Last week, we posted about getting back on track with your New Year’s Resolutions. Remember those resolutions? Maybe, by now, you have reviewed or had your anti-discrimination and harassment policies reviewed to make sure they are up to date and legally sufficient to help you establish an affirmative defense in the event an employee brings a claim of harassment or discrimination. If not, it is never too late to do so.
The next step should seem logical – make sure all of your employees are aware of the company’s anti-discrimination and harassment policies. If the policy was updated, employees should be given a copy of the new policy and required to acknowledge receipt of the policy and their obligation to comply with the policy. Even if the policy was not updated, it is always a good idea to periodically reissue the policy and have employees again acknowledge receipt. Keep the acknowledgments in the employees’ personnel files – you never know how many years from now you might need to prove that your employees were aware of the policy.
In addition to issuing the policy, it is also a good idea to train your employees on all aspects of the policy – especially how to file a complaint. California, Maine and Connecticut have mandatory harassment training requirements. If you have employees in California or Connecticut and have a total of at least 50 employees (regardless of where located), then you are required to provide supervisors with training. For California [pdf], your California supervisors must have two hours of interactive training every two years. In Connecticut, your Connecticut supervisors must have two hours of training within six months of their assumption of a supervisory position. If you have 15 or more employees in Maine, you are required to provide harassment training to all new hires within one year of hire. For Maine supervisory personnel, in addition to the harassment training given to non-supervisory employees, the training must detail the corrective action that should be used to respond to complaints.
Even if you are located in a state that does not have mandatory training, it is still a good idea to provide periodic training to refresh employees’ knowledge of the policy or to insure that new employees are aware of the protections and obligations imposed by the policy. A recent Utah decision reiterates that providing training can be one factor in an employer’s favor in determining whether the employer can establish the Faragher/Ellerth defense. By contrast, the failure to provide training may be used by a Court to determine that an employer cannot establish the Faragher/Ellerth defense, even where an employee acknowledged receiving the policy.