Public figures are being publicly revealed for their years of sexual harassment in the entertainment and sports industries, and on the political arena. As sad as all this publicity is, thankfully, most of us are not in those industries. Yet, no matter the industry, we still unnecessarily deal with harassment and discrimination.
THE GOOD NEWS FOR EMPLOYERS
There is a process for employers that will prevent or at least minimize all forms of harassment and discrimination. Here are seven elements of how to create a workplace that has little or no harassment. Doing just one of the items will not work. To stop harassment, all seven of the elements must be present in the organization.
1. Zero Tolerance Anti-harassment Prevention Policy. The first thing, the foundation, the start, is for the organization to have a well-crafted, zero tolerance, sexual harassment prevention, and respect in the workplace policy. Make sure, regardless of if the policy is written by an attorney or your Human Resources department, it contains:
a. A statement that sexual harassment is against the law.
b. A statement that the employer will not tolerate harassment.
c. Potential consequences for harassment.
d. Obligation to report harassment to a supervisor, any senior management, or the Human Resources department with the H.R. Department's contact person's name, phone number, and email.
e. The commitment that the employer will take prompt and appropriate disciplinary action against anyone who violates the policy.
f. A definition of harassment.
g. Examples of conduct that may constitute sexual harassment.
h. Directions on how to contact the California Department of Fair Employment and Housing (DFEH) or the U.S. Equal Employment Opportunity Commission (EEOC).
i. The investigation procedures.
j. Due process.
k. The limited confidentiality in an investigation.
l. Assurance that there will be no retaliation.
m. What to do if you are harassed.
n. What to do if you are accused of harassment.
o. What to do if you know of someone else being harassed.
p. Anti-bullying/abusive conduct.
q. Gender definitions.
r. Unconscious Bias
s. Systemic harassment
Many attorneys, HR consultants, and HR service providers will write good policies, but others have a standard template, so make sure the policy you use applies to the rules of your organization.
Zero tolerance means that all reports of harassment will be investigated quickly and thoroughly. That anyone, no matter how high up in the organization, will be disciplined if they are found to have sexually harassed a subordinate, co-worker, applicant, customer, intern, volunteer or vendor. Disciplined might mean one-on-one coaching with a sexual harassment prevention coach. It might involve transferring the harasser to another position, possibly a demotion with a last chance agreement that they understand what they did and that it will never happen again and that if it does, they will be fired. Depending on the severity of the offense, it may mean immediate termination. Zero tolerance means that all reports of sexual harassment will be taken seriously and that the sexual harassment will never happen again, regardless of the way it is remedied.
2. The President/CEO/Board of Directors/Executive Team as Role Models – The buck stops here. The president must be ethical and an excellent business strategist, in which case a solid policy will be in place from the onset of the business as a matter of operations and a condition of employment. If the president or any member of the executive team is a harasser, that leaves the only option for the victim is legal action. They can begin at the California Department Fair Employment and Housing (DFEH) or the federal Equal Employment Opportunity Commission (EEOC). Or an attorney can request a right to sue letter from the EEOC so they can immediately begin a lawsuit. It’s highly likely that the attorney will take the case on contingency if they think they have a good case.
3. Well-delivered Training – Organizations need to provide interactive, engaging training programs to all employees at least once each year and at new hire orientation, (California requires training every other year, but this article is not about the law. It is about how to maintain a workplace free from sexual harassment). The training must include an explanation of the company policy with all the details listed in the anti-harassment prevention policy. It must ask questions of the students that assess their learning, and it must allow students to ask questions. Training needs to be provided to everyone regardless of the title.
Supervisors need to be trained on prevention and their personal liability and responsibility, which is significantly different from line employees. Well-trained supervisors are critical in preventing and stopping harassment but they can’t do it alone.
Employees need to be trained on what to do if harassment is happening in the organization. Training will make for more productive employees and a bigger bottom line.
4. Enforcement – No one gets a pass. Many people don't know that what they’re doing is not acceptable behavior at work. Enforcing the policy not only protects the victim, but it teaches the harasser and all employees what inappropriate behavior at work is and that it will not be tolerated. Termination is not the only option…depending on the severity of the offense. Enforcement means that you will take immediate, appropriate, corrective action. Immediate means right now…not in two weeks. Corrective means make it stop and do whatever needs to be done to restore the victim's dignity. Appropriate is where we get into trouble. The punishment must fit the crime. It may mean further training, or it may mean the termination of employment. It may also mean legal action. In California, sexual harassers, as well as the organization, can be personally sued.
5. A Qualified H.R. Practitioner - Melissa Gilbert said on the Megyn Kelly show, "H.R. has no teeth." Numerous T.V. personalities have said the same thing. I am tired of lumping all H.R. professionals in the same basket. Let’s put the blame where the blame belongs. SHAME on the entertainment industry for hiring unqualified Human Resources people!
