Tag Archives: Training

NEW GUIDANCE – EEOC Issues Guidance On Workplace Harassment

In the wake of the recent sexual harassment scandals, the Equal Employment Opportunity Commission (EEOC) recently published new guidance materials (entitled  “Promising Practices for Preventing Harassment“) which provides employers with numerous suggestions regarding best practices employers can adopt to help prevent workplace harassment (including sexual harassment).

Highlighted in this new publication is the importance of employers developing strong anti-harassment policies and providing regular anti-harassment training to all employees (with a additional recommendation that employers provide their managerial employees with more detailed training).

With respect to anti-harassment policies, the EEOC recommends that employers develop an anti- harassment policy that is comprehensive, easy to understand, and regularly communicated to all employees

This policy should include the following elements:

  • A statement that the policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;
  • An unequivocal statement that harassment based on, at a minimum, any legally protected characteristic is prohibited;
  • An easy to understand description of prohibited conduct, including examples;
  • A description of any processes for employees to informally share or obtain information about harassment without filing a complaint;
  • A description of the organization’s harassment complaint system, including multiple (if possible), easily accessible reporting avenues;
  • A statement that employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;
  • A statement that the employer will provide a prompt, impartial, and thorough investigation;
  • A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;
  • A statement that employees are encouraged to respond to questions or to otherwise participate in investigations regarding alleged harassment;
  • A statement that information obtained during an investigation will be kept confidential to the extent consistent with a thorough and impartial investigation and permitted by law;
  • An assurance that the organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and
  • An unequivocal statement that retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.

The EEOC further recommends that employers provide their anti-harassment policy to its employees in several different ways, including:

  • At hire;
  • In the employee handbook;
  • At any anti-harassment training; and
  • Posting the policy in the workplace.

Finally, the EEOC recommends that employers translate the policy into all languages commonly used by employees.

With respect to training, the EEOC recommends that employers provide regular interactive, comprehensive anti-harassment training to all employees.

The EEOC further recommends that an employee-level training program should the following elements:

  • Descriptions of prohibited harassment, as well as conduct that if left unchecked, might rise to the level of prohibited harassment;
  • Examples that are tailored to the specific workplace and workforce;
  • Information about employees’ rights and responsibilities if they experience, observe, or become aware of conduct that they believe may be prohibited;
  • Encouragement for employees to report harassing conduct;
  • Explanations of the complaint process, as well as any voluntary alternative dispute resolution processes;
  • Explanations of the information that may be requested during an investigation, including: the name or a description of the alleged harasser(s), alleged victim(s), and any witnesses; the date(s) of the alleged harassment; the location(s) of the alleged harassment; and a description of the alleged harassment;
  • Assurance that employees who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation;
  • Explanations of the range of possible consequences for engaging in prohibited conduct;
  • Opportunities to ask questions about the training, harassment policy, complaint system, and related rules and expectations; and
  • Identification and provision of contact information for the individual(s) and/or office(s) responsible for addressing harassment questions, concerns, and complaints.

With respect to managerial-level anti-harassment training, the EEOC recommends that these employees receive more in-depth training that also includes the following elements:

  • Information about how to prevent, identify, stop, report, and correct harassment, such as:
    • Identification of potential risk factors for harassment and specific actions that may minimize or eliminate the risk of harassment;
    • Easy to understand, realistic methods for addressing harassment that they observe, that is reported to them, or that they otherwise learn of;
    • Clear instructions about how to report harassment up the chain of command; and
    • Explanations of the confidentiality rules associated with harassment complaints;
  • An unequivocal statement that retaliation is prohibited, along with an explanation of the types of conduct that are protected from retaliation under federal employment discrimination laws, such as:
    • Complaining or expressing an intent to complain about harassing conduct;
    • Resisting sexual advances or intervening to protect others from such conduct; and
    • Participating in an investigation about harassing conduct or other alleged discrimination; and
  • Explanations of the consequences of failing to fulfill their responsibilities related to harassment, retaliation, and other prohibited conduct.

It is recommended that all employers review these new guidance materials and consider adopting most, if not all, of the EEOC’s recommended best practices.

Preventing Retaliation Is a Priority for OSHA

Earlier this month, OSHA released guidance materials (“Recommended Practices for Anti-Retaliation Programs”) intended to help employers create workplaces that are free of retaliation. These materials are a part of the OSHA Whistleblower Protection Program, which protect employees against retaliation for raising health, safety, and potential violation concerns, and provide a framework to help employers establish an anti-retaliation program.

The materials explain what OSHA dubs the “Five Key Elements to an Effective Anti-Retaliation Program”:

  1. Management leadership, commitment, and accountability
  2. System for listening to and resolving employees’ safety and compliance concerns
  3. System for receiving and responding to reports of retaliation
  4. Anti-retaliation training for employees and managers
  5. Program oversight

and also provide steps on how to implement an anti-retaliation program.

