How to Provide the Best Harassment Training to Your

Workforce

February 17, 2011

Ben Webster, Esq.

• Office Managing Shareholder of Littler’s Sacramento Office

• Over 20 years of defending employers in labor/employment lawsuits in state and federal court, before agencies, and in mediation and arbitration, including cases involving all types of discrimination, harassment, and retaliation; wrongful termination; unfair competition; wage/hour class actions.

• Also advice/counsel, training, and workplace investigations.  

Reid Bowman, Esq.

• General Counsel of ELT

• Over 25 years of HR and labor employment law experience, primarily working with multi-state employers

• Designs strategic ethics, discrimination prevention, and employment law compliance programs

Perspective

Training Becomes the Law:

Federal Law

State Law

Answers to the Most Burning Questions

What to Do Now

AGENDA

Some Perspective: Some Perspective:

EEOC Charges Continue Three Year Record Pace

Source: www.eeoc.gov

99,022

80,680

Last year saw 11,717 sexual

harassment charges filed with the

EEOC…but

The total number of charges filed

alleging any kind of harassment was

almost 31,000!

Most common claim filed with the EEOC continues to be Retaliation!

Source: http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm

Harassment Charges Continue at a Brisk Pace

Training Becomes Training Becomes

the Law the Law

Federal LawFederal Law

U.S. Supreme Court Decisions

Faragher and Ellerth (1998)

• Workplace Harassment vs.

Sexual Harassment

• Train Everyone

• Train Periodically

• The Affirmative Defense

• Policy

• Education

U.S. Supreme Court Decisions

Kolstad (1999)

• Workplace discrimination

training (not just harassment)

•Good faith efforts to educate

all managers on basic anti-

discrimination principles, or

“Title VII”

• Policies are not enough

• Punitive damage defense

1999 EEOC Enforcement Guidelines

“[T]he employer should provide training to all employees to ensure they understand

their rights and responsibilities [concerning workplace harassment]…

Source: Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (6/18/99)

The EEOC and State Agencies Expect Training

• If you are trying to resolve a case with the EEOC, evidence of harassment training is extremely important.

• Information about training is a standard inquiry for many state agencies (e.g., DFEH).

• Consent decrees routinely include training mandates: – Generally require manager

training.– Often include all employee

training.

Choosing Not To Train Is ExpensiveEmployers pay the price if they don’t train:

EEOC v. RMG Communications, LLC , 2009 U.S.

Dist LEXIS 100930 (S.D. Ind. 2009). Company

remained liable for punitive damages for disability

disc claim, where company failed to provide training

regarding disability discrimination prevention.

Bains v. ARCO Prods. Co., 405 F.3d 764 (9th Cir.

2005). Plaintiffs were originally awarded $1 million in

compensatory damages and $5 million in punitive

damages for failing to train on harassment.

Swinton v. Potomac Corporation, 270 F.3d 794

(9th Cir. 2001). Lack of manager training justified a

punitive damage award of $1 million in a single

plaintiff case. Having a policy alone is not sufficient.

The Power of Training

8th Circuit Court of Appeals held that punitive damage award was not appropriate because the employer demonstrated good faith, which included requiring supervisors to go through harassment

training.

Dominic v. DeVilbiss Air Power Co., (8th Cir. No. 06-3236 2007)

State LawState Law

Early Beginnings: ME (’91) and CT (’93)

ME requires employers:

– With 15 or more employees;

– To conduct sexual harassment training for all new employees;

– Within one year of employment commencement.

CT requires employers:

– With fifty or more employees;

– To provide two hours of sexual harassment training;

– To all supervisory employees;

– Within six months of the assumption of a supervisory position.

A Brief Recap of AB 1825

• Requires employers who do business in California, and who have more than 50 employees, to provide 2 hours of high quality, “interactive” harassment training to all supervisors.

• First training deadline was December 31, 2005.

a

I’m Finalizing my 2011 Re-training Planning

What Does AB 1825 mean to me?

a

2011 Re-Training Mandate

• Training must be repeated every two years, making 2011 a “re-train” year for most organizations.

• Newly hired or promoted supervisors must be trained within six months of the assumption of a supervisory position.