A great Human Resources professional can make a significant impact on the success of the organization – not just in sexual harassment prevention, but also in productivity, bottom-line results, and creating a culture of respect and civility.
How do you know if you have a qualified Human Resources person? Along with experience and education, there are several competencies that you can look for: accredited certification such as Professional in Human Resources California (PHRca) certification by the Human Resources Certification Institute (HRCI) that indicates H.R. technical expertise, relationship management, consultation skills, leadership skills, communication skills, culture skills, ethics, business acumen, ability to interpret critical information and budget/financial knowledge as well as specializing in California Human Resources. Qualified H.R. professionals don't come cheap, but they are worth every dollar.
Your H.R. Manager must be able to do a proper investigation. They should, along with their Professional Human Resources certification, be trained in proper investigations. They should also be a subject matter expert in the prevention of harassment and discrimination.
6. Proper Investigations – Everyone deserves due process. No two sexual harassment cases are the same. Sexual harassment can be a hostile work environment or Quid Pro Quo. While they are both about the power to degrade and creating a situation that causes a person not to be successful at their job, each case is different, and the facts must be found. Only through an investigation where the H.R. manager, the EEOC, an attorney, or a private investigator gathers the facts can a determination be made as to whether it is sexual harassment, or something else, and on how to handle the harasser and restore the victim's well-being.
7. Culture of Productivity, Respect, and Civility – We, at Train Me Today, have trained thousands of people in sexual harassment prevention. Part of our training asks this question: "Sexual harassment has been against the law since 1980 in the U.S., so why do people still behave badly at work?" The overwhelming responses are:
a) It is tolerated – no one stops it (Systemic).
b) They don't realize it is inappropriate, It iss their culture. (Implicit Bias).
It is for these reasons that the organization must create its own culture. It must create a culture that does not allow such things as profanity, disrespect, bursts of anger, and any form of behavior that makes others feel degraded or put them down including any form of harassment or abusive behavior. To do this, we circle back to step one, the zero-tolerance policy, and make sure these elements are active in the organization. If things have gotten out of control, find a professional change agent.
While powerhouse celebrities, sports figures, and politicians are being picked off one by one for their unwanted deeds, we regular people still need to take a stand against harassment in the workplace. Celebrity victims are helping us build an Army, exposing harassers and giving us the power to speak up. And speak up, we must.
After 35 years as a Human Resources practitioner and University Professor, Jacquelyn Thorp launched Train Me Today in 2003. Today, she manages Train Me Today providing employment for 11 trainers and staff. She is the recipient of the Professional in Human Resources Association (PIHRA) Excellence in Human Resources Award. She has been trained by the DFEH and the Federal EEOC in sexual harassment prevention. Jacquelyn holds a Master of Science in Human Resources, Senior Professional in Human Resources certification (SPHR) and a Professional in Human Resources California (PHRca) certification.
Jacquelyn began providing sexual harassment prevention training in 1980. Since then the world has changed. Founded in 2003, by Jacquelyn Thorp, for the specific purpose of providing quality sexual harassment prevention training, Train Me Today remains passionate about presenting effective and highly engaging instructor lead training that leaves a positive impact on the students and provides knowledge and skills they can apply immediately. We have trained thousands of employees in hundreds of organizations throughout California including government and private industries. As the creators of the Professional in Human resources California exam Preparation Study Guide, which focuses on Human Resource practices in California, our knowledge of how to practice Human Resources in California can’t be surpassed. Our trainers are subject matter experts in the field of Human Resources We are credentialed certified and experienced in the Hum Resources body of knowledge specializing in sexual harassment prevention.
“A company is stronger if it is bound by love rather than by fear.” Herb Kelleher
Leading with Love
by Jacquelyn Thorp, MSHR, SPHR, PHRca
Valentine's Day is a day to show love to your significant other. It is also a day to think about what love is.
When Herb Kelleher and his team first launched Southwest Airlines, they wanted it to be a different kind of company. They wanted it to be a company that was lead with love.
Today, unlike every other major carrier, Southwest Airlines has never filed bankruptcy. It has never sacked employees with layoffs, furloughs or pay cuts. It is also the airline with the fewest complaints -- just 0.25 per 100,000 passengers last year, according to the Department of Transportation.
There are plenty of theories as to how Southwest succeeds where most other carriers fail. But Gary Kelly, who has been CEO since 2004, says it comes down to love.
We spend more time with the people at work than we do our families. Maybe Valentine’s Day should include a moment to think about what love at work looks like to you. To me, it looks like a workplace where people are respected and trusted regardless of their position.
To learn more, please tell us what love looks like to you in the workplace. Then take $10 off any Train Me Today product with coupon code.
