Legally Required Training You Must Do  
By D. Goldman
 
If you're like me, you get a training catalogue or course offering in the mail (or e-mail) everyday.  A lot of these programs sound great (and a few of them probably are).  But  with shrinking budgets what are the courses and programs you really must provide employees?  We could do cost benefit analyzes all week but don't really have time for that.  So how about making the process simple. Start with running programs on the subjects that are required or implied by law. Here's a short list of four legally imperative training subjects.

Workplace Harassment Prevention Training

The handwriting is on the wall about unlawful workplace harassment training, and the hand is writing a clear message.  Most states will require employers to conduct regularly harassment prevention training for all employees. 

Connecticut and Maine already require private employers to provide harassment training to all employees.  California and Illinois require private employers to distribute information about sexual harassment under certain circumstances. Colorado, Massachusetts, Rhode Island, and Vermont have laws that "encourage" employers to conduct sexual harassment training, but impose no obligations. When the state legislatures "encourage" you do training, employers are well advised to take the hint.

EEOC and court decisions are also very clear—employers face significant liability if they fail to thoroughly train all employees in all aspects of unlawful harassment. The Equal Employment Opportunity Commission's 1999 guidelines on establishing an affirmative defense, as the following quotes show:

If feasible, the employer should provide training to all employees to ensure that they understand their rights and responsibilities [under the laws prohibiting harassment]. An employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedures. Periodic training can help achieve that result.

An employer should set up a mechanism for a prompt, thorough, and impartial investigation into alleged harassment . . .. The employer should ensure that the individual who conducts the investigation would objectively gather and consider the relevant facts. Whoever conducts the investigation should be well trained in the skills that are required for interviewing witnesses and evaluating creditability. More Than Just "What is Harassment"

As the above quotes from the EEOC show, training must go beyond merely sensitizing employees about what is and what is not harassment.  Employees must fully understand how to report harassment and how their employers will respond.  Managers must know how to respond to formal and informal claims of harassment, how to conduct prompt and effective investigations, how to take corrective action and how to prevent retaliation.

More Than Just Sex. Here's the good news.  Many employers have already done sexual harassment prevention training. The bad news?  Federal statutes prohibit harassment based on all categories protected by law including color, national origin, religion, disability, and age.  Organizations that have just done sexual harassment training simply are not adequately protecting themselves.

The need to do training on all protected categories has become even more urgent since the September 11 tragedies.  We've already seen unfortunate examples of subtle (and not so subtle) acts of harassment targeted at Muslims or Arabs. Any harassment training must account for these post-tragedy issues.

Avoiding Punitive Damages – Equal Employment Training

Even the best organizations can find themselves on the kicking end of a harassment or discrimination lawsuit. In these situations, you want protection from the punitive damages that can cripple an organization. 
According to the U.S. Supreme Court, employer can avoid punitive damages in federal discrimination and harassment cases if their manager's actions "are contrary to the employer's good faith efforts to comply with Title VII."

How does an employer show that it has made "good faith efforts" to comply with the discrimination law? Although the Court did not detail every action that might qualify under this standard, a "good faith" effort clearly includes: (1) adoption and implementation of anti-discrimination policies, and (2) "educating" personnel about what is and is not permitted under applicable laws.  In court decision after court decision, employers who have done trained their managers on how to comply with federal ant-discrimination laws can avoid punitive damages.

Ask yourselves these questions:
* Do my managers know how to make every day employment
decisions without creating the appearance of discrimination? 
* Do my managers know how to document decisions in a way that ends off discrimination claims? 
* Do my managers know what to do if some complains (even indirectly) about discrimination?
* Do my managers know how to identify and respond to potential
disability or religious accommodation issues?

If the answer to any of these question is "no," you may not have taken good faith efforts and are subject to punitive damages.  Training on how to prevent discrimination and harassment and provide reasonable accommodations must be considered mandatory by any employer who seeks to avoid punitive damages.

Safety First

The Federal Occupational Safety and Health Administration (Fed-OSHA) has issued safety and health program management guidelines (Guidelines) for use by employers to prevent occupational injuries and illnesses. These guidelines state that such programs must include safety and health training.

Employers must implement training programs to ensure that all employees understand the hazards to which they may be exposed and how to prevent harm to themselves and others from exposure to these hazards so that employees accept and follow established safety and health protections.  In addition, supervisors must be trained to carry out their safety and health responsibilities effectively and to ensure that they understand those responsibilities and the reasons for them.

Drug Prevention Training

The federal Drug-Free Workplace Act (DFWA) nearly a decade ago. DFWA requires employers who receive grants from, or enter into contracts with, the federal government to inform their workers about the hazards of drug use and chemical dependency. These employers must establish programs informing their workers of the dangers of drug abuse in the workplace, must acquaint them with their company's drug-free policy and must point out available resources for drug counseling and rehabilitation. They also must inform employees of the penalties that may be imposed for transgressions. Employers covered by DFWA that fail to conduct such training may forfeit government grants or be excluded from future government contracts.

Mr. Goldman is the manager of learning and content development for the Legal Learning Group, the division of Littler Mendelson devoted to providing clients with employment law training. In this position he helps ensure that all training programs contain Littler's best legal practices and cutting edge learning techniques.