Harassment Training – Does it Work?

Last week, we posted about the EEOC’s suggested best practices for avoiding harassment.  A recent article in the NY Times provides additional insight into harassment training and suggests that traditional training – lectures, PowerPoint presentations, videos – does not effectively stop harassment in the workplace.  These approaches can educate about legal terms, and inform employees about complaint procedures, but they do not appear to prevent harassment.  Instead, while training is important, employers need to change the culture and behavioral expectations in their workplace.

One way harassment can be reduced is when co-workers are empowered to stand up for one-another.   When a co-worker who witnesses harassment voices an objection, or follows up with harasser and asks whether they were aware of how their comments/behavior came across, or engages others in a discussion about the inappropriate comment, the result is a reduction in workplace harassment (and a more respectful culture).  Just as important, however, is the need for bystanders to talk to the victim of harassment to see if they are OK and to support such individuals.

The EEOC has also designed new training programs that focus on civility, including discussing respectful behaviors, teaching employees how to praise good performance, how to avoid interrupting, and how to give and receive constructive feedback about rude behavior.

Fundamentally, training should occur often and should be conducted by management or  an outside facilitator.  There is also some authority that suggests that when training is conducted by a male member of management, employees take it more seriously.  Further, when you have more women in positions of power, there is less sexual harassment all around.

Finally, employers need to come up with ways to encourage reporting, which could be as simple as giving multiple people responsibility for hearing complaints.  Another idea is to use an “information escrow” which is where a victim reports harassment by a particular person, but the employer agrees that the report will only become “active” if another employees complains about the same person.

Employers should continue to conduct harassment training, but as the NY Times article indicates, training alone will not create a respectful workplace.

https://www.nytimes.com/2017/12/11/upshot/sexual-harassment-workplace-prevention-effective.html (subscription may be required).

Best Practices for Preventing Harassment

Last year the EEOC issued Recommendations Regarding Harassment Prevention Policies and Procedures. Here are a few of the most important takeaways in the EEOC report:

  • Employers should adopt and maintain a comprehensive anti-harassment policy (which prohibits harassment based on any protected characteristic, and which includes social media considerations).
  • Employers should ensure that the anti-harassment policy, and in particular details about how to complain of harassment and how to report observed harassment, are communicated frequently to employees, in a variety of forms and methods.
  • Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
  • Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
  • Employers should periodically “test” their reporting system to determine how well the system is working.
  • Employers should devote sufficient resources so that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.

If you are an employer and do not have an anti-harassment policy in place, get one. If you have policies, confirm that that they are consistent with current best practices and address things like texting and social media. Make sure to train employees on any new or updated policies. Even if you do not make any changes to your anti-harassment policies, now would be a good time to remind all employees of what constitutes prohibited conduct and how to report it.

The complete report, Select Task Force on the Study of Harassment in the Workplace Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic Executive Summary & Recommendations, can be found at https://www.eeoc.gov/eeoc/task_force/harassment/report_summary.cfm

Survey Shows Significant Increase in Corporate Equality Policies for LGBTQ Workers

The 2018 Corporate Equality Index released by the Human Rights Campaign Foundation found a significant increase in the number of major U.S. companies establishing policies and practices to protect lesbian, gay, bisexual, transgender, and queer (LGBTQ) workers.  These policies and practices include nondiscrimination policies, employment benefits, demonstrated organization competency and accountability concerning LGBTQ diversity and inclusion, public commitment to LGBTQ equality, and responsible citizenship.  More information is available here: 2018 Corporate Equality Index

Many of these policies and procedures are often found in a company’s employee handbook, which should be reviewed at least annually for any size company.

OregonSaves – What Employers Need to Know

Oregon has created a retirement savings vehicle (a Roth IRA) for employees whose employers do not offer an employer-sponsored requirement plan.  Beginning on November 15, 2017, employers with 100 or more employees must register with the state, create an account, and if the employer does not provide retirement benefits, provide  information about each employee so the state can set up Roth IRA accounts for each employee.  After registration, employers’ role is limited: Employers must provide information about OregonSaves to employees (including information about other options, the employer’s role, and the tax consequences of the program), and make payroll deductions directly into the Roth IRA accounts administered by the state.  Employees will be automatically enrolled and have options regarding the amount and allocation of funds deducted.  Employees who do not wish to participate in OregonSaves will need to opt-out.  The timeline for registration of smaller employers is as follows.

May 15, 2018 – Employers with 50 to 99 employees

December 15, 2018 – Employers with 20-49 employees

2019 -2020 – Employers with fewer than 19 employees

The employer portal to OregonSaves is here:  https://employer.oregonsaves.com/home.html


AG Says Title VII Does Not Prohibit Transgender Discrimination

The Attorney General of the United States issued a memo on October 4, 2017, that reversed the Obama Administration’s position that Title VII protects transgender individuals.  The memo says: “Title VII does not prohibit discrimination based on gender identity per se.”  And, explains that: “the sole issue addressed in this memorandum is what conduct Title VII prohibits by its terms, not what conduct should be prohibited by statute, regulation or employer action.” Based on this conclusion, the memo directs the Department of Justice and federal agencies to follow Title VII as written, i.e., not as interpreted to include protection for transgender individuals.