By Jacquelyn Thorp, MSHR, SPHR, PHRca
With politics so controversial, political affiliation discrimination is on the rise.
California Labor Code sections 1101 and 1102 prevent private employers from controlling or attempting to restrict employees from participating in political actions or activities. Federal law does not cover political affiliation or political activity
At a job interview an appllicant is asked if they are a member of a conservation organisztion. When they say no, the interviewer abruptly ends the discussion and tells the applicant that all employees must share the beliefs of the employer.
The Equal Opportunity Act 2010 includes some general exceptions. This means that discrimination may not be against the law in particular circumstances.
An employer may also discriminate on the basis of political belief or activity where the job being offered is as a political adviser for a government minister or work for a political party, electorate office or any similar employment.
By Jacquelyn Thorp
California requires all employers with 5 or more employees to be trained in anti-harassment practices. The requirements include two-hours for supervisors and one-hour for employees every two years to be presented by a qualified trainer.
The law, SB 1343, has very specific content that must be presented to employees. Failure to provide the training results in significant penalties and mandated changes in policies and practices.
The training may be completed by employees individually or as part of a group presentation. Training is due by January 1, 2021 and thereafter every two years.
The training and education must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment.
The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation. Employees who have completed the training can save electronically and print a certificate of completion.(b) An employer shall also include prevention of abusive conduct as well as gender identity, gender expression, and sexual orientation as a component of the training and education,
The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.
By Jacquelyn Thorp, MSHR, SPHR, PHRca
Usually, I wouldn't even get into this question, but there seems to be a bit of confusion, and if a question comes up more than three times, I start digging. As we sometimes see in California law, there appear to be conflicting rules.
The Question: The question that keeps appearing before me is, "What do I do with an employee that is vomiting or has diarrhea if I work in the restaurant industry or food preparation industry?"
The Conflict: The employee is sick in California. California has a Sick Leave law. The sick leave law has rules about asking for a doctor's note. California's Paid Sick Leave law states that it may be unlawful for an employer to require doctors' notes if it interferes with an employee's statutory right to the leave. Hmmm, even at the risk of spreading a foodborne illness?
The Source: So, I began my search with the FDA, who referred me to the California Retail Food Code Article 3 Employee Health:
"It is the intent of the Legislature to reduce the likelihood of foodborne disease transmission by preventing any food employee who is suffering from symptoms associated with an acute gastrointestinal illness, or known to be infected with a communicable disease transmissible through food, from engaging in the handling of food until the food employee is determined to be free of that illness or disease, or incapable of transmitting the illness or disease through food as specified in this article."
The Answer: If you work in the restaurant industry and you have an employee that is vomiting or showing signs of diarrhea or any transferrable disease send them home and don't let them return until they can provide you with a note from a health care professional that states that they are "determined to be free of that illness or diseases, or incapable of transmitting the illness or disease through food".
By Jacquelyn Thorp, MSHR, SPHR, PHRca
Employee non-compete agreements are legal in California in only limited circumstances. California is one of the most difficult states in which to enforce a non-competition or related agreement. The crucial general rule is that every contract in which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void. Not hiring someone for refusal to sign such an agreement is illegal.
The three main types of restrictions are (1) a true non-compete where an employee can never work for a competing company, (2) a non-solicitation of customers restriction, (3) and non-solicitation of employee’s restriction. This does not mean a “non-compete being illegal” implies that California employees are free to damage a past employer. It simply means that employees in California have the right to engage in their lawful profession, trade or business.
California law strongly favors the mobility of labor (i.e., the “right to earn a living”). A non-competition agreement is an agreement by one party not to compete with the business of another party (e.g., by opening or becoming employed by a competing business), typically limited to a specific time period after the employment ends or to a specific geographic area. Absent one of the few exceptions discussed below, non-competition agreements are nearly always void in California.
By Jacquelyn Thorp, MSHR, SPHR, PHRca
With all the publicity in the media right now, please remember there are varying types of sexual harassment, with the 2 most prominent being Quid Pro Quo and Hostile Work Environment.
Quid Pro Quo
The current news articles are about Quid Pro Quo - power to impact someone's life when an authority figure offers or merely hints that he or she will give the employee something (a raise or a promotion) in return for that employee's satisfaction of a sexual demand.
Hostile Work Environment
The other one is a hostile work environment which should not be dismissed. It is a type of sexual harassment that occurs when there is frequent or pervasive unwanted sexual comments, jokes, profanity, advances, requests, or other similar conduct not from a person of power but allowed by the organization. It can also occur when there is other verbal or physical conduct that is sexual in nature. Most people are surprised to learn about hostile work environment and all the ways that can be offensive.
