Late last month, we previewed our upcoming series of blog posts discussing Employee Handbooks – What’s New and Why Does it Matter? If you happened to read that post, then you know we introduced the topics for parts one through six of our handbook series. We will now embark on part one of our journey to the land of employee handbooks. This journey will have several other stops along the way, but for now our topic is anti-harassment policies and training in the #MeToo era.
Nowadays, if you mention the words ’employee’ and ‘harassment’ in the same breath, most people immediately think of the #MeToo movement. The #MeToo movement has raised public awareness and significantly altered our public conversation about sexual harassment. Indeed, women (and men) have become more empowered to raise their voices in the face of possible harassment, whether at work, on the street, or in everyday interactions with other human beings. And #MeToo’s impact on the workplace is reflected not only in the uptick of sexual harassment litigation (see EEOC press release noting that the EEOC filed 41 lawsuits alleging sexual harassment in FY2018, which represented a 50 percent increase from the prior fiscal year), but also in legislative action at the state and local level. It is therefore essential that every employer review whether their anti-harassment policies are both compliant with any changes to the law in the jurisdictions in which employers operate and reflective of the cultural shift in how employers are expected to respond to allegations of sexual harassment.
This compliance review should not only be led by your HR team, but also by your C-suite, as everyone has a role to play in this compliance review. How you go about bringing everyone to the table will depend largely on your organizational structure and culture, so you’ll need to develop a strategy for getting everyone to buy in to the importance of this review. But as I said in our introductory blog, a properly drafted handbook is one of many tools designed to protect a company’s assets by reducing possible class actions (yes, that means you pay people like me less often) and prevent the company from being named as a defendant in the next case brought by the various federal, state or local agencies charged with enforcing anti-harassment and non-discrimination laws.
Now that we’ve established what needs to be done (and you’re developing a strategy for getting it done), let’s turn to the actual drafting of the anti-harassment policy and the training on that policy. Under federal law, a business should have a policy that communicates behavior expectations for all employees (and others with whom employees have contact), provides examples of prohibited conduct, provides an effective complaint mechanism for those who experience potential harassment, and notifies employees that the business prohibits retaliation against anyone who uses the complaint procedure. A business is also best served by providing training to its workforce on that policy, which in some jurisdictions (such as California) is mandatory. Furthermore, if your business has operations in multiple states (whether those operations are large or even relatively small), you need to ensure that the anti-harassment policy in your employee handbook is compliant with any state or local laws and that you understand what, if any, training is required by those laws. While this blog is not designed to provide a comprehensive list of all relevant anti-harassment laws throughout the 50 states, a few of those laws are highlighted here.
New York State Since October 9, 2018, New York employers have been required either to adopt the model sexual harassment policy issued by the state or to create their own policy that includes at a minimum each element required by law. Some of those elements include providing examples of prohibited conduct, information about federal and state laws that protect against sexual harassment and remedies available, a procedure for the timely and confidential investigation of complaints that ensures due process for all parties, and clearly stating that sanctions will be enforced against anyone engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue. In addition, New York law requires employers to have a written form that employees can use to make a complaint (see the State’s model complaint form in the above link). That complaint form need not be in the actual policy, but employees must be notified of where the form can be found. New York law has also imposed a training requirement for employers, which will require training employees on an annual basis, effective October 2019. Again, the State has provided model training materials, but has not dictated that employers use those materials. If an employer chooses to create its own training that training must be interactive and include certain items specified by the State (many of which overlap with the items required in an employer’s sexual harassment policy).
New York City Last year the City took action similar to that of New York State on the issue of harassment training. If you’re an employer with at least 15 employees in New York City, effective April 2019, employers will have one year to implement anti-sexual harassment training for all employees, training that must be done an annual basis going forward. The City provides some flexibility to employers by allowing them to create their own training materials, but is also planning to publish model training materials (much like New York State) that employers can use to ensure compliance. Importantly, employers are required to retain a signed acknowledgement by each employee to show that the employee participated in the required training. (New York State has no similar mandate, but instead suggests having employees acknowledge participation in training – which, of course, you should and likely are already doing if you provide such training to employees.)
