Sexual Harassment Policies for Small Businesses and Franchises

The following is an interview with Mary Simmons, Human Resource specialist.

Director of HR Consultant for Portnoy, Messinger, Pearl & Associates, Inc., a Labor Relations and Human Resources consulting firm.

Mary Simmons
Director of HR Consultant for Portnoy, Messinger, Pearl & Associates, Inc.,

You can listen to the live interview at…icies-franchises/

Tom Scarda:                  Sexual harassment has been going on for years and years and years, unfortunately. Many companies have sexual harassment training. I know that when I worked for the New York City subway, we were doing sexual harassment training back then, and that was in like the ’80s and the ’90s. Now it’s serious business for everyone. With the Me Too movement and all that going on in the background, I think business owners, small business owners even, local franchise owners, need to know the laws, the rules, the regulations, so I’m bringing in the foremost expert in America on this, and her name is Mary Simmons. Mary has been in HR for over 25 years, so she’s a Human Resource and training professional, and she helps businesses achieve success by knowing what the parameters are in their own business. She’s currently the director of human resource consulting for Portnoy, Messinger and Pearl & Associates, a labor relations and human resource consulting firm. So, Mary, welcome.

Mary Simmons:             Thank you, Tom. I’m not sure I’m the foremost expert in-

Tom Scarda:                  I think you are.

Mary Simmons:             Okay. Alright. I’ll take that title. I’ll take that title.

Tom Scarda:                  I mean, you know it. You’re the one that I go to when I have HR questions-

Mary Simmons:             Thanks.

Tom Scarda:                  You know, I think this sexual harassment thing is something that everyone knows about, but not everybody as a business owner is thinking about-

Mary Simmons:             Yeah.

Tom Scarda:                  So, give me your take. What are you doing with business owners to help them understand the parameters of this whole thing?

Mary Simmons:             Yeah, it’s actually scary for business owners I think. I mean, first of all, we have the Me Too movement out there, which makes it seems like somebody’s accused and automatically executed.

Tom Scarda:                  Yeah-

Mary Simmons:             If you-

Tom Scarda:                  Yeah, guilty before proven innocent.

Mary Simmons:             Right, exactly.

Tom Scarda:                  Yeah.

Mary Simmons:             … and the first piece of advice that I’d wanna give business owners is, this isn’t Hollywood. So there should be an investigation. But, the second piece of advice is I wouldn’t relax on this topic because your employees know more than you do. So there’s a lot of information out there, and as a business owner, you’re susceptible to lawsuits and so you have to protect yourself.

Tom Scarda:                  So, what’s the risk? I mean, if somebody … if I own a little sandwich shop, or I own a little deli, or I own some little franchise somewhere in America; a maid service, and somebody … and I learn of or somebody actually comes to me, an employee, and says, “Hey, I feel uncomfortable working with this person” for whatever reason. What do I do?

Mary Simmons:             Right, so let me just mention that New York state and New York City now have mandatory sexual harassment training for every employer, so New York state is every employer, one or more, and New York City is over 15, and California’s had that training for a long time, so I do see this mandatory training coming forward for a lot more states, but of course I recommend it for any employer in any state, and that’s the first thing you’re gonna do to protect yourself.

Mary Simmons:             The other thing is, if you have an employee come forward, you have to do an investigation. Again, it’s not Hollywood. You can’t automatically terminate the person that was accused because this could be a he-said-she said, she-said-she-said, he said ’cause right-

Tom Scarda:                  Right.

Mary Simmons:             It could be same sex sexual harassment-

Tom Scarda:                  That’s right.

Mary Simmons:             … and it doesn’t have to be of the homosexual nature. It’s not always the male supervisor to the female subordinate. So we’re seeing a lot of cases. Last year, sexual harassment claims were way up. This year, my prediction, and I don’t think you need a crystal ball, the claims are gonna be up even higher. And as the business owner, you are liable. They can sue your organization, but they can sue you.

Mary Simmons:             So, Tom, if you were a business owner, and I was your employee, I came forward and said, “Joe that I work with sexually harassing me.” And even if I said, “Don’t say anything. I just wanna tell you ’cause I feel uncomfortable.” As the business owner or as a manager in a business, you have to act. ‘Cause if you don’t, and then I go to the EEOC, the Equal Employment Opportunity Commission and say I was sexually harassed, even if I tell them I told you not to do anything, you’re now liable. You see something or hear something, you have to do something about it-

Tom Scarda:                  Yeah, okay.

Mary Simmons:             … and you have to do an investigation and take copious notes to protect yourself.

