Search form

Employment Policy Guidelines for the NATIONAL ASSOCIATION OF REALTORS® Professional Liability Insurance Program

These Guidelines are intended to assist REALTOR® associations develop employment policies that are required to obtain coverage for certain employment-related claims under the NAR Professional Liability Insurance Program.  Refer to the insurance policy documents for the amount of coverage available and the types of employment claims that are covered.  It is the responsibility of each association to ensure that its employment policies are consistent with these Guidelines and applicable law.

When implementing employment policies pursuant to these Guidelines, the association should affirm the at-will status of its employees and include language to disclaim the formation of a contract with its employees.  The association should also consult with legal counsel to ensure that the disclaimer and policies are consistent with applicable law.

1. Harassment Prevention Policy

Associations should strive to provide a harassment-free work environment for all employees. Federal law prohibits harassment based on age, disability, national origin, color, pregnancy, sex, race, religion, and certain military service.  Harassment is also unlawful when it occurs in retaliation for participation in discrimination complaint-related activities, such as filing a discrimination claim or testifying on behalf of a co-worker.  Additional protected categories may be covered by state and local law in your jurisdiction.

Associations must adopt a written harassment prevention policy as a requirement for coverage under the Professional Liability Insurance Program.   The policy must, at a minimum, define the conduct that is prohibited, provide a procedure for filing complaints, and prohibit retaliation.  A  sample policy is attached to these Guidelines below as Attachment 1 (“A Sample  Harassment Prevention Policy for REALTOR® Associations”) which may be used as a resource for drafting your own. 

Associations must also implement the harassment prevention written policy by distributing it to all employees and training employees about the type of conduct that is prohibited and how to file a complaint. Likewise, management must be prepared to receive harassment complaints and conduct appropriate investigations.  Adoption and implementation of the harassment prevention policy should be done in conjunction with your association’s legal counsel to ensure compliance with applicable law.  As with all employment policies, application of the harassment prevention policy must be uniformly neutral and consistent.

2. Performance Reviews

The performance review should be designed to provide feedback to employees and elicit feedback from employees. Discuss the employee’s accomplishments and those behaviors that need improvement. Also, set goals for the employee to meet by the next performance review.  Employees should be given the opportunity to express their job-related thoughts and concerns.

New, transferred or promoted employees should be reviewed approximately six months after their starting date in the new position.  All subsequent reviews should be conducted on an annual basis. Conduct additional performance reviews if the employee’s performance or behavior warrants it.  Performance reviews must be documented in writing and signed by the employee.

In addition to the annual performance review, managers and supervisors should make it a goal to consistently provide ongoing, immediate positive and negative feedback to employees.

3. Disciplinary Action

Employees should be disciplined in a consistent, uniform, and progressive manner. Follow set steps when disciplining poor employee performance and violations of any standards of conduct.  Examples of such steps are:

  1. Verbal warning
  2. Written warning
  3. Probation
  4. Suspension
  5. Termination

The decision about which step to take will depend on the nature of the violation or performance problem, its seriousness and frequency, and the employee’s record.  Therefore, the disciplinary action policy should allow the decision-maker sufficient discretion to determine which step is appropriate based on the circumstances.

3a. Verbal Warning

For many minor infractions or performance problems, an employee may only require a verbal warning to correct the situation. The procedure for administering a verbal warning should include:

  • Meet with the employee.
  • Explain the nature of the violation or the performance problem.
  • Discuss the problem and its resolution with the employee.
  • Describe the future behavior expected of the employee.
  • Establish the time frame by when the change needs to occur.
  • Identify the consequences, should the change not occur.
  • Note the date, time and content of the conversation in a writing signed by you.
  • Provide the memorandum to the employee and ask the employee to sign the memorandum acknowledging his receipt and understanding of it.
  • Put a signed copy of the memorandum in the employee’s personnel file.

3b. Written Warning

The next step in progressive discipline may be to issue a written warning. Written warnings may be appropriate where, for example, an employee continually repeats minor violations, has repeated performance problems, violates more serious standards of conduct or demonstrates major performance problems. The procedure for issuing a written warning should include:

  • Create a written memorandum in which the facts surrounding the situation are described, including prior steps taken in an attempt to correct the problem.
  • The memorandum should include a timeframe to correct the problem and consequences for failing to do so.
  • Meet with the employee to discuss the memorandum.
  • Ask the employee to sign the memorandum acknowledging his receipt and understanding of it.
  • Allow the employee to offer a written response.
  • Put a signed copy of the memorandum (with the employee’s response, if any) in the employee’s personnel file.

