And one can hardly forget the steady stream of business executives, entertainment moguls, and political leaders scandalized their organizations with outrageous details of men behaving badly. So where have employers, and those who work with them to get it right, gone wrong? Why are the herculean efforts of HR departments calming the rising tide of harassing behavior?
The answer is that we are focusing too much on what not to do under the law (and what we have to do to have a potential defense to liability), rather than providing employees and their managers with tools on how to create positive work relationships and foster psychological safety in their work groups. To be sure, harassing behavior is more than the product of a bad employee; it is symptomatic of a toxic work environment. In such environs we often find:
Although there can be much discussion on the cultural causes of sexual harassment, what is clear is that workplace harassment allowed to ferment is the source of serious liability to business. It can be a sales dropping, share price lowering, brand tarnishing business killer. The #Metoo movement is a paradigm shift and call for a new approach to tackle this problem.
The good news is that we have a number of innovators who are solving parts of the problem, and their work can be brought together to form a new training regime that works to prevent harassment. I commend to you Professors Christine Pearson and Christine Porath and their work, “How incivility is damaging your business and what to do about it.” Leonardo Inghilleri’s work on training empathic skills to hospitality employees, and of course Google’s Project Aristotle and its steps for developing effective teams.
So, what is working? Training that includes protocols which teach employees and more importantly managers on how to foster good working relationship in their workgroups. We recommend revamping sexual harassment avoidance training to include 6 protocols.
A prevention program built around these principles will help employers to do more than just comply with the law – it will reinforce the notion that everyone plays a critical role in preventing workplace harassment (or any other kind of misconduct for that matter) and creating a successful workplace culture. It will also empower employees with the tools to step in and stop it. These, in turn, will help employers to achieve their business goals – from decreasing harassment occurrences to improving performance and morale. It is hard to argue against such benefits. It is clear, change is rapidly occurring and this next generation workforce is not silent.
]]>requirements on employers, in hopes of giving #MeToo a significant, lasting effect. So, what should employers in New York and California do now? And, given that these states are often at the forefront of labor and employment issues, how should employers outside New York and California prepare in case new laws are passed in their states?
New York’s New Anti-Sexual Harassment Laws
On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 New York State Budget, updating the state’s sexual harassment laws. Among other changes, there are two key components under these laws. First, every employer in New York must establish a sexual harassment prevention policy. These policies should have already been adopted and provided to all employees by October 9, 2018. The New York Department of Labor and New York Division of Human Rights have established a model sexual harassment prevention policy for employers to adopt. But employers are not required to use this model, so long as their policy meets or exceeds the minimum standards of the model and set forth in the laws. Employers must distribute the policy to all employees in writing or electronically, and must ensure that all future employees receive the policy before they start work. Additionally, employers are encouraged to post a copy where employees can easily access it.
Second, every employer in New York is required to provide employees with sexual harassment prevention training. Again, the New York Department of Labor and New York Division of Human Rights have developed model training for employers to use. Though employers are not required to use the model, they must ensure that their training program meets or exceeds the minimum standards of the model, and includes the specific minimum requirements set forth in the laws. All employers are required to train current employees by October 9, 2019, and new employees should be trained as quickly as possible upon hire. In addition, all employees must complete the training at least once per year. There is no certification requirement for trainers, and employers may use third-party vendors to deliver the training.
Importantly, employers in New York should also be mindful of the mandatory arbitration and nondisclosure agreement prohibitions that went into effect this summer, on July 11, 2018. Under New York’s new anti-sexual harassment laws, a contract cannot contain any clause that requires mandatory arbitration to resolve sexual harassment claims. Unless one of the limited exceptions applies, such clauses will become null and void. Furthermore, with respect to nondisclosure agreements, the new laws have established a three-step process for memorializing the complainant’s preference for entering such an agreement. Under the new laws, a nondisclosure agreement is defined to include any resolution of any claim involving sexual harassment that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment. While the new laws generally ban such nondisclosure agreements, they are not prohibited where a complainant expresses a preference for entering into one.
Where the complainant asks for a nondisclosure agreement, the following process must be observed:
Importantly, this process requires the execution of two documents: (1) the agreement memorializing the complainant’s preference; and (2) the document(s) incorporating the preferred term or condition agreed upon. Suffice it to say, through policies, training, and contract clauses, the legal landscape has changed for employers in New York, and the effect of #MeToo and increased awareness of this issue are apparent.
New Anti-Sexual Harassment Laws in California
Similarly, in California, employers are also adjusting to new sexual harassment laws. For example, by January 1, 2020, employers with at least five employees must provide: (1) at least two hours of sexual harassment prevention training to all supervisory employees; and (2) at least one hour of sexual harassment prevention training to all non-supervisory employees. Training must be conducted within six months of the employee starting the position, and must be provided once every two years thereafter. Additionally, California has enacted a law regulating provisions set forth in settlement agreements related to sexual harassment, including nondisclosure clauses. Among other things, the new law prohibits a provision that prevents the disclosure of factual information underlying the allegation of sexual harassment upon which a settlement agreement is based. Such provisions entered on or after January 1, 2019, will become void as a matter of law and as counter to public policy.