Tom Scarda:                  Okay. And it’s … and I think that should be done anyway, and I think it’s an uncomfortable situation for some people when it happens, so some people try to maybe brush it under the rug and hope it goes away, and it a lot of times it probably does go away, but in that one instance where somebody really feels uncomfortable or for some reason, doesn’t like you as an employer and decides, hey, I’m gonna go and do something, you could be in big, big trouble, and that in itself is scary, so if you’re a franchise company as an example … so you do training of your employees, and you’re training them how to run your computer system, you’re training them how to do marketing and all that kind of stuff, should they take an hour or whatever it is-

Mary Simmons:             Right.

Tom Scarda:                  … to bring in somebody like you to do a sexual harassment course for their new franchise owner?

Mary Simmons:             Yeah, I mean, absolutely. Even if you’re not in New York state where it’s mandatory, and as you said, you had the training a long time ago. Back in my career with, in banking, we did it. 30 years ago we were giving this training. You have to protect yourself because, listen, the first thing that’s gonna happen if you go to a court of law and somebody brings you up on charges or somebody in your organization, the judge is gonna say, “Well, what did you do as a business owner to protect that employee?” Training is the first thing to protect them. The other thing is to have a policy so they know where to go and who to talk to, and a policy shows that you’ll do an investigation and shows there’s no retaliation.

Tom Scarda:                  Ah. So you … the idea of a policy makes a lot of sense now that you said that-

Mary Simmons:             Definitely.

Tom Scarda:                  … So do I need to go to an attorney for this or does your organization-

Mary Simmons:             Yeah, no-

Tom Scarda:                  … draft something like that?

Mary Simmons:             Yeah, we do employee handbooks, so you don’t have to have an employee handbook bible, right? So, there’s no law out there-

Tom Scarda:                  But, it’s funny-

Mary Simmons:             … that says you have to have a handbook-

Tom Scarda:                  I don’t want to interrupt you-

Mary Simmons:             Yeah, that’s okay.

Tom Scarda:                  … but in franchising, yeah, you do. You gotta have that as part of the training but-

Mary Simmons:             My, my bad. See? I just learned something.

Tom Scarda:                  Yeah, so-

Mary Simmons:             Thank you.

Tom Scarda:                  Yeah.

Mary Simmons:             So you should have a handbook because there’s a lot of laws, federal and state, that have to be given to your employees in writing. So why not put that in a handbook?

Tom Scarda:                  Okay.

Mary Simmons:             Along with all the other things that you wanna say like time off, so that you can maybe attract people to your organization, so handbook is the place that that policy would go and you just have to make sure that you’re updating it as per the laws in your particular state.

Tom Scarda:                  Right, and it just … I think it makes everybody feel a little bit better, whether it’s the employees or the judge when it comes down to it-

Mary Simmons:             Oh, definitely.

Tom Scarda:                  … and you could stand up and say, “This happened. I trained my employees ahead of time.” It just protects you, but it also … before anything happens, if you do that and you’re proactive, it makes you look good as a business owner.

Mary Simmons:             Oh, absolutely. It makes you look more professional. If I was to join an organization, and they’re just off the top of their head trying to remember their policies and procedures, that’s not an organization I’d wanna join, and it’s gonna be harder to recruit people going forward. We have almost zero unemployment in most states.

Tom Scarda:                  Right, right now, yeah. And that’s amazing. So, what else should we know about the sexual harassment law? ‘Cause I … we’re based in New York and you’re in New York, and so in New York it’s very, very top-of-mind, and it’s mandated as you said-

Mary Simmons:             Right.

Tom Scarda:                  But in other states, I believe it’s going to spread.

Mary Simmons:             Oh, definitely. Definitely.

Tom Scarda:                  So what do people need to do if they’re outside of New York? If they really wanna be proactive, what should they do?

Mary Simmons:             Every organization should have a policy on sexual harassment, so part of that policy should be if I feel like I’ve been sexually harassed, and listen, even though sexual harassment is top-of-mind right now because of the Me Too movement, we also include discrimination-

Tom Scarda:                  Yes.

Mary Simmons:             … because sexual harassment is discrimination based on sex. So part of that policy should be discrimination and that policy should include, if I feel like I’ve been sexually harassed or discriminated against, who do I go to? What do I do? And you have to make sure, and I know some of the franchises are small, but they need to have more than one person they can go to, because again, my example, if you’re my manager, Tom, and you’re the one sexually harassing me, I have nobody to go to.

Tom Scarda:                  Right.

