Legal Alerts Dec 05, 2017

Addressing Workplace Harassment in an Age of Heightened Awareness

Four Steps Employers Can Take Now

The hashtag #MeToo started a long-overdue, nationwide conversation about sexual harassment. It is a source of strength for those who have suffered silently, and revelations about new high-profile harassment cases are emerging weekly. Harassment in the workplace is a real and pervasive problem. In opening its 2016 Annual Report, the California Department of Fair Employment and Housing asserted that, “Sexual harassment cases remain prevalent across industries and economic sectors . . . .” (Emphasis added.) Ignoring or mishandling claims can devastate morale and result in costly litigation.
Now, more than ever, responsible employers are taking steps to ensure a harassment-free workplace. Below are four fundamental actions every employer should take:
Effective Policies
Employers must adopt a clear and easy to understand written policy prohibiting all forms of harassment, as well as a clear and effective internal complaint procedure. California regulations govern what must go in your harassment policy. These regulations were amended by the DFEH in April of 2016. If your current policies have not been revised since then, they are likely out of date.
Your policies are worthless unless employees know of them and they are enforced. The 2016 regulations included requirements that the policies be distributed to all employees and that they be provided in other languages if spoken by at least 10 percent of the workforce.
Depth of Bench
Inexperienced businesses sometimes do not recognize the value of an experienced and skilled human resources department. Human resources professionals ensure compliance with a whole host of state and federal laws. Experienced and certified human resources professionals must be familiar with legal standards, training obligations and routine workplace investigations.
Complex or sensitive harassment investigations should be handled by an experienced employment attorney. Per California’s Business and Professions Code, workplace investigations may be handled only in-house or by an outside attorney or a licensed private investigator. Unlicensed human resources consultants cannot legally conduct workplace investigations. Many attorneys list “employment law” as one of many areas of practice without having experience performing workplace investigations. When an outside professional is required, consider an investigations specialist, such as those belonging to the Association of Workplace Investigators.
Two hours of harassment prevention training every two years is required for employers who have 50 or more employees or independent contractors in California, as mandated by AB 1825 and AB 2053. As of Jan. 1, this training will now include a component addressing gender identity, gender expression and sexual orientation under SB 396, signed into law this year. Training must occur within six months of a new employee taking a position as a supervisor or manager. Such training is typically best practice for all employers, even if not mandatory. In fact, many businesses now require a shorter version of the training be to given to all non-supervisory employees.
The DFEH also recommends that human resources personnel receive specialized investigation training. (See DFEH’s “Workplace Harassment Guide for California Employers,” 2017.) Such training covers scope of investigation, effective interviewing, weighing credibility, analyzing information and report drafting. On the private side, the DFEH’s Guide is a good brief resource. Public employers should consider the California Public Employee Relations’ “Pocket Guide to Workplace Investigations.”
Needs Assessment
Lastly, employers should be proactive. A needs assessment is a process for determining the performance gaps for achieving a diverse and harassment-free workplace. They often include audits and surveys that help the employer identify issues and training shortfalls to be addressed moving forward.
If you have any questions about best practices in workplace harassment training or investigations, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Labor & Employment practice group, or your BB&K attorney.
BB&K regularly holds sexual harassment avoidance training webinars – be sure you are subscribed to receive notifications and to learn about other events, including our annual Labor & Employment Law Update webinar, coming Jan. 9. Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Facebook @BestBestKrieger and on Twitter @BBKlaw.
Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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