The Most Burning The Most Burning

QuestionsQuestions

Question #1

Who can Who can develop and develop and

conduct conduct training?training?

A Question for You

Harassment training at my

organization is:

A. Developed in-house

B. Purchased from outside

vendors

C. A combination of both

Three Categories of Qualified Trainers

1. Attorneys – Admitted to the bar, with 2 or more years of employment law practice

2. HR Professionals – 2 or more years of practical experience in one or more of the following:

- Designing training

- Responding to harassment complaints

- Conducting investigations

- Advising employers about harassment prevention

Three Categories of Qualified Trainers

3. Professors and Instructors – Graduate degree or California teaching credential, and either 20 instruction hours or two or more years of experience in a law school, college, or university teaching about employment law.

Team Training is Allowed

• Individuals who do not meet the expertise criteria may :

“… team teach with a trainer in classroom or webinar trainings, provided that the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees.”

What About e-Learning?

• A qualified trainer must have developed and consistently update the online program.

• A person who meets the qualified trainer definition must be available to answer questions submitted by learners.

Best Practice

• “Know thy trainers and vendors.”

• Ask tough questions.

• Are you comfortable with your trainer or vendor being cross-examined:

– About their credentials?

– About the actual involvement of a harassment expert in the program’s development?

• Has the training been the subject of an independent legal review? (e.g., EEOC)

• Beware of generic training providers.

Question # 2

What does “interactive” What does “interactive” really mean?really mean?

Interactivity Requirements for All Forms of Training

All forms of training should include: – “Questions that assess learning” and

– “Skill-building activities that assess the supervisor’s application and understanding of content learning”; and

– “Numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain measurably engaged in the training.”

Interactivity Requirements for e-Learning are Further Detailed

• Self-Paced Learning– Learners must have the

opportunity to ask questions during the training.

• “An e-learning program shall provide a link to or directions on how to directly contact trainers or educators, either working for the employer or retained by the e-learning provider.”

Interactivity Requirements for e-Learning are Further Detailed

Self-Paced Learning:

– Learner questions must be responded to “within a reasonable period of time” and within “no more than two business days” after a question is asked.

– The person who answers the question must be a qualified trainer.

– Be cautious with outsourced Q&A services.

Survey Results

My organization would rely on an outside training vendor to answer

questions that arise during e-learning:

A. Yes (9%)

B. Maybe, if the vendor could demonstrate appropriate legal expertise (41%)

C. No, all questions would be routed internally (50%)

Best Practice

• A good e-learning program should be able to respond to a large volume of questions in real time.

• Use internal resources to respond to questions that go “beyond the program”:

– A vendor may not have the appropriate knowledge / resources.

– Questions may require specific knowledge of the organization’s policy and internal practices.

– A question could contain a harassment complaint requiring an investigation.

• Failing to respond could create liability.

• Issue: Discoverable?

Question # 3

How are two How are two hours of hours of e-learning e-learning

measured?measured?

Policing Time – 2 Hours Means 2 Hours

E-learning programs must have confirmed run times of at least 2 hours.

• Option 1:

– An enhanced audio version of the course that takes at least 2 hours to complete based on mandatory audio files• Can you run extensive audio?

• Are you OK with the “read to” approach?

– An audio or non-audio course with a built in, paced “timer” that requires learners who complete in less than two hours to continue viewing training content.

• Not all timers are created equal. A timer should be a safety net, not a “stretcher.”

• Counting active training time or browser time?

• Able to properly bookmark?

Policing Time – 2 Hours Means 2 Hours

Option 2:

Question # 4

If a two hour If a two hour program covers program covers

more than sexual more than sexual harassment, will harassment, will

it comply?it comply?

Training Can Go Beyond Sexual Harassment to Cover Other Protected Categories Within the 2

Hours

• Statute requires practical examples re: the prevention of “harassment, discrimination, and retaliation.”

• Regulations permit the discussion of: – Other protected categories; – How harassment of an

employee can cover more than one basis.

Best PracticeCover: All protected categories --

• Faragher defense to multiple forms of harassment (fed law)

• EEOC Guidelines (fed law)Cover: Discrimination and Retaliation --

• Referenced by AB 1825• Kolstad defense (fed law)

Cover: Cutting edge issues -- • Facebook, texting, iPads, blogs, etc.