But perhaps the most significant change has had less to do directly with sexual misconduct and harassment, and more to do with empowering women in the workplace. California has become the first state to require publicly traded companies to include women on their boards of directors. Signed by California Governor Jerry Brown on September 30, 2018, California Senate Bill 826 requires there to be at least one female director on the board of each California-based public corporation by the end of 2019. Also, depending on the number of board seats, companies may be required to have up to three female directors by the end of 2021. Companies are required to report their board composition to the California Secretary of State, and may be fined $100,000 for a first violation, and $300,000 for subsequent violations. Though not as directly linked to sexual harassment as the other laws discussed above, it will be interesting to see how an increase in the number of women on boards of directors in California will change things – at the state and national levels.
Thus, a year after the #MeToo movement went viral, we are seeing the movement change from something that caused greater awareness of an issue, to something that is being acted upon by way of law. Legal obligations are changing, and employers must be extra diligent to ensure compliance. As such, employers are advised to keep a pulse on current or proposed anti-sexual harassment and related laws and the extent to which their current policies and practices may be affected. Legal changes in California and New York tend to create models for other states, some of which may already have their own anti-sexual harassment laws in the works. Furthermore, employers in New York and California should update their sexual harassment policies and training programs accordingly, and make sure to distribute the policies and implement the programs as required. They should also develop a strategy to incorporate any changes that may affect contract provisions, such as nondisclosure and mandatory arbitration clauses. And, at least in California, publicly traded companies should start thinking about who will fill those female board director seats. While there are numerous other requirements pertaining to sexual misconduct and harassment that employers must be mindful of, states like New York and California have certainly begun to give the #MeToo movement a more significant and sustained impact.
About Conn Maciel Carey
Conn Maciel Carey is a boutique law firm focused on Labor & Employment, Workplace Safety, and Litigation. The clients we serve — from multi-national organizations to individuals — seek us out for strategic guidance ranging from day-to-day employment counseling to managing government regulatory investigations to leading complex litigation. What sets us apart is our special emphasis on workplace challenges, our creativity in crafting positive solutions, and our passion for serving our clients’ interests.
Based on these trends, we predict substantial increases in the number of individual employee claims and government-backed investigations over the next several years. And, we expect that the hospitality industry will be a prime target. This is so because the hospitality industry touches virtually every person in the country in some way on a regular basis, and many hospitality employees are often young, transient, and looking for only temporary, part-time, or seasonal work. If your company works or contracts with the federal or a state government, an investigation or subpoena is even more likely. Hospitality companies should expect that it is a question of when—not if—they will become involved in some sort of investigation or litigation. So, what should you do to protect your company before and after the law comes calling?
Create a Paper Trail
An ounce of prevention is worth a pound of cure. The single greatest – and by far the most dangerous – pitfall for a company faced with a subpoena, government investigation, or litigation is incomplete record keeping or insufficient record retention. Even if a company has done everything right, it may nevertheless face substantial risk if it cannot prove it. It is, therefore, critical for companies and their corporate counsel to maintain detailed and accurate records of employee complaints, management and employee training, schedules, hourly rates, payroll and tips, and disciplinary action, among many other things. Without detailed records, companies could be facing an uphill battle in any investigation or litigation. Therefore, it is critical that companies create and maintain accurate records. Practicing good record retention is the best way to protect the bottom line.
Walk the Walk
Perhaps the most avoidable mistake a company may make that can lead to a lawsuit or government investigation is to ignore bad behavior or trivialize an employee or customer complaint. If an employee informs a supervisor that they have experienced sexual harassment or discrimination or they are concerned that they are being paid less than another employee for performing the same work: listen, investigate, document, follow up, and follow through. Following these simple steps is preventative as well as remedial. A company can avoid a lawsuit or investigation by taking appropriate action in response to a complaint, and an investigation is less likely to lead to liability if the company can prove that appropriate action was taken.
Lawyer Up
Successful companies have good relationships with their lawyers, particularly in the hospitality industry. A brief check-in with corporate or outside counsel on day-to-day issues can identify areas of risk and solve small problems before they become big headaches, all at a very low cost. And corporate counsel, when not familiar with particular areas of law or potential recent developments, should not be afraid to ask for help from outside counsel. Often, lawyers provide free updates or publications to their clients on changes in the legal landscape. And, when a lawsuit or investigation commences, having a trusted outside counsel that knows your company, understands your corporate policies and company atmosphere, and is invested in a long-term relationship can be a major benefit to your company and its bottom line.
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