3c. Probation

Probation may occur after an employee has been warned about a specific behavior and there is an opportunity to correct the situation in lieu of suspension or termination. An employee on probation typically continues to report to work and to perform his duties with the expectation that the behavior or situation in question will be corrected. The procedure for probation should include:

  • Create a written memorandum in which the facts surrounding the situation are described, including prior steps taken in an attempt to correct the problem.
  • Specify the duration of the probation and specifically identify what corrections to the behavior or performance are expected. Also include the consequences if expected corrections are not made.
  • Meet with the employee to discuss the memorandum and ask the employee to sign it, thereby acknowledging his receipt and understanding of it.
  • Allow the employee to offer a written response.
  • Put a signed copy of the memorandum (with the employee’s response, if any) in the employee’s personnel file.

3d. Suspension

Some situations warrant the temporary removal of staff from the premises and/or interaction with other employees or members while further investigation or consideration takes place. An association’s policy should address whether compensation and benefits also continue during a term of suspension.  Any deductions in pay must comply with applicable employee benefit plan documents and applicable law. The procedure for suspension should include:

  • Prior to suspending an employee, seek advice from legal counsel to ensure the suspension and supporting documentation do not unnecessarily expose the association to liability under state and federal law.
  • Create a written memorandum in which the facts surrounding the suspension are described, including any prior steps taken in an attempt to correct the problem.
  • Specify the duration of the suspension in the memorandum and what will lead to the termination of the suspension. Also state whether compensation will continue during the suspension.  Important: For exempt employees, make sure pay deductions comply with the Fair Labor Standards Act and applicable state law to avoid a loss of exempt status.
  • Meet with the employee to discuss the memorandum. It is advisable to have another senior staff person present to witness the meeting. Ask the employee to sign the memorandum, thereby acknowledging his receipt and understanding of it.
  • Allow the employee to offer a written response.
  • Put a signed copy of the memorandum (with the employee’s response, if any) in the employee’s personnel file.
  • When the suspension begins, ask the employee to leave the premises immediately. Arrange to have a senior staff person present if the employee removes personal belongings from the workstation and/or office.

3e. Termination

If an occurrence appears to merit immediate termination, contact association legal counsel. If the termination is the culmination of repeated performance or behavior issues, the employee’s file should contain sufficient documentation to support termination. Before discharging an employee, review all documentation with legal counsel.

If termination results from circumstances other than employee performance or behavior issues, such as a reduction-in-force, legal counsel should still be involved to avoid violations of state and federal civil rights laws.

3e(i). Documentation

All investigation materials pertinent to the behavior or performance problem at issue should be included in that employee’s personnel file, such as reports of incidents of misbehavior, conversations with employees regarding those incidents, memorandums, employee responses, and other relevant information.  Documentation should be objective and provide only the facts.  Opinions and advice from legal counsel should not be included in the employee’s personnel file.

3e(ii). Practical Concerns

The termination meeting with the employee should be conducted with another senior staff member present as a witness.  Meet in a private location and review the appropriate documentation, informing the employee of the reason(s) why his employment is being terminated.

If the association will offer severance pay or other consideration in exchange for a release of claims against the association, have the document ready for discussion at the termination meeting. The employee should be given sufficient time to consider the documents and the opportunity to discuss them with legal counsel. Where applicable, the release must comply with the Older Workers Benefit Protection Act of 1990 (an amendment to the Age Discrimination in Employment Act) as well as any applicable state law.

Arrange to have a senior staff person present if the employee removes personal belongings from the workstation and/or office.

Revised Date: March 2, 2009

ATTACHMENT 1

This sample policy is intended to assist REALTOR® associations develop their own harassment prevention policy to meet one of the requirements for coverage under the NAR Professional Liability Insurance Program.  It is the responsibility of each association to ensure that it has adopted and implemented an appropriate harassment prevention policy consistent with the Employment Policy Guidelines under the Insurance Program.  Associations should consult with legal counsel when adopting and implementing their harassment prevention policy to ensure compliance with applicable law.

 

ABC Board of REALTORS® Workplace Harassment Prevention Policy

I. Introduction

It is the goal of the ABC Board of REALTORS® to promote a workplace that is free of harassment of any kind, including but not limited to sexual harassment and harassment based on age, disability, race, color, national origin, religion, sex, pregnancy, and military service.  Harassment of employees occurring in the workplace or in other work-related settings is strictly prohibited.  Further, any retaliation against an employee who has complained about harassment or who has cooperated with an investigation of a harassment complaint is likewise prohibited. 

