One of an employer’s biggest challenges is stemming the rising tide of employment law litigation. Jury awards against employers have been climbing at astonishing rates. Multimillion-dollar verdicts and settlements in class-action discrimination cases have become commonplace.
In 2005, the median award for employment litigation claims approached $300,000. Even when lawsuits have not been filed, simply investigating claims of employment harassment consumes many hours of time. The average cost for a company to investigate a legitimate harassment complaint has been estimated at $200,000 including both direct and lost-opportunity costs.
“Fortunately, a law of training has evolved that has changed the legal landscape of preventive practices,” says Douglas G. Smith, a partner in the Pittsburgh office of Jackson Lewis LLP. “Supreme Court decisions and state laws have provided a mechanism whereby employers may limit, or even avoid, legal liability for harassment cases. The cornerstone of such a program is training.”
Small Business spoke with Smith about the legal and practical importance of employment law training in the workplace.
Why should employment law training be a necessary part of a company’s overall employee relations strategy?
There are practical and legal reasons. From a practical point of view, training programs have been shown to reduce absenteeism and turnover. Effective employee relations programs increase morale and productivity and can help eliminate third-party interference such as union organizing and administrative charges being filed with outside agencies.
In addition, for employers that carry employment practices liability insurance, the insurance companies often offer reduced premiums to companies that provide effective employee relations training.
How have court decisions stressed the importance of workplace employment law training?
A few years ago, the U.S. Supreme Court established a so-called ‘affirmative defense’ for cases where harassment on the job does not result in tangible job action such as termination or demotion. In such cases, if the employer can show it exercised reasonable care to prevent and promptly correct the harassing behavior and the employee failed to take advantage of those opportunities, the employer can avoid liability completely and the case can be thrown out.
The courts have stated that employee relations training is a key component in establishing the affirmative defense.
Do any laws require that workplace training be provided?
The Pennsylvania Human Relations Commission has issued guidelines that clearly state that to avoid liability for harassment cases, the employer should ‘affirmatively raise the subject’ of harassment in the workplace through training. In addition, many states specifically require employee relations training in the area of harassment. California, Connecticut, Maine and Michigan are just a few of the states that require it by law.
What topics should be covered in such employment law training sessions?
There are two important components.
First of all, the company’s nonharassment policy should be reviewed before the training to make sure it is in accordance with legal requirements. The policy should explain what harassment is, what the mechanism is for addressing harassment on the job, and the consequences for employees who engage in inappropriate conduct. The policy should be carefully covered during the training.
Also, the complaint mechanism that the employer has in place needs to be clearly outlined so that employees are aware of what steps to take if they believe they’ve been subject to harassment. The idea is to educate employees as to prohibited conduct and steps they should take in the event harassment does occur.
Who should take part in the training?
In addition to a basic training program that should be attended by all employees, we strongly encourage extra training for supervisory employees. As agents of the organization, it’s very important to make sure supervisors are aware of the company’s legal obligations. They must play an important role in enforcing the company’s policy.
Who should conduct the training?
It’s very important to have a trainer who is specifically educated and has experience training in the law of harassment. Some trainers have actually created harassment liability as a result of comments they’ve made during the training sessions and the way they’ve handled the training sessions. So it’s very important to have a trainer who is aware of the legal framework. Most major law firms devote a part of their employment practice to such training programs. Additionally, the Equal Employment Opportunity Commission may offer assistance in identifying training programs.
How do you respond to the company that says training is too expensive?
Quite frankly it’s actually too expensive not to train. The possible liability and the sheer number of employment law cases that are being brought based on harassment really make it much cheaper for an employer to avoid legal liability by providing training than to risk the chance that they won’t get sued.
DOUGLAS G. SMITH is a partner in Jackson Lewis LLP. Reach him at (412) 232-0404.