By Mark A. Lies II
Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As the new year unfolds, many of us are making our resolutions. As an employer, the number one resolution should be to avoid liability. The concept is simple, but the implementation is frequently overlooked.
Is Your Workforce Trained?
The days of “ignorance is bliss” are long gone in the employment law, safety and health compliance, and employee privacy areas. The following areas should be at the top of every employer’s 2004 list for employee and supervisor training to avoid liability.
Discrimination Statutes
• Anti-harassment (all protected categories, including race, sex, religion, ethnic, national origin)
• Discrimination (hiring, promotion, training, discipline)
• Disability discrimination
• Leave laws
• Wage and hour compliance
Workplace Safety and Health
• Occupational Safety and Health Administration
• Security and workplace violence
Union Training
• Positive employee relations (for non-union environments)
• Managing in a union environment (for union environments)
Management Skills
• Written documentation
• Verbal counseling
• Interviewing skills (including hiring and promotions)
• Workplace investigations
• Managing problem employees (including potential workplace violence issues)
Employee Privacy Issues
• Health Insurance Portability and Accountability Act
• E-mail and electronic data systems
• Diversity and affirmative action issues
Why Bother with Training?
Unfortunately, a number of employers claim that the workplace is “too busy” to conduct training, or they assume that supervisors are somehow “omniscient” as to their compliance obligations under these sometimes complex laws and no training takes place. In this scenario, the door to liability has been opened. The U.S. Supreme Court has made it clear since a string of employment harassment decisions beginning in 1998, that an employer may escape liability with an important legal defense that is formed by training.
Escape Liability
So how can an employer “escape” such potential liability? By showing that the employer exercised reasonable care to prevent and correct any harassing behavior, and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Obviously, an employer who has not developed any employment law policies and has not done any meaningful training has bought a ticket on the Titanic. If the employer collides with the iceberg of an employee complaint, there is no lifeboat available!
On the other hand, the employer that conducts training (and documents it), and enforces its policies, can show reasonable care to potentially avoid all liability, or, at minimum, good faith efforts at compliance, despite mistakes, which, while not a complete defense to liability, may insulate the employer against “punitive” damages, based upon “malice or reckless indifference” to the plaintiff’s rights.
Training Tips
Now that it is apparent that training must be done, here are some recommendations.
Train from top to bottom. Everyone needs to be trained since these laws apply to the entire workforce.
Check content for accuracy and completeness. Is the material a correct statement of the employer’s policy and does it comply with the law? Also, is the training geared to the particular audience, hourly versus supervisory, and is it in a language the employees comprehend?
Avoid discussing actual workplace incidents. While incidents involving previous discrimination claims at the workplace are relevant, discussing actual workplace incidents can create potential issues involving defamation, slander, privacy, and confidentiality issues relating to employees at the worksite.
Do not elicit discriminatory or stereotyping remarks. Frequently, employee training digresses into candid, supposedly off-the-record, discussions by individual employees of their thoughts or beliefs about minorities or protected groups and such comments can become divisive, or worse, later be used to attempt to demonstrate that a particular employee (including a supervisor) has a discriminatory state of mind.
Properly document training. In order to prove that meaningful training occurred, documentation should be prepared to establish what training was provided, the content, and who participated.
Conclusion
If the employer conducts training on a regular schedule, with appropriate documentation and enforcement, the avoidance of liability can be the most meaningful resolution of the new year.
Labor and the Law - February 2004 Render