California This may be old news to some California employers but California regulations require that employers have a harassment, discrimination and retaliation prevention policy that identifies all protected classes under the Fair Employment and Housing Act. Consequently, employers cannot simply identify the protected classes under federal law and rely on the catch-all “or any other category protected by state or local law” to be compliant. The regulations also require, among other things, notifying employees of the process for filing a complaint with the Department of Fair Employment and Housing (DFEH) and the EEOC, the remedies available, contact information for both agencies, and the prohibition against retaliation. To ensure appropriate notice, these items should be contained within your anti-harassment policy in your employee handbook (that way you have a record of the employee receiving the information when he or she signs the handbook acknowledgment form). The California Fair Employment and Housing Authority (FEHA) has published a model EEO policy for employers. And while California has required employers with at least 50 employees to provide sexual harassment prevention training for all supervisory employees for over a decade, California law was recently amended to expand that training to all non-supervisory employees by January 1, 2020 for all employers with a least five employees. This training must be done within six months of hire or the person assuming a supervisory position. We’ve covered some of the training requirements in prior posts on our blog.
Delaware Effective January 1, 2019, employers with at least four employees in Delaware have affirmative obligations to distribute a state-issued notice regarding sexual harassment and to provide anti-sexual harassment training to employees. The Delaware Sexual Harassment Notice must be provided to all new employees and be provided to all of your current employees within six months of the laws effective date. The Notice can be found here. Satisfying this obligation should be easy enough, but employers should also review the sexual harassment policy in their employee handbook to see whether the policy addresses the items in the state-mandated notice. The training requirement is a bit more onerous (although it only applies to employers with 50 or more employees). The training must be provided to all employees, not just supervisory staff. Essentially the training must be provided to all existing employees sometime this year, and then every two years thereafter. New employees must be provided training within the first year of employment, and then every two years thereafter. For more information about the required elements of the training, visit the Delaware Department of Labor’s website or contact counsel.
Connecticut Similar to Delaware, Connecticut has a sexual harassment training requirement that applies to employers with 50 or more employees. Unlike Delaware, however, training is only required for supervisors, which must be trained within six months of their hire or elevation to a supervisory role. That training can be done online (although I find in-person training much more effective in ensuring you have the undivided attention of participants), but it must be interactive (such that employees can ask questions) and cover all of the items mandated by the State. The training must be at least two hours in duration. While state law does not presently require anything more than this one-time training, there has been activity at the state level suggesting that more onerous training requirements could be coming.
Maine Similar to other states, Maine places an affirmative obligation on employers to distribute a notice to employees about sexual harassment. Per the statute, the “notice must be delivered in a manner to ensure notice to all employees without exception, such as including the notice with an employee’s pay.” Rev. Stat. tit. 26, § 807. This notice must be distributed on an annual basis. Employers with operations in Maine may also want to include that same information in the anti-harassment policy in your employee handbook (or in an applicable state law addendum if you have operations in multiple states). In addition, employers with 15 or more employees in Maine are also required to provide sexual harassment training to all employees within the first year of employment. That training must include certain specified items (which mirror the items required under the other state laws mentioned above). The training of supervisory and managerial employees must cover those same items, but also address the additional responsibilities placed on supervisors and managers when they receive a harassment complaint or otherwise become aware of inappropriate conduct.
Massachusetts If you’re an employer in Massachusetts, then state law dictates that your harassment policy must contain certain affirmative statements. Many of those statements are likely already included in most harassment policies (e.g., a statement that sexual harassment is unlawful, it is unlawful to retaliate against an employee for filing a complaint or for cooperating in an investigation), but some may not be (e.g., directions regarding how to file an internal complaint and contact information for external complaints to appropriate state and federal agencies).
Illinois The Illinois Department of Human Rights (IDHR) has issued a notice to employers that “it is a civil rights violation…for an employer to fail to include in a posting on the premises, AND in an employee handbook, information concerning the rights of employees to 1 – Be free from unlawful discrimination or sexual harassment in the workplace; 2 – File a charge of discrimination or sexual harassment; and 3 – Obtain certain reasonable accommodations such as those based on pregnancy and disability.” [cite] While we will address that third requirement in a future blog post, for now let’s focus on requirements #1 and #2. Employers in Illinois need to ensure that they have the IDHR’s “You have a Right to Be Free of Job Discrimination and Sexual Harassment” poster information in their employee handbook. That poster can be found here.