Because the ABC Board of REALTORS® takes allegations of harassment seriously, we will respond promptly to complaints of harassment and where it is determined that an employee has violated this policy, we will act promptly to eliminate the conduct and impose such corrective action as is necessary, including disciplinary action up to and including termination where appropriate.

While this policy sets forth our goals of promoting a harassment-free workplace, this policy  in no way limits the Board’s authority to take disciplinary or other remedial action for workplace conduct which we deem unacceptable, regardless of whether that conduct violates this policy.

II. Definitions

  1.  Sexual Harassment

Sexual harassment means sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature when:

(a) submission to, or rejection of, such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; or,

(b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

The definition of sexual harassment is broad and covers sexually oriented conduct that is unwelcome and, whether intended as such or not, has the effect of creating a work environment that is hostile, offensive, intimidating, or humiliating to male or female employees. While it is not possible to list all circumstances that may constitute sexual harassment, the following are some examples of conduct which, if unwelcome, may constitute sexual harassment depending upon the totality of the circumstances including the severity of the conduct and its pervasiveness:

  • Unwelcome sexual advances -- whether they involve physical touching or not;
  • Sexual epithets, sexually demeaning jokes, written or oral references to sexual conduct, gossip regarding one's sex life;
  • Comments on an individual's body or about an individual's sexual activity, deficiencies, or prowess;
  • Displaying sexually suggestive objects, pictures, cartoons;
  • Unwelcome leering, whistling, brushing against the body, sexual gestures, suggestive or insulting comments;
  • Inquiries into one's sexual experiences; and,
  • Discussion of one's sexual activities.
  1. Other Forms of Harassment

The ABC Board of REALTORS® strictly prohibits harassment of its employees based on age, disability, race, color, national origin, religion, sex, pregnancy, and military service.  Such harassment includes, but is not limited to, conduct that has the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or offensive work environment.

The following are some examples of conduct which may constitute harassment when the conduct is connected to one’s membership in a group protected under this policy, depending upon the totality of the circumstances, including the severity of the conduct and its pervasiveness:

  • Epithets, slurs, derogatory or demeaning jokes, gestures, and comments;
  • Explicit or implicit threats or promises from supervisors regarding promotion, salary increases, job assignments, or other terms and conditions of employment;
  • Displaying offensive objects, pictures, or cartoons; and
  • Proselytizing or unwelcome comments or discussions about religion.
  1. Retaliation

The ABC Board of REALTORS® strictly prohibits retaliation against an employee who has complained about any form of harassment or has cooperated with an investigation of a harassment complaint.

III. Harassment Complaints

If any employee believes that he or she has been subjected to harassment prohibited by this policy, or has witnessed such harassment, the employee has the right to file a complaint with the Board.  This may be done in writing or orally. Employees are encouraged to file complaints immediately upon experiencing or witnessing prohibited harassment so that a rapid response and remediation may occur, and to help ensure a harassment-free environment.

If you would like to file a complaint you may do so by contacting [Names, telephone extensions of the appropriate individuals to whom complaints should be addressed; e.g., human resources director, manager, legal counsel, or other appropriate supervisory person.  At least two people should be named to prevent a situation where the alleged harasser is the person to whom the complaint would logically be addressed]. [These persons] are also available to discuss any concerns you may have and to provide information to you about our policy on sexual harassment and our complaint process.

IV. Harassment Investigations

When we receive the complaint of harassment we will promptly investigate the allegation in a fair and expeditious manner. The investigation will be conducted in such a way as to maintain confidentiality to the extent possible under the circumstances. In most cases, the investigation will include a private interview with the employee who filed the complaint, the employee alleged to have engaged in harassing conduct, and witnesses (if any). When we have completed our investigation, we will, to the extent appropriate, inform the employee who filed the complaint and the employee alleged to have engaged in harassing conduct of the results of that investigation.

If it is determined that inappropriate conduct has occurred, we will act promptly to eliminate the offending conduct, and where appropriate, we will also impose disciplinary action.

V. Disciplinary Action

If the ABC Board of REALTORS® determines that an employee has engaged in harassment prohibited by this policy, we will take appropriate disciplinary action up to and including termination.  The Board will inform the complaining employee of what action will be taken to eliminate the harassment.