Harassment Prevention Training

I have been conducting harassment prevention training for California clients since AB 1825 became effective back in 2005. After presenting what must be hundreds of sessions in the last decade, I am always on the look-out for new topics to discuss, and new hypotheticals to present, and sometimes the universe just cooperates with me. Watching the second Presidential debate last weekend was one of those experiences.

Young businessman arguing with sad stressed coworker
Copyright: vadymvdrobot / 123RF Stock Photo

Since 2015 (AB 2053), California law has required employers to train management on abusive conduct (also known as “bullying”). While bullying is not yet illegal, it should be against most employer policies, and should lead to discipline for employees who violate those policies.

Bullying is defined as workplace conduct, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. The law goes on to say that bullying may include:

  • Derogatory remarks, insults, and epithets;
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;
  • The gratuitous sabotage or undermining of a person’s work performance.

So let’s consider the following hypothetical:

A group of managers is in a team meeting where each person is supposed to present on their enumerated topics to a group of colleagues. When one manager is talking, the other one (who is physically larger) is pacing behind, making faces, and making noises (something between a snort and a grunt). The hands are gesturing and fingers pointing. The manager pacing also repeatedly interrupts the colleague, either with snide comments, jokes (which get laughs or cheers), or insults. Is this bullying?

Would a reasonable person find this conduct to be hostile? Offensive? Unrelated to an employer’s legitimate business interests? Is this verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating? Absolutely.

In fact, many employment attorneys and HR professionals I know were physically uncomfortable while watching the debate, at least in part because we were witnessing conduct that no reasonable employer could tolerate. While we certainly cannot require free speech to be polite or politically correct, we certainly can and should agree that this type of bullying would not be okay in any workplace.

With minimal public commentary, the Department of Fair Employment and Housing has passed new regulations broadening and strengthening the Fair Employment and Housing Act.  While it’s too late to (officially) complain about them, here’s why you should care:

A) The new regulations significantly expand who is protected under FEHA.

First, the definition of “employer” is expanded so that smaller employers with fewer than five employees who utilize outside contractors, interns or even unpaid volunteers must comply with the Act. Second, it formalizes protection under the Act for non-employees in the workplace such as unpaid interns and volunteers. Third, it expands pregnancy-related protections to transgender individuals by eliminating the word “woman” from the rules.

B) The new regulations impose stricter requirements for sexual harassment training.

Existing regulations limit employer recording keeping to basics like the name and date of the training.  However, now employers need to keep copies of all materials utilized by the trainer including written slides, materials, attendance sheets, questions submitted during the seminar or webinar, and responses given by the trainer.  All records must be kept for two years.

C) The new regulations enhance employer notice requirements.

Though the regulations stop one step short of requiring employers to actually accompany an employee to the DFEH to file a claim, they place extra burdens on employers to notify employees of their rights. In addition to handing out pamphlet DFEH-185 on sexual harassment, employers need to proactively provide a copy of their anti-harassment policy via hard copy, e-mail or intranet.  Further employers must ensure employees understand and affirmatively acknowledge receipt of such policies. Employers must also translate such policies into all languages that are spoken by 10 percent or more of their workforce.

D) The new regulations require more from employer policies. Specifically, employers must develop a harassment, discrimination, and retaliation prevention policy that:

(1) Is in writing.

(2) Lists all current protected categories covered under the Act.

(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act.

(4) Creates a complaint process to ensure that complaints receive: confidentiality to the extent possible; a timely response; impartial and timely investigations by qualified personnel; documentation and tracking for reasonable progress; appropriate options for remedial actions and resolutions; and timely closures.

(5) Provides a complaint mechanism that doesn’t require an employee to complain directly to his or her immediate supervisor, including an alternate reporting structure, a complaint hotline, or access to an ombudsperson.

(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally.

(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

(8) States that the employer will keep the investigation confidential to the extent possible, but does not promise complete confidentiality.

(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.

(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

As a result of these new obligations, employers should review their harassment, retaliation and training policies to ensure compliance with the regulations.  As always, my colleagues and I are available to answer any questions.

While some people view hugs as a way to “spread the love,” in the workplace, they can be a way to spread the liability. So here are some things that lawyers who defend sexual harassment claims would like you to know about hugging in the workplace.

  1. All hugs are not created equal. They differ in terms of duration, force, hand placement, and extent of body contact. If you must hug, consider a side hug, where your physical contact is limited to an arm around the person’s upper back and shoulders.
  2. Not everyone likes to be touched.
  3. Some people who like to be touched don’t like to be touched by their boss or co-workers.

    Copyright: neilld / 123RF Stock Photo
    Copyright: neilld / 123RF Stock Photo
  4. Understand the subtle and not-so-subtle cues that someone may not want a hug. These include:
    • They make a point of having a pile of folders in their arms whenever they encounter you.
    • They not only don’t hug you back, but look panic stricken when you approach.
    • When you wrap them in a comforting embrace they become rigid, sob uncontrollably, or attempt to escape.
    • They scream: “Get your dirty paws off me!”
  5. Make sure it’s consensual. Implied consent – they’ve hugged you before or they’re standing there with their arms open – is probably fine. Oral consent – they’ve said they’d like a hug – is better. Written, notarized consent is the gold standard.
  6. If in doubt, keep your hands to yourself.