OSHA warns that the “document is advisory in nature and informational in content. It is not mandatory for employers, and does not interpret or create legal obligations.” In addition, OSHA clarifies that “this guidance is not intended to advise employees about their rights or protections under any whistleblower statute enforced by OSHA or any other government agency.”

Which Policies Saved An Employer $3.5 Million?

Save My Money

A court overturned a $3.5 punitive damage award because the employer had “exercised good faith” in implementing an anti-discrimination and anti-retaliation policy.  The court noted that the employer published these policies on an annual basis, distributed them to all new employees, and emphasized the policies with training.  The fact that the employer had a clear procedure for reporting and investigating complaints also weighed heavily in the court’s decision.

The jury in Wirshing v. Banco Santander de Puerto Rico, et al awarded Plaintiff Rose Marie Wirshing $351,018.34 in compensatory damages and $3.5 million in punitive damages.  Plaintiff claimed that her direct supervisor sexually harassed her, and that such harassment continued despite complaints she made to Human Resources.  She also alleged that following her complaint, she was subjected to a campaign of retaliation, including threats that she would lose her job.  Based on the employer’s policies and reporting procedure, the Court overturned the punitive damages award.

This decision highlights the importance of implementing policies and providing a clear reporting procedure for employees.

 

5 Elements of An Effective Anti-Harassment Program

shutterstock_150156149How do you prevent harassment in the workplace? Impossible?

Preventing harassment in the workplace is easier than you think. You can never keep an incident from happening, but a solid program will give you tools to help prevent and combat issues when they occur.

Some employers worry that talking about harassment, will open up the floodgates to complaints. Giving way to the old adage, “if I don’t know about it, it doesn’t exist”.

It may seem counterintuitive, but the more information employees have about anti-harassment, the better.

Your anti-harassment program should include the following elements:

  1. A strongly worded policy. This policy should clearly show your intolerance for harassment, prohibit retaliation, ensure employees that action will be taken immediately and provide instructions on how to file a complaint within the company. Inside Tip: You want to know about a complaint before a government agency (or attorney) does.
  2. Train employees and management. Employees should understand what constitutes harassment under the law. Many employees think that if their manager expects them to come to work on time, they are being “harassed”.  On the other hand, you want employees to know that behavior that is completely acceptable in social settings, may not be acceptable in the workplace, i.e., giving hugs, rubbing a co-worker’s shoulders, etc. Managers and supervisors should be trained on how to recognize and handle complaints. Inside Tip: Managers are your first line of defense. Not properly trained, they can be your worst offenders.
  3. Communicate the policy to all employees ensuring they understand harassment will not be tolerated and welcome open discussions with your employees. In addition to formal training, you can communicate your policy during orientation, periodically during regular meetings, in emails, and postings. Reasoning: Anti-Harassment should be a part of your company culture. Employees should know and understand the company’s position on unacceptable behavior.
  4.  Investigate all complaints quickly and take appropriate action to remedy the situation. Nothing is worse than letting a victim stew. If your employee doesn’t see action from you, you have given them plenty of time to contact a government agency or seek advice from an attorney.
  5. Get support from the top. Management sets the tone and the standard. Management and owners who do not engage in or tolerate bad behavior possess the foundation to build a healthy company culture that is less likely to experience harassment.

 

 

California Employers – Include “Abusive Conduct” in Your Sexual Harassment Training

Beginning January 1, 2015, California employers subject to AB 1825 (mandatory sexual harassment training), must include prevention of “abusive conduct” in their training programs.

Covered Employers

AB 1825 requires that employers with 50 or more employees provide all managers/supervisor with two-hours of interactive sexual harassment training.  The training must be provided every two years.  Additionally, the employer is required to document each individual manager’s training history.

Current Training Requirements

AB 1825 requires the sexual harassment training include the following:

  1. A definition of unlawful sexual harassment under the Fair Employment and Housing Act (“FEHA”) and Title VII of the federal Civil Rights Act of 1964. (Training may also include other forms of harassment covered by FEHA, and how harassment of an employee can cover more than one basis.)
  2. FEHA and Title VII statutory provisions and case law principles concerning the prohibition against, and prevention of, unlawful sexual harassment, discrimination and retaliation in employment.
  3. Types of conduct that constitute sexual harassment.
  4. Remedies available for sexual harassment.
  5. Strategies to prevent workplace sexual harassment.
  6. Illustrations of sexual harassment, discrimination and retaliation, including hypotheticals based on workplace situations, using training modalities such as role plays, case studies and group discussions.
  7. Resources for victims of unlawful sexual harassment, for example to whom victims should report alleged sexual harassment.
  8. The employer’s obligation to conduct an effective workplace investigation of the complaint.
  9. Training on what to do if a supervisor is personally accused of harassment.
  10. The essentials of an anti-harassment policy and how to use the policy if a harassment complaint is filed.

New Requirement – January 1, 2015

Beginning in 2015, training programs must also cover the topic of “abusive conduct”.

The amendment defines “abusive conduct” as:

Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

No Change to FEHA

“Abusive conduct” was not added as a protected category under FEHA; rather, the amendment only affected the training requirement.