DAR File No. 31208

Human Resource Management, Administration

R477-15

Unlawful Harassment Policy and Procedure

NOTICE OF PROPOSED RULE

DAR File No.: 31208
Filed: 04/25/2008, 01:29
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

Amendments update language with present terminology, remove redundancies, and reorder and outline information for better clarity concerning harassment and discrimination. Nonsubstantive changes are also made to comply with rulemaking style.

Summary of the rule or change:

Rule R477-15 is renamed Workforce Harassment Policy and Discrimination and the term "workforce harassment" replaces "unlawful harassment" where appropriate in the rule. Subsections R477-15-1(2), R477-15-2(1), and R477-15-2(3) are removed as they are redundant. In the new Subsection R477-15-2(2), the option of corrective action is removed from consequences for harassment and additional criteria are outlined. Subsections R477-15-2(5) and (6) and R477-15-3(2)(a) through (i) are removed because they are unnecessary. In Section R477-15-4, language is added to direct management in handling harassment complaints. In Subsection R477-15-4(2)(b) the word "verbal" is replaced by "oral". In Section R477-15-5 language is replaced with more succinct procedures for management to follow for investigative procedures. In Section R477-15-6 record keeping standards and procedures are revised and language subsections are reordered for clarity. Subsections R477-15-6(2) and R477-15-6(6) are removed because they are unnecessary.

State statutory or constitutional authorization for this rule:

Sections 67-19-6 and 67-19-18, and Governor's Executive Order on Prohibiting Unlawful Harassment, dated 12/13/2006

Anticipated cost or savings to:

the state budget:

The changes to this rule are administrative and present no direct impact to state budgets.

local governments:

This rule only affects the executive branch of state government and will have no impact on local governments.

small businesses and persons other than businesses:

This rule only affects the executive branch of state government and will have no impact on other persons.

Compliance costs for affected persons:

This rule only affects agencies of the executive branch of state government.

Comments by the department head on the fiscal impact the rule may have on businesses:

Rules published by the Department of Human Resource Management (DHRM) have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. This act limits the provisions of career service and these rules to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or savings on to business through fees. However, it is anticipated that the minimal costs associated with these changes will be absorbed by agency budgets and will have no effect on business. Jeff Herring, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Resource Management
Administration
Room 2120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Tina Sweet or J.J. Acker at the above address, by phone at 801-538-3761 or 801-537-9096, by FAX at 801-538-3081 or 801-538-3081, or by Internet E-mail at tinasweet@utah.gov or jacker@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/16/2008

This rule may become effective on:

06/23/2008

Authorized by:

Jeff Herring, Executive Director

R477. Human Resource Management, Administration.

R477-15. [Unlawful]Workforce Harassment Policy and Procedure.

R477-15-1. Purpose.

It is the State of Utah's policy to[:

(1) ] provide all employees a working environment that is free from unlawful discrimination and harassment based on race, religion, national origin, color, sex, age, disability, or protected activity under state and federal law.[the anti-discrimination statute; and

(2) comply with state and federal laws regarding discrimination based on unlawful harassment.]

 

R477-15-2. Policy.

[(1) Unlawful harassment means discriminatory treatment based on race, religion, national origin, color, sex, age, protected activity or disability. Discrimination based on unlawful harassment will not be tolerated. Violators shall be subject to corrective action or disciplined and may be referred for criminal prosecution. Discipline may include termination of employment.

]([2]1) [Unlawful]Workplace harassment includes the following subtypes:

(a) behavior or conduct in violation of [Subs]Section R477-15-[2(1)]1 that is unwelcome, pervasive, demeaning, ridiculing, derisive, or coercive, and results in a hostile, offensive, or intimidating work environment;

(b) behavior or conduct in violation of [Subs]Section R477-15-[2(1)]1 that results in a tangible employment action being taken against the harassed employee.

[(3) The imposition of corrective action and discipline is governed by Section R477-10-2 and Rule R477-11.

]([4]2) An employee shall be subject to [corrective action or ]discipline up to and including termination of employment for [unlawful]workplace harassment towards another employee[, even if that harassment occurs outside of scheduled work time or work location,] provided that the harassment meets the requirements of [Subs]Section R477-15-[2(2)]1[.], even if:

(a) the harassment is not sufficiently severe to warrant a finding of unlawful harassment, or

(b) the harassment occurs outside of scheduled work time or work location.

(3) Once a complaint has been filed, the accused may not communicate with the complainant regarding allegations of harassment.[

(5) Individuals affected by alleged unlawful harassment may, but shall not be required to, confront the accused harasser before filing a complaint.

(6) Once a complaint has been filed, the accused shall not communicate with the complainant regarding allegations of harassment.]

 

R477-15-3. Retaliation.

(1) No person may retaliate against any employee who opposes a practice forbidden under this policy, or has filed a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this policy, or is otherwise engaged in protected activity.