Remember, under California law, employers with 50 or more employees must train their California supervisors on sexual harassment every 2 years. Is your company current?

As an employment litigator and the co-chair of my firm’s Women’s Initiative, I have been particularly interested in the press surrounding the claims brought by Ellen Pao against her former employer.  As explained in a prior post, Pao claimed that she was harassed by male colleagues, and when she complained about that harassment to Human Resources, was retaliated against and ultimately terminated.  She brought claims of sex discrimination and retaliation, and a San Francisco jury vindicated the employer and dismissed her claims.

This saga illuminated several of the themes that I often address with clients when conducting harassment prevention training.

First, to be unlawful, conduct must be “severe or pervasive,” unwelcome, based on sex, and have an adverse impact on the work environment.  As of this year, harassment prevention training must cover abusive conduct aka “bullying” (defined as conduct, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests).  Put simply, just because the conduct isn’t unlawful, doesn’t make it right.

Second, retaliation claims are very easy to bring and very hard to defend.  While the employer here was ultimately successful, keep in mind that it took a 24 day jury trial for that vindication.  Quite often retaliation claims are fact intensive and not susceptible to summary judgment or prompt resolution.

Third, even if harassment claims fail, it is quite possible for a retaliation claim based on a meritless harassment claim to succeed.  And unfortunately, many managers do retaliate against employees who complain, albeit sometimes inadvertently.  In my training, I always include examples of a manager who was frustrated with an employee who complained about something, and takes actions that could be construed as retaliatory (such as ignoring pleas for help, letting others give the complaining employee a hard time, and/or directing opportunities elsewhere). Managers need to be trained to not only avoid retaliation, but also the appearance of retaliation.

Fourth, defending a harassment, discrimination, or retaliation claim can be a very high hurdle for employers, who need to essentially justify their actions by picking apart the plaintiff’s behavior.  That requires a very delicate balance.  In reviewing how Pao was expertly cross-examined, I cheered for the female attorney who scored such good points for her client.  At the same time I was saddened for women who honestly believe they are stepping up to expose institutional problems that others are too afraid to raise.

And finally, the press accounts of the Pao trial indicate that there is unconscious bias in the workplace.  Semantics matters, such as referring to a woman as someone with “sharp elbows” – would anyone refer to a man that way?

All in all, there are lessons here for everyone.  Let’s just hope employers (and employees), female (and male), take a minute to digest them.

 

When you read about sexual harassment claims, the focus is on what the alleged harasser is accused of doing. The sordid details are what attract readers. The Marchuk v. Faruqi & Faruqi case is one recent example.

But in the real world of harassment litigation, the focus is on what the employer did. That’s because the plaintiffs and their attorneys don’t just want a verdict against the usually shallow-pocket individual defendant. They want a verdict against the usually deep-pocket employer. To get that, they need to show that the employer didn’t take the issue seriously.

The time to start preparing to defend these claims is before they’re brought. And you can start by answering these questions:

  1. How current is the company’s policy against harassment? Does it recognize the breadth of activity that can constitute harassment? Does it list the various protected categories and provide multiple avenues for employees to raise concerns?
  2. Can employees find the policy easily? Better yet, have they signed a form acknowledging receipt of the policy (or the handbook containing it).
  3. Have managers received the bi-annual harassment training mandated by California law?
  4. Do managers behave appropriately? Legally, the actions of managers and supervisors are deemed actions of the company. If there were instances where managers didn’t behave appropriately, have the issues been addressed in a way that is reasonably calculated to prevent them from recurring?
  5. When managers observe inappropriate behavior at work, do they respond effectively? A manager turning a blind eye to bad behavior will be portrayed as the company condoning it.
  6. Has your company identified a qualified investigator to evaluate harassment complaints? You want someone who’s far enough from the situation to be impartial, who has experience investigating these types of issues, and who understands how to question witnesses.

How your company responds when it receives a harassment complaint remains critically important. But there are steps employers need to take before that point to show that they’re serious about providing a harassment-free workplace.

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo
Copyright :  Vedran Vukoja (Follow)
Copyright : Vedran Vukoja

Every employer in California needs legal help at some point. The laws are too complex and the penalties too severe for employers to figure it all out on their own. Even the courts and government agencies can’t decide what some of these laws mean.

So the only question for employers is whether you’re going to take preventive steps to avoid legal issues or wait for the legal issues to arise. The former course can be way less expensive, disruptive, and damaging to your reputation. With that in mind, my colleague Nancy Yaffe and I put together a list of 10 things California employers can do to protect themselves in 2015. You can access it here.

And yes, that’s the same Nancy Yaffe who was recently selected by L.A. Biz to receive one of its inaugural Women of Influence Awards. The program honors women business leaders in the LA area who stand out both for their achievements in the marketplace and their commitment to community and mentoring. Way to go Nancy!

