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Greetings!
This month's feature article covers a very sensitive and highly important subject related to workplace behavior. All employees are entitled to and expect their employer to provide a safe and harassment free workplace environment. Harrassing behaviors should not be tolerated and are illegal. Harassment training heightens awareness of what constitutes illegal harassment, outlines the employer's commitment to compliance, reinforces the supervisors' / managers' role and responsibilities, and at the same time can reduce the financial liability risks in the event of harassment-related litigation. Inappropriate and insensitive workplace behavior occurs in nearly every organization which could easily be considered harassment or rise to the level of illegal harassment. When was the last time you conducted Harassment Training in your organization?
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| Illegal Behavior in the Workplace
As much as we might want to believe that our employees are not exhibiting inappropriate behaviors (perhaps behaviors that rise to the level of being illegal or even harassment) in the workplace, chances are very high that this is occurring in your workplace. These behaviors may not be intentional ("I was just kidding" is not a defense); all the same they are placing you and your organization at great risk.
Rich conducts recent harassment training workshop |
Whether directed at or about the individual "offended", or even just overheard or observed by an individual who finds the behavior offensive, off-color jokes (verbally or via e-mail or text messaging), vulgar or suggestive posters or pictures, foul language, unwelcomed touching, hugging or invading of another's space, are totally inappropriate and may well rise to the level of being considered illegal if occurring repeatedly. Repeated references to an employee's age, national origin, religious affiliation or preference, gender, sexual orientation or preference, are illegal. Generally, actions which slander or show hostility, create an offensive intimidating work environment, or negatively affect a person's work performance or employment opportunities are potential "land mines" for you the employer.
If you knew, or should have known, that such behaviors have occurred and you did not take immediate corrective action, your organization (and you, personally) can be held liable. One way organizations can limit their liability is to have a very specific and well publicized policy statement (consistently adhered to) prohibiting harassment in the workplace and other inappropriate behaviors that could lead to the level of illegal harassment, coupled with clearly communicated procedures for reporting such behaviors, preventing retaliation, and conducting appropriate investigations of alleged harassment.
Investing in an on-site, mandatory, Harassment Training program (roughly 2-hours in length) is a very cost-effective step in both heightening awareness of this issue among your employees (and supervisory staff) and reducing your financial risk. Courts have found that employers who have proactively conducted and documented such training initiatives "have been operating in good faith" and thus, have limited liability in harassment cases. "Failure to train leaves the employer with no defense".
Certain states have made harassment prevention training mandatory. The State of California requires employers with 50 or more employees to conduct comprehensive training of all employees with a refresher every 2 years. The State of Connecticut requires comprehensive training of all employees by employers of 50 or more and "encourages" a refresher every 3 years. The State of Maine requires that all employers of 15 or more employees must conduct a comprehensive harassment training program for all employees.
RGL Consultants can tailor a Harassment Training Program for your organization based specifically upon your policies and procedures, or, if need be, work with you to develop appropriate policies and procedures. In addition, RGL Consultants can be a cost-effective independent resource to conduct investigations of claims of harassment in the workplace. |
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Nursing Mothers Break Time Requirement
Section 7 of the Fair Labor Standards Act was amended by the Patient Protection and Affordable Care Act (PPACA) and is effective immediately. This amendment creates a break time requirement for nursing mothers.
Under the new FLSA amendment, an employer must provide "reasonable break time for a non-exempt employee to express breast milk for her nursing child for one (1) year after the child's birth each time such employee has need to express the milk." Further, the amendment requires employers to provide "a place, other than a bathroom, that is shielded from view and free of intrusion from coworkers and the public, which may be used by the employee to express breast milk." It should be noted that there is no requirement that employees be compensated for breaks for the purpose of expressing breast milk.
CAUTION: "Employers with fewer than 50 employees are not subject to FLSA break time requirements if compliance with the provision would impose an undue hardship due to the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer's business." This seems to be a very difficult and subjective threshold to achieve. Further, it would be a difficult employee relations issue to defend compliance for non-exempt employees but not for exempt employees.
Finally, the FLSA nursing mothers break requirement does not preempt any state laws imposing greater requirements. |
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We encourage you to forward this Newsletter to colleagues or others whom you feel would be interested in receiving the RGL Pipeline
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Federal Efforts to Address Misclassification of Independent Contractors
The fiscal year 2011 federal budget contains provisions to combat misclassification of employees as independent contractors. Included in this $3.8 trillion spending measure is a proposal to be jointly administered by the Departments of Labor and the Treasury to eliminate legal incentives for employers to misclassify their employees. Funds are appropriated to enhance the ability of both agencies to penalize employers that misclassify employees as independent contractors, and restores protections to employees who have been denied them due to the misclassification. According to the budget, this proposal will increase Treasury receipts by more than $7 billion over 10 years. The budget allocates an additional $25 million to hire 100 new enforcement personnel to target worker misclassification and establish competitive grants to encourage states to address this issue.
For additional information on this issue you can access the May, 2010 issue of the RGL Pipeline at rglconsultants.com
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