We all know that it’s coming, and there is nothing that we can do to stop it. January 1. New Year’s Day. A time to reflect. A time to turn our attention to making “changes” that we know we need to make. New Year’s resolutions. Eat better. Exercise more. Unplug from the Matrix! Easy to say, but often difficult to do. Like Jerry Seinfeld once said: “You know how to take the reservation, but you don’t know how to hold the reservation. And that really is the most important part of the reservation!”
The same is true for employers across the country. You know that there are things that you can and should do to limit your potential liability for employment-related claims. You often commit to doing these things, but either don’t follow through or find some excuse for not doing them. Here is one New Year’s resolution that is a MUST for all employers in 2020.
Train your employees. I don’t mean to train them with respect to how to make widgets or how to operate machinery. I mean, train them in the critical areas of employment law. When is the last time that you conducted harassment training for your employees? In light of the #MeToo movement, harassment training has become even more critical to protecting employers from potential liability. The only way to establish the affirmative defense to harassment liability is to show that you did two things: (1) took reasonable steps to prevent harassment in the workplace; and (2) took prompt and appropriate corrective action once you had knowledge of the harassment complaint.
In order to establish that you took reasonable steps to prevent harassment, you must be able to show that you “regularly train your employees with respect to harassment.” Regular training is not once every 2 or 3 years. In order to show that your business is committed to preventing harassment at work, you will need to show that you conduct at least annual harassment training.
Sticking your employees in front of a computer for on-line harassment training, however, will not satisfy this requirement. In the EEOC’s “Guidance on Harassment,” it has clearly warned employers that on-line harassment training is not sufficient. According to the EEOC and some states that have adopted mandatory training statutes, in order to be effective, harassment training must be “interactive” and conducted by a live instructor who can answer questions from attendees and involve them in hypothetical situations or role-playing exercises. This type of “live” training forces attendees to be involved in the training, to think about the issues, and to answer questions. They cannot simply turn off the volume and click their way to a certificate of completion.
Your harassment training also has to be tailored to the appropriate audience. Supervisors and non-supervisors should not receive the same training. Although many of the issues will be the same, supervisors require specialized training that teaches them about their obligations to protect employees from harassment and to take prompt and appropriate corrective action in response to complaints. Supervisors not only need to know what harassment is, but they must also understand that they play a critical role in the prevention and elimination of harassment in the workplace. They must understand that failure to satisfy these responsibilities could lead to potential personal liability.
Finally, in order to be effective, the training must devote the necessary time actually to cover the subject matter. Thirty minutes is not enough. This is not a tanning session or a nail appointment. It is not a pizza delivery guarantee. At a minimum, your non-supervisor training must be at least one hour, and your supervisor training needs to be two hours. Anything less is nothing more than window dressing, and the EEOC will view it as such.
Beyond harassment training, have you trained your supervisors with respect to how to be a good supervisor? Have you provided your supervisors with any training in these critical areas: interviewing, handling employee complaints, investigations; performance evaluations; ADA and FMLA issues, disciplining and terminating employees; and the importance of proper documentation? When you hired someone as a supervisor or promoted someone from a non-supervisory position, did you simply assume that they knew how to be a good supervisor? Did you assume that they had all of the skills necessary to effectively manage other employees? Did you assume that they could just figure it out? I am sure that I don’t need to remind you what happens when you assume things.
Most new supervisors have no idea how to interview potential employees, how to conduct a proper workplace investigation, or how to prepare a performance evaluation. They also don’t understand how asking the wrong question in an interview, botching an investigation, or creating an inadequate performance evaluation can result in significant potential liability for the employer.
Supervisors everywhere are busy. It is a universal truth. Because of this, they often fail to document critical employment-related issues: performance counseling, behavioral problems, disciplinary steps; employee meetings; and many others. Unfortunately, when faced with an employment-related claim, this documentation is absolutely critical to protecting the employer from liability. Without it, the employer’s ability to defend itself (and its supervisors) will be significantly limited.
The only way to ensure that your supervisors have these critical skills and understand the importance of these critical issues is to train them. Yes, the training will undoubtedly have a cost. Yes, it is easy to convince yourself that you don’t need it. Yes, you’ve gotten this far without training, and its never been a problem. In this regard, however, I have a saying that I frequently share with employers: “It’s not a problem until it is. And when it is, it will undoubtedly be a BIG problem.”
Happy New Year! Time to go. I’m meeting a friend for lunch (salads) and then I have to hit the gym. Time to eat better and exercise more!