Best hint to avoid it: If what you do at work is not productive and work related, just don't do it. Quick example: Don't refer to co-workers as Sweetheart or Honey. Why? If you are a male, would you call your male co-workers Sweetheart or Honey? And if you answered "no", that is what makes a simple comment potential sex discrimination...because you treat your co-workers different based on gender.
ABOUT THE HR Certification Institute® (HRCI®) PHRca® EXAM
The HRCI’s PHRca® Exam content outline is updated periodically (approximately every five years) to ensure it is consistent with current practices in the California HR field.
The National Commission for Certifying Agencies (NCCA) granted accreditation to the HR Certification Institute's PHR, SPHR, GPHR, and California Certification programs for demonstrating compliance with the NCCA Standards for the Accreditation of Certification Programs. NCCA is the accrediting body of the Institute for Credentialing Excellence (formerly the National Organization for Competency Assurance).
The NCCA Standards were created in 1977 and updated in 2003 to ensure certification programs adhere to modern standards of practice for the certification industry. The HR Certification Institute is part of an elite group of approximately 100 organizations representing over 250 programs that have received and maintained NCCA accreditation.
The exam is based on four functional areas that have the below weights.
· Compensation/Wage and Hour 22%
· Employment and Employee Relations 46%
· Benefits and Leaves of Absence 20%
· Health, Safety, and Workers’ Compensation 12%
With all of the publicity about sexual harassment in organizations, Human Resource practitioners must know how to do a proper investigation and understand how critical their timeliness and approach are. I recently received a call from an attorney asking me to help with an investigation. I have to explain to the attorney that under the Private Investigations Act, I could help the attorney, but that I could not do the investigation for the employer. You see, HR consultants are not considered qualified investigators. Attorneys, Private Investigators and onsite trained Human Resource practitioners are.
California Business & Professions Code
There are essential restrictions on who can legally conduct a workplace investigation in California. If the investigation isn’t to be conducted by a W-2 employee who is trained to perform investigations, there are clear restrictions on who an employer can turn. A practicing attorney who normally performs this type of work can be retained to conduct the investigation, as can a licensed private investigator or, with a few restrictions, an off-duty, currently sworn peace officer. Beyond that, pickings can get a bit slim. In the past, not so much today, HR Consultants would perform this work in California. Today, without a private investigator’s license, they would be performing these activities illegally.
California Private Investigator Act
Under the California Private Investigators Act (PIA), a private investigator is
(a) any person who, for any consideration whatsoever engages in business or accepts employment to furnish, or agrees to make, or makes, any investigation for the purpose of obtaining, information concerning:
(b) The identity, habits, conduct, business, occupation, honesty, knowledge, whereabouts, associations, acts, reputation, or character of any person;
(c) The location of lost or stolen property;
(d) The cause or responsibility for fires, libels, losses, accidents, or damage or injury; (e) Securing evidence to be used before any court. Private Investigators must be licensed by the Bureau of Security and Investigative Services (BSIS), which is part of the Department of Consumer Affairs.
To obtain a license, an investigator must submit an application, pay a fee, possess specific experience requirements, and pass an examination--and once the license is granted, it must be renewed periodically. Unlicensed persons (not including those considered exempt under the PIA) who represent themselves as licensed or act as private investigators are committing a misdemeanor and may be jailed for up to one year and fined $5,000.
In addition, anyone, including a lawyer who “knowingly” engages an unlicensed investigator or who conspires to have an unlicensed person operate as an investigator also commits a misdemeanor with the same penalties. Public prosecutors may seek civil remedies against unlicensed investigators, their co-conspirators, and anyone who knowingly engages such investigators. The civil remedies include an injunction (for which prosecutors need not "show lack of adequate remedy at law or irreparable injury"), a civil fine of up to $10,000, and reimbursement of BSIS investigation expenses.
The PIA does not contain a private right of action for licensing violations. However, private parties might have a least three indirect remedies. First, a licensing violation would be an “unlawful business act or practice” under the Unfair Competition Law, which generally affords private parties equitable relief, including an injunction and, if appropriate, restitution. Second, an aggrieved litigant might move to exclude evidence gathered by an unlicensed investigator. Third, a person who contracts with an unlicensed investigator might seek to avoid paying the investigator's fees on the ground that the contract is illegal.
May a licensed investigator employ or contract with unlicensed persons to perform investigative tasks? The answer appears to be a qualified yes. Under the PIA, a licensee may be an individual, partnership, corporation, or other business. If the licensee is a partnership, corporation, or other business, it must designate a licensed "manager," under whose "direction, control, charge, or management the business...is operated." The individual or manager licensee is "legally responsible for the good conduct...of his or her employees or agents...," and only the licensee, manager, or other person authorized by them may submit a "written report...to a client." Also, employees (though, apparently, not agents) of licensed investigators may provide the "incidental" personal protection.
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