In recent months, sexual harassment allegations have dominated the news cycle, forcing companies to answer not just to the courts but to the public. This climate, and the likelihood of continued scrutiny of employers, has pushed many companies to rethink their approach to internal investigations.

Attorneys at Morrison & Foerster and Nardello & Co., the New York-based investigation firm, said companies and boards across many industries should be considering how they will make a harassment-free workplace a priority.

“It's very important as a first step to consider, what is the law,” said Carrie Cohen, a white-collar partner in Morrison & Foerster's New York office. “When you are thinking of these issues from a corporate standpoint, what is the law and what is harassment, these days, that is certainly not the end point.”

New York Times and New Yorker stories spotlighting the alleged abuses of men in power sparked a movement honing in on harassment. Many high-profile and powerful men have been exposed in media reports and have been fired since.

Just as the #MeToo movement was escalating, a survey conducted by Boardlist and Qualtrics found that few corporate boards addressed gender issues. Only 23 percent of those surveyed said the boards have discussed accusations of sexually inappropriate behavior; 12 percent of the respondents said they had a plan of action in place; 17 percent re-evaluated the company's risk regarding sexist behaviors in the workplace; and 8 percent said the company discussed appropriate behaviors around company culture.

The Morrison & Foerster lawyers and the Nardello team on Tuesday provided a road map and a list of potential liability issues for companies and the law firms advising them to consider when tackling these issues. Here are a few takeaways from the firms.

Mechanisms should be in place for reporting and training.

When conducting an investigation, companies need to consider the protections for whistleblowers and what kind of investigation needs to come from a complaint, said Janie Schulman, a Morrison & Foerster partner in Los Angeles.

Cohen said employees need to have an avenue to come forward without fear of retaliation. “The cover-up is worse than the crime,” she said. Schulman added, “The law actually imposes on employers the duty to take reasonable steps to prevent and cure harassment. Those include adopting and disseminating a policy and having an employee-friendly reporting procedure. If you have a reputation for good investigations and employee reporting, that could be a defense to damages.”

Maintain vigilance and responsibility in standards and prevention.

Prehiring background checks can also be an easy and economical step, said Daniel Nardello, founder and chief executive of Nardello & Co. He said background investigations with due diligence and vetting would go a long way. It's not rocket science, he said, but it requires digging into public records, interviewing neutral sources and examining social media and blogging accounts. Cohen said there is a danger when there is an “open secret” about an executive or other employee. The law requires an investigation and not to punt the blame to other sources, if there is a suggestion of inappropriate behavior. “When did you know it? What did you do to prevent it? There is a whole host of things that companies need to be thinking about moving forward, given the current environment,” Schulman said.

The chain of command can be a deterrent to reporting misconduct, said Joshua Hill, a Morrison & Foerster partner in San Francisco. He said unconventional reporting mechanisms, including social media, should be considered and taken seriously. Schulman advised a zero-tolerance policy to avoid gray areas, noting that a jury or judge will decide where the line is drawn. Schulman said she uses the “grandma test.” It's probably inappropriate if you wouldn't say it or do it in front of your grandma. Cohen quipped, “Or if you don't want it on the front page of the New York Times, don't do it.”

Conduct thorough and trustworthy investigations before taking any action.

Questions have arisen over just how independent investigations are, because, at the core, outside firms are hired by the company. It's key to hire outside counsel who are seen as objective, Cohen said. Schulman said in recent months she has seen executives forced out of their jobs before a thorough investigation is conducted. She said in these cases they are likely leaving with severance packages. Cohen also said a credible investigation—led by an attorney—will create an attorney-client privilege. Companies must make sure to preserve names and private information about witnesses giving information and internal documents. The current climate should push employers to take claims and investigations seriously. “You are on notice with certain behaviors,” Nardello said. “You ignore that at your peril.”

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