Cover: EEOC trends -- • Harassment claims other than sexual

harassment, and retaliation claims, are on the rise.

Follow-Up Questions

• Some vendors have recommended programs longer than 2 hours. If my program is 120 minutes, and not a second more, do I comply?

• Can I do a more condensed program for executives?

• Does training have to reference exact statutory language and include case law citations?

A Question for You?

If your organization is currently training on WPH in more than one state, does your organization:

1. Train everyone consistently.

2. Train differently depending on what state the learner works in.

Question # 5

What are What are organizations organizations

doing doing nationally?nationally?

Does AB 1825 Really Have Any Impact Outside of CA?

• Yes. California is setting the standard for “effective” compliance training programs for the rest of the country.

• The risks of inconsistency

• Federal guidelines (USSC, EEOC, & FSGs) strongly promote mandatory training for all employees and managers.

• “Periodic” and “effective” are shared terms.

Training Becomes the Law

1991 1993 1998 1999 2002 2004 2005 -2010

2011-------

ME

CT

Faragher

EEOC

Kolstad

NJ

AB 1825

1825 Regs

National?

FSGs

= Federal training laws, not just CA

training

= All employees, not just supervisors

National Trends:ELT Survey

• Training beyond sexual harassment (91%)

• Training all employees, not just supervisors (50%)

Question # 5

What happens if I What happens if I don’t comply?don’t comply?

National Trends• Penalties? AB 1825 has no penalties, but what is the

real risk?

• DFEH: Details of the employer’s training efforts are part of the standard inquiry when investigating a complaint.

• EEOC/Courts: Training is expected (fed laws). Training is also a standard part of settlements and remediation. Training specifics are mirroring the CA standards. (2 hrs)

Will you become a target for plaintiffs’ counsel?

Question # 7

Can ROI be Can ROI be measured?measured?

ROI Considerations

• How many claims annually to your HR / legal departments?

• How many people hours to resolve?

• What percentage of claims turn into litigation?

• What percentage settle? What percentage go to trial?

• What are the hard and soft costs?

Independent ROI Study

• Complete curriculum of ELT / Littler classes• 37% decrease in employment law related claims • Saved the state an estimated $2 million per year

(hard costs) • Soft cost savings are exponentially higher• http://www.elt-inc.com/about/

demonstrated_ROI.html

Additional ROI

Improved morale

Increased productivity

Better retentionEasier to

recruit

What To Do NowWhat To Do Now

A Question for You?

Which best describes your organization’s harassment training efforts:

1. Not thinking about it yet

2. In the process of reviewing options

3. We’ve selected a resource but are waiting to implement

4. Already started training

ELT Survey Results

At my organization, the time

frame to deploy training is:

A. 1-3 months (37%)

B. 4-7 months (47%)

C. 8-12 months (15%)

D. 1 year+ (2%)

Training Solutions• Live training:

– Instructor led and tailored to audience (i.e., senior leaders)

– When highly customized materials required• E-learning: 40%+ (and growing) of employers today

chose e-learning solutions.– Interactive and engaging – hands on experience– Creates electronic records and employee

acknowledgments – Significant cost savings– Easy to reach bulk of managers and employees –

repeatedly– Ensures exposure to policies– Content can be duplicated for evidentiary purposes.

View a demo: www.elt-inc.com.

Don’t Delay

•Developing or procuring

training can take months.

•Deploying training and hitting

100% completion can take

months.

•The Obama Administration’s

enforcement team is in place,

and California’s training laws

require immediate action.

A Question for You…

If your organization may be

interested in purchasing ELT’s

online training solutions, and

you would like an ELT Sales

Executive to follow up with you,

type "YES" in the box below.

Additional Questions?

Ben Webster

bwebster@littler.com

Reid Bowman

rbowman@elt-inc.com

www.elt-inc.com

Interested in our solutions? info@elt-inc.com

How to Provide the Best Harassment Training to Your Workforce

Thank YourAll attendees will receive a follow up email within 48 hours with the webinar materials and the HRCI code.