It is unclear what effect the memo will have on private employers or on the courts.  In Oregon and Washington (as well as in a number of other states), state law prohibits discrimination on the basis of sexual orientation (which includes gender expression and gender identity).  Further, the memo conflicts with the EEOC’s current position regarding protections for transgender employees and the agency’s efforts to pursue claims on behalf of transgender employees.  To date, the EEOC has not commented on the memo (or on whether it intends to curtail its efforts).

We will continue to follow developments on this subject.

Oregon’s New Distracted Driving Law

On October 1st, Oregon’s new distracted driving law takes effect. Drivers have been banned from talking and texting in Oregon since 2009. However, drivers could still use other functions on their phone while driving or stopped in traffic. The new law closes that loophole.

Starting Monday, drivers in Oregon cannot use any function of a mobile electronic device that requires holding or touching the device, unless they are pulled over on the side of the roadway or parked. The law applies to tablets, laptops and GPS units, in addition to cellphones. Prohibited uses include: drafting emails, accessing the Internet, navigating, or listening to music. Electronic devices may still be used for navigation or to listen to entertainment while driving, so long as the driver enters the address or selects a song (or podcast or audiobook) while the car is parked.

Drivers may use their devices to call 911 or otherwise summon emergency help, but only if no one else in the car is capable of making the call. The law also excludes emergency personnel, and commercial motor vehicle and school bus drivers under some circumstances.

Oregon employers should look at their policies on cell phone usage and text messaging while driving. Policies drafted under the prior law may need to be expanded to cover the additional devices and prohibited uses. Washington employers take note too; a similar law took effect in Washington State in July.

Washington Paid Sick Leave

Starting on January 1, 2018, employers in Washington will be required to provide employees with paid sick leave.  Generally, the new law provides:

  • Employees are eligible to accrue 1 hour of paid sick leave for every 40 hours worked;
  • Sick leave is paid at an employee’s regular hourly wage;
  • Employees can use sick leave after 90 days of employment and can carry over up to 40 hours of sick leave from year to year;
  • Paid sick leave can be used by employees:
    • To care for themselves or family members;
    • When an employee’s workplace or child’s school is closed for health reasons;
    • For an absence under the Domestic Violence Leave Act;

The benefits above are the minimum entitlement for employees. Employers can elect to provide for employees to accrue and/or carry over more sick time than required by the law.

L&I is currently drafting rules for the new paid sick leave law.  The rules are being developed in two phases:  (1) employer requirements and employee rights, and; (2) enforcement of the new law.  Public hearings on the draft proposed rules begin in November.

We will post again once the rules are released.

Part of Oregon Equal Pay Act in Effect

Oregon’s new Equal Pay Act goes into effect over the next few years.  However, starting on September 1, 2017, the provision of the law that prohibits asking for salary history from applicants and current employees went into effect.  As a reminder, the applicable portion of the law provides:

It is an unlawful practice under ORS Chapter 659A for an employer or prospective employer to seek the salary history of an applicant or employee from the applicant or employee or a current or former employer of the applicant or employee. This section is not intended to prevent an employer from requesting from a prospective employee written authorization to confirm prior compensation after the employer makes an offer of employment to the prospective employee that includes an amount of compensation.

While this provision went into effect as of September 1, 2017, employees do not have a private right of action to enforce violations of the law until January 1, 2024.

We will continue to post as other portions of the law go into effect. In the interim, employers should revise job applications and other initial hiring documents to remove questions about salary history.

DOL Overtime Rule is Dead

Back in May 2016, the DOL issued the Final Rule updating and modernizing overtime regulations.  The Final Rule raised the minimum salary level for exempt employees from $455 per week to $913 per week. In response, a number of States and private businesses sued to enjoin the application of the Final Rule and obtained an injunction blocking the Final Rule from going into effect.  Yesterday, the United States District Court for the Eastern District of Texas granted the business plaintiff’s motion for summary judgment and essentially killed off the Final Rule.

As we all know (or know by now) to be exempt from minimum wage and overtime, an employee must: (i) perform bona fide executive, administrative, or professional capacity duties; and (ii) be paid a salary of at least $455 per week.  The Court found that the Final Rule essentially ignored the duties test and focused only on the salary component of the exemption, with the result that salary, rather than an employee’s duties, became determinative of whether a bona fide executive, administrative, or professional capacity employee should be exempt from overtime.   Because this ignored Congress’ intent when enacting the exemption, the Court found that the DOL exceeded its authority when issuing the Final Rule.

There is no easy answer to the question of whether employers should reclassify employees as exempt who were switched to non-exempt status when the Final Rule was issued in May 2016.  The decision depends upon the economics of the positions, how much overtime is worked and necessary to operate your business, how switching your employees’ status will impact their income, and how reclassification will impact company morale.