Ensuring Compliance with Harassment Training Obligations
The national attention given recently to sexual harassment serves as a good reminder to Maine employers of their obligations to employees in this context. In addition, the first of a new year is always a good time to renew a commitment to a harassment free workplace and ensure compliance with training requirements.
In terms of legal obligations, all Maine employers must have the following:
1. A poster that provides, at a minimum, the following information: the illegality of sexual harassment; a description of sexual harassment, utilizing examples; the complaint process available through the commission; and directions on how to contact the commission. The law requires that the text of the poster not exceed 6th-grade literacy standards.
2. An annual notice given to all employees that includes at a minimum the following information: the illegality of sexual harassment; the definition of sexual harassment under state law; a description of sexual harassment, utilizing examples; the internal complaint process available to the employee; the legal recourse and complaint process available through the commission; directions on how to contact the commission; and the protection against retaliation. The statute requires that the notice be delivered “in a manner to ensure notice to all employees without exception, such as including the notice with an employee’s pay.”
The required poster is available on the Maine DOL website. The annual notice is not and has to be developed separately.
Employers with 15 or more employees have additional obligations. Such employers must conduct an education and training program for all new employees within one year of commencement of employment that includes federal laws and federal regulations, including the Maine Human Rights Act and the Civil Rights Act of 1964 ; a description of sexual harassment, utilizing examples; the internal complaint process available to the employee; the legal recourse and complaint process available through the commission; directions on how to contact the commission; and the protection against retaliation. Employers must also conduct additional training for supervisory and managerial employees within one year of commencement of employment that includes at a minimum the specific responsibilities of supervisory and managerial employees and methods that these employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.
A recent amendment to the law provides for the creation of a compliance checklist by the Maine DOL covering these education and training obligations.
The law states that employers must use the checklist to develop a sexual harassment training program, although employers may find this is not a “checklist” in the sense that it provides a listing of specific direction for the training. The checklist is found on the Maine DOL website.
The new law also requires that employers keep a record of the training, including all employees who have received the required training. The training records must be maintained for a period of at least three years.
The law now imposes penalties for violations of the posting, notification, education, and training requirements.
It is my view that all Maine employers, regardless of size, should already be providing the very basic training required by the law. This is for two reasons. First, it is simply the right thing to do. The more your employees and supervisors know about prohibited behavior, the better off the workplace should be. Second, in the event a claim is made, whether and to what extent training was provided is going to be a focal point of the claim. To that end, I would make the following additional suggestions for training:
1. At least one training, likely the initial training for employees and/or supervisors who have not yet had training, should be delivered in person. My view is that this is preferential to limiting training to a video or written material because of the option to ask questions and have complete explanation of the material from someone other than the HR department. This is particularly true if an employer has had a specific incident or complaint and is providing the training as a general reminder. Employers sometimes hesitate to provide a live training for fear that issues will be raised during the meetings, but the fact is that if the concerns are there among the employees, it generally makes sense to get them out in the open and addressed before they create discontent or form the basis of a MHRC filing.
2. The training should not be limited to sexual harassment. Even though the law does not require training based on the other protected categories, harassment complaints can be brought under any of those categories so it simply makes the best sense to provide training as to those categories as well. In fact, employees are often unaware that harassment based on other protected categories, such as race, religion, national origin and age, are also prohibited by law.
3. A record of employees who attend the training should already be kept but now it is imperative based on the new law. The records of those training sessions should be maintained in a separate folder so that it can be produced in the event it is requested by the DOL or MHRC.
In addition to the training, handbook policies should continually be reviewed and updated to ensure compliance with the law. Equally as important, the contacts for reporting harassment claims must be kept current. Appropriate consideration should go into choosing the individuals to whom the complaints should be made because those people need to know how to respond to such reports. Ideally, the reporting structure would include at least two people, one male and one female, and would not be limited solely to the employee’s supervisor (in case that is the person accused of the harassment). Any compliance hotline available should also be mentioned. Finally, be sure that the contact information for the MHRC is provided.
If you are interested in consulting on a sexual harassment training or require assistance with updating or creating policies or the annual notice, please do not hesitate to contact the Rudman Winchell Employment Team.