Employment & Labor Insider

Maybe it's just me, but workplace harassment issues seem to come in waves -- I'll go months, or even a year, without an issue, and then WHAM! everybody has a "situation," or at least they need to get their preventive training done.

Right now, we're in a bit of a "flash flood," so I thought it might be a good time to review the basics, with some updates.

WHAT ARE THE FIVE HARASSMENT "MUST HAVES" FOR ANY EMPLOYER?

1. An effective no-harassment policy

2. Regular, high-quality harassment training

3. Prompt, thorough, and fair investigations of harassment allegations

4. Appropriate action based on whether the allegation is substantiated

5. No retaliation

What are the "must haves" for an effective no-harassment policy?

Here are mine:

1. It should cover all forms of unlawful harassment (for example, race, national origin, religion, age, and disability) and not just sexual harassment.

2. It should be written in plain English at a level that your least educated, least literate (short of being literally illiterate) employee will understand. At the very least, it should explain the following:

*The types of behavior that violate the policy, and the penalties,

*Where to go if the employee believes that he or she is being harassed, or that a co-worker is being harassed, and

*That no one making a good-faith complaint of harassment will be punished or penalized in any way for doing so.

3. It should be made available in all of the languages that your employees speak, in which case you may have to have it in "plain Spanish" instead of plain English. Or plain Chinese, or plain Serbo-Croatian. You get the idea.

4. It should designate more than just "chain of command" for reporting a harassment complaint. After all, what if the employee's supervisor is the harasser?

5. If you're a federal contractor, or if you operate in a state that requires it, or if you just want to do it even though you're under no legal obligation, the policy should prohibit harassment based on sexual orientation or gender identity as well as the "traditional" characteristics.

6. Employees should be required to sign for their copies of the policy, either with pen and ink or electronically. The signed acknowledgements should be stored in a secure place so that you use them in your defense if you get sued or get an EEOC charge.

7. If you have employees who are illiterate, go over the policy with them orally (in a language that they understand) and get an appropriate acknowledgement from them, too.

(There may be additional requirements based on the laws of the states where you do business.)

What are the "must haves" for harassment training?

1. Do it every 12-18 months, whether you need it or not. (That last part is a joke - you do need it that often.)

2. The first time you train your managers, have a session of about 2 1/2 hours, which covers the policy, some of the applicable law and scary jury verdicts (this helps them pay attention in class, te-he), the types of behaviors that are prohibited and allowed, and how they should handle complaints that they receive. Consider bringing in an employment attorney for this session (or using your in-house counsel, if you have it). Make sure that new hires get the training soon after they start work. (To control costs, you can consider videotaping your first session and using the replay version for later hires.)

3. After they've had their first "intensive" management session, the managers can graduate to short refreshers of about an hour every 12-18 months.

4. If you have "quasi-supervisors" -- group leads, foremen, team leaders, assistant supervisors, working supervisors, etc. -- either include them in the management training, or give them their own session but use the "management" version of the training. Even though people in these job classifications aren't true "management," they are often viewed that way by the other employees, who may not understand all of these workplace technicalities. Which means that "quasi-supervisors" are likely to get harassment complaints. You don't want them to mess this up.

5. Send everybody else through a "non-management" version of harassment training (with refreshers every 12-18 months), which covers (a) what behaviors are prohibited and the consequences, (b) how to report a harassment complaint, and (c) retaliation. These sessions shouldn't be more than 45 minutes to an hour, unless you operate in a state that requires more.

6. If you have a contingent workforce (such as temporaries who are technically employed by an agency), do still require them to go through your harassment training. Yes, even if the temp agency already provides the training! Temps are frequently victims of harassment by employees, because temps have the lowest status and some (bad) employees think they can get away with it. The temps are often afraid to report harassment for fear of being released from their assignments or not becoming eligible for hire. Similarly, independent contractors and student interns should be required to undergo your training.

7. If you have a multilingual workforce, make sure that whatever training you provide is meaningful to your non-English-speakers. It should be easy to get a trainer who is fluent in Spanish. With other languages, you may have to be more creative, but you should still be able to get it done.

What are the "must haves" for a prompt, thorough, and fair investigation?

It should be prompt, thorough, and fair.

(Kidding - come back next week, when we'll talk about investigations!)

. . . AND ALSO OF INTEREST . . .

Speaking of plain language, everybody needs to read this: "So you've reported an accident to OSHA. What happens next, and how do you respond?" by David Smith of our Atlanta office. Even if you aren't a safety geek, you'll feel like one by the time you're done. (And I mean that in a good way.)