(2) Any act of retaliation toward the complainant, witnesses or others involved in the investigation shall be subject to [corrective action or ]disciplinary action.[ Prohibited actions include:

(a) open hostility to complainant, participant or others involved;

(b) exclusion or ostracism of the complainant, participant or others;

(c) creation of or the continued existence of a hostile work environment;

(d) discriminatory remarks about the complainant, participant or others;

(e) special attention to or assignment of the complainant, participant or others to demeaning duties not otherwise performed;

(f) tokenism or patronizing behavior;

(g) discriminatory treatment;

(h) subtle harassment; or

(i) unreasonable supervisory imposed time restrictions on employees in preparing complaints or compiling evidence of unlawful harassment activities or behaviors.]

 

R477-15-4. Complaint Procedure.

Management shall permit individuals[Individuals] affected by [unlawful]workplace harassment [may]to file complaints and engage in an administrative process free from bias, collusion, intimidation or retaliation. Complainants shall be provided a reasonable amount of work time to prepare for and participate in internal complaint processes.

(1) Individuals who feel they are being subjected to [unlawful]workplace harassment should do the following:

(a) document the occurrence;

(b) continue to report to work; and

(c) identify a witness, if applicable.

(2) An employee may file an oral or written complaint of [unlawful]workplace harassment with their immediate supervisor, any other supervisor within their direct chain of command, or the [agency human resource office or the] Department of Human Resource Management, including the agency human resource field office.

[(3) Any complaint of unlawful harassment shall be acted upon following receipt of the complaint.

](a) Complaints may be submitted by any individual, witness, volunteer or other employee.

(b) Complaints may be made through either [verbal]oral or written notification and shall be handled in compliance with confidentiality guidelines.

(c) Any supervisor who has knowledge of [unlawful]workplace harassment shall take immediate, appropriate action and document the action.

(3) All complaints of workplace harassment shall be acted upon following receipt of the complaint.

(4) If an immediate investigation by [the ]agency management is [not ]deemed unwarranted, the complainant shall be notified.[a meeting shall be held with the complainant, the supervisor or manager of the appropriate division, and others as appropriate to communicate the findings and management's resolution of the complaint.]

 

R477-15-5. Investigative Procedure.

(1) Preliminary reviews and formal investigations shall be conducted by qualified individuals based on DHRM standards and business practices.[The investigative procedures established by agencies shall allow the complainant to make specific requests relating to the investigation process and about the person or persons who will conduct the investigation. The agency shall attempt to comply with these requests, but may take whatever action necessary and appropriate to resolve the complaint.

(2) Preliminary reviews and investigations must be conducted in accordance with procedures issued by the Department of Human Resource Management.]

([3]2) Results of Investigation

(a) If the investigation [reveals that disciplinary action is warranted, the]finds the allegations to be sustained, agency [head]management shall take appropriate action [as provided in]under Rule R477-11.

(b) If an investigation reveals evidence of criminal conduct in [unlawful]workplace harassment allegations, the agency head or Executive Director, DHRM, may refer the matter to the[ Attorney General's Office or County or District Attorney as appropriate.]appropriate law enforcement agency.

(c) At the conclusion of the investigation,[If an investigation of unlawful harassment reveals that the accusations are unfounded,] the findings shall be documented[, the investigation terminated,] and the appropriate parties notified.[

(d) Investigations shall be conducted by qualified individuals based on DHRM standards.]

 

R477-15-6. Records.

(1) A separate [protected]confidental file[ record] of all [unlawful]workplace harassment complaints shall be maintained and stored in the agency['s] human resource field office, [DHRM office ]or in the possession of an authorized official.[ Removal or disposal of records in the protected file may only be done with the approval of the agency head or Executive Director, DHRM, and only after minimum timelines specified herein have been met. Records shall be kept for: a minimum of three years from the resolution of the complaint or investigative proceeding.]

(a) Removal or disposal of these files shall only be done with the approval of the agency head or Executive Director, DHRM.

(b) Files shall be retained in accordance with the retention schedule after the active case ends.

[(2) Supervisors shall not keep separate files related to complaints of unlawful harassment.

]([3]c) All information contained in the complaint file shall be classified as protected [pursuant to]under [requirements of ]Section 63-2-304, Government Records Access and Management Act.

([4]d) Information contained in the [unlawful]workplace harassment [protected ]file shall only be released by the agency head or Executive Director, DHRM, when [in compliance with the requirements of]required by law.

(2) Supervisors may not keep separate files related to complaints of workplace harassment.

([5]3) Participants in any [unlawful]workplace harassment proceeding shall treat all information pertaining to the case as confidential, [protected].[

(6) Final disposition of unlawful harassment cases shall be communicated to appropriate parties.]

 

R477-15-7. Training.

(1) Agencies shall comply with the [Unlawful]Workplace Harassment Prevention Training Standards [set]established by DHRM. As a minimum, these shall contain:

(a) course curriculum standards;

(b) training presentation requirements;

(c) trainer qualifications; and

(d) training records management criteria.

 

KEY: administrative procedures, hostile work environment

Date of Enactment or Last Substantive Amendment: [July 3, 2001]2008

Notice of Continuation: June 9, 2007

Authorizing, and Implemented or Interpreted Law: 67-19-6; 67-19-18; Governor's Executive Order on Prohibiting Unlawful Harassment, December 13, 2006