat an elephant?

One bite at a time.” Focusing on doubling your business (outcome) can appear at times as an elephant. On the other hand, making 10 more phone calls a day, setting five more appointments per week, and spending 15 minutes each morning on “goal time” (process) are small manageable bites that have an immense impact on the desired outcome. I’ve found that setting process goals, as opposed to strictly outcome goals, produces positive and more sustainable results.

Don’t wait. Start the process today.

Follow these steps. Congratulations, you’re on your way to achieving your goals.

Rich Molden is a Certified Professional Behavioral Analyst and the founder of Performance Development Group, experts in employee and customer engagement. Mr. Molden has been a strategic partner of IA&B and its member agencies for over 20 years, providing assessment tools and expertise dedicated to identifying, hiring, developing, and retaining exceptional performers. Learn more by visiting HireStrength.com.

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PICS & POSTS

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