Mary Simmons:             Right? In New York, you have to give the outside, external agencies you can go to, but I also recommend it for other organizations in other states. Everybody can go to the EEOC, which is the federal agency-

Tom Scarda:                  Right.

Mary Simmons:             … but part of that policy also should be, what are supervisors supposed to do?

Tom Scarda:                  Okay.

Mary Simmons:             … and none of the states except for California, make manager training mandatory, but your managers are whose going to protect you. They’re on your front lines. They’re dealing with your employees when you’re not at your franchise or if you’re not managing at your franchise, your managers are the ones that need extra training, and the retaliation is a big deal.

Tom Scarda:                  Right. It is. And it’s … so it’s interesting, in a franchise world, there’s really two sets of people that are kind of responsible. You have the franchise or the company-

Mary Simmons:             Right.

Tom Scarda:                  … and they do the training of the franchisees, but they don’t do the training of the franchisee’s employees and there’s a whole different topic that we could talk about at another time, which is joint employer-

Mary Simmons:             Right.

Tom Scarda:                  We could talk about that later, but at the local level for a franchise owner, they should take it upon themselves to do some training right in their bagel shop, if you will.

Mary Simmons:             Yeah, absolutely, and we also provide e-training, which is much easier, especially for a franchise that’s a retail establishment-

Tom Scarda:                  So e-training meaning online?

Mary Simmons:             Meaning online training. It does meet the New York requirements and then we do have training for the other states as well and that makes it a lot easier. You can pay your employees … don’t forget, mandatory training has to be paid.

Tom Scarda:                  Uh-huh.

Mary Simmons:             But it’s about an hour. You can just send the link to your employees and say, “Get this done.” You’ll know when it’s done because we … you know, you can get into the system to see that.

Tom Scarda:                  Oh my god, I love that.

Mary Simmons:             It’s … what are you gonna do, shut down your store?

Tom Scarda:                  Yeah.

Mary Simmons:             If you have the store that operates seven-

Tom Scarda:                  Sure.

Mary Simmons:             … days a week-

Tom Scarda:                  Right.

Mary Simmons:             … you don’t wanna do training at 9 p.m. at night. You’re not gonna have a captive audience.

Tom Scarda:                  Wow, that’s brilliant. I’m so glad you said that.

Mary Simmons:             Yeah, e-training really works. They can take it from their smartphone even.

Tom Scarda:                  So, and then that means that I have a record that they actually took the training.

Mary Simmons:             Right. And you keep that, and god forbid again-

Tom Scarda:                  Right.

Mary Simmons:             … litigation comes forward, you’ve got the proof that you at least did the training. You don’t do that training and you don’t have a policy, you’ve just tripled your fines.

Tom Scarda:                  Yikes.

Mary Simmons:             And sometimes these cases come up and the attorneys hear that I work with, we’ll say, “We’re gonna win this” but it’ll cost the employer more to win the case than to settle, so they do end up settling a lot of times because it’s less expensive.

Tom Scarda:                  Wow.

Mary Simmons:             Yeah, there’s a lot … like I said, your employees know more than the owner sometimes.

Tom Scarda:                  Well, that’s awesome. This is great information, Mary. Is there anything else that you want to say about the sexual harassment policies?

Mary Simmons:             I just think that it’s prudent that everybody read up on it and get more information. Obviously, you can reach out to me at anytime to get that information but it’s readily available through the Equal Employment Opportunity Commission, but get yourself educated on this, so that you can get on top of it. Do the training and do the policy.

Tom Scarda:                  So I’m gonna put all your links on our website, But, how can people get in touch with you, and what’s your website?

Mary Simmons:             So, I can reached at M for Mary Simmons, The number here is 516-921-3400 and our website is

Tom Scarda:                  Well, that is awesome. I appreciate it, Mary. Thanks for the taking this time out and explaining the sexual harassment policies for us, and we’ll talk to you again soon.

Mary Simmons:             My pleasure. Thanks again, Tom, for having me on.

Director of HR Consultant for Portnoy, Messinger, Pearl & Associates, Inc., a Labor Relations and Human Resources consulting firm.

Mary Simmons
Director of HR Consultant for Portnoy, Messinger, Pearl & Associates, Inc.,


About the author, Thomas Scarda

Tom Scarda hosts The Franchise Academy Podcast show on iTunes and is the author of three books: the number 1 bestseller Franchise Savvy: 6 Strategies Pros Use to Pick a Top Performing Franchise, The Road to Franchise Freedom and The Magic of Choosing Uncertainty. A self-made small business expert and Certified Franchise Expert, Tom has owned and operated both franchised and non-franchised businesses.

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