If you were worried that California employers weren’t sufficiently regulated, let me calm your fears. Governor Jerry Brown has signed several new bills this month.

Nancy Yaffe already reported on the new paid sick leave requirements that go into effect on July 1, 2015.

On September 9, 2014, the governor signed AB 2053, which requires that mandatory sexual harassment training include information about bullying. More specifically, the training must “include prevention of abusive conduct as a component of the training.” The bill describes “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.

I have no objection to employers encouraging employees to behave civilly. But I worry that this is a step towards legislation allowing employees to sue if they aren’t the victim of actionable harassment, but perceive themselves as being bullied. There will always be conflicts in the workplace (and other places where humans interact) and it isn’t hard to imagine some of those involved in these conficts portraying themselves as victims of bullying, especially if there’s financial incentive to doing so.

OLYMPUS DIGITAL CAMERA

Also on September 9, 2014, Governor Brown signed AB 1443 extending the Fair Employment and Housing Act’s protections to unpaid interns and those in apprenticeship training programs. Both AB 2053 and AB 1443 take effect on January 1, 2015. So employers should plan to update their employee manuals and harassment training before then.

From the employer’s perspective, the only way to truly “win” an employment case is to avoid it in the first place. We litigators love the thrill of gettting a judge, arbitrator, or jury to decide in our client’s favor. But it can be awfully expensive to get to that point. So without further ado, here are ten commandments for avoiding employment litigation in California.

I. Thou shalt pay employees for all hours worked and provide them their breaks. It’s hard to think of a large employer in California that hasn’t spent gobs of time and money litigating this issue.

II. Thou shalt not treat nonexempt employees as exempt. This is another wage and hour issue that has given rise to thousands of class action claims.

III. Thou shalt not treat employees as independent contractors. Multiple government agencies are reviewing this issue in an effort to collect unpaid taxes.

IV. Thou shalt engage disabled employees in the interactive process. This is one of the hot areas in employment litigation. Failure to comply is, by itself, a violation of the Fair Employment and Housing Act.

V. Thou shalt pay attention to the unique legal requirements of the localities thou operates in. Following federal law isn’t enough. Even following California law isn’t enough if you’re operating in a locality, like San Francisco, with its own requirements.

Moses with the Ten Commandments VI. Thou shalt train thy managers to comply with applicable laws. Having the best policies in the world won’t protect a company if its managers don’t know how to implement them or whom to turn to with issues. This is especially true for harassment training (which is mandatory in California for employers with 50 or more employees).

VII. Thou shalt properly document the steps thou takes. I completed an arbitration last week that, because an issue went up on appeal, took place four years after the decisions in question. Notes of key conversations are critical in these situations.

VIII. Thou shalt require employees to waive class actions and arbitrate disputes. The law is now clear in California that, with an appropriate arbitration agreement, you can require employees to waive their right to class-wide relief. There are still open issues regarding collective actions under California’s Private Attorney Generals Act, but protection against class actions can still be of great value.

IX. Thou shalt provide employees an up-to-date employee handbook.

X. Thou shalt stay up to date regarding ever-changing legal requirements. One way to do that is to subscribe to this blog.

Another way to avoid litigation is to consult an employment lawyer (like me or my colleagues) before making decisions that may result in litigation. It’s frustrating to see companies spend years and hundreds of thousands of dollars litigating issues that could have been avoided with a phone call. So next time you confront these issues, make the call!

Before we blink it will be the end of the year, so don’t forget that 2013 is a sexual harassment prevention training year for many California employers. If you started training in 2005 when AB 1825 became effective, then every odd year is the time to re-train all managers and supervisors. Training must be 2 hours every 2 years, and within 6 months of hire or transfer to California.

I have been conducting training for many clients since 2005. For some loyal clients this year it was my 5th time training the same group! It can be hard to keep the same material fresh and relevant, but this year, I simply looked to the headlines.

Of course, the most relevant headline this year was former San Diego Mayor Bob Filner. Mayor Filner’s story is an excellent vehicle to discuss many harassment issues including:

  • If the allegations are true (such as the alleged suggestion that the employee work without panties, or attempted sloppy kisses, or repeated requests for dates), is that “severe” or “pervasive” under the law?
  • How does a he-said vs. she-said situation change when others speak up with similar allegations? How many people need to speak up to make the allegations more believable?
  • What is the relevance of such “me-too” evidence? What should it be?
  • Does it matter if the alleged harasser did not undergo mandatory harassment training? Should it?
  • What is the duty of an employer to indemnify a manager for a lawsuit brought by an employee? What should it be?
  • Was it fair that alleged conduct in violation of a harassment policy can cause someone to lose his or her job? What is an employer’s obligation to protect its employees vs. the alleged harasser?

The alleged facts and the issues raised in the Filner saga are excellent fodder for discussion, and remember, the training is supposed to be interactive. So don’t forget to train your managers in 2013 and keep it interesting for them by looking to the headlines.