Best in Law: Four Steps Employers Can Take to Avoid a #MeToo Situation - BB&K Attorneys Joseph Ortiz and Tristan Kirk Write for the Press-Enterprise

by Best Best & Krieger LLP

Best Best & Krieger LLP

With revelations about high-profile sexual harassment cases are emerging weekly in the wake of the #MeToo movement, a long-overdue conversation about harassment has begun. Workplace harassment is a current and serious problem that employers have a duty to affirmatively address. The California Department of Fair Employment and Housing stated in its 2016 Annual Report that, “Sexual harassment cases remain prevalent across industries and economic sectors . . . .” (Emphasis added.) Ignoring or mishandling claims can devastate morale and result in costly litigation.
Now, more than ever, responsible employers are taking steps to ensure a harassment-free workplace. Below are four fundamental actions every employer should take:
Effective Policies
Employers must adopt a clear and easy to understand written policy prohibiting all forms of harassment, as well as a clear and effective internal complaint procedure. California regulations govern what must go in your harassment policy. These regulations were amended by the DFEH in April 2016. These new regulations now require that all anti-harassment policies identify all protected groups under the Fair Employment and Housing Act, provide a detailed internal complaint procedure that complies with specific requirements, inform employees that they will not be retaliated against for utilizing the complaint procedure, and explicitly state that supervisors and third parties are covered by the policy. If your current policies have not been revised since then, they are likely out of date.
Anti-harassment policies are worthless unless employees are aware of  them and they are consistently and fairly enforced. Employers must ensure that their policies are  distributed to all employees and that they be provided in other languages if spoken by at least 10 percent of the workforce.
Depth of Bench
Human resource departments are often very underrated divisions of companies of all sizes. Human resource professionals ensure compliance with the complex web of state and federal laws that California employers must follow. It is imperative that resource professionals be familiar with legal standards, training obligations and routine workplace investigations.
For more complex or sensitive harassment investigations, employers should bring in an experienced employment attorney who is familiar with current law and best practices. Per California’s Business and Professions Code, workplace investigations may be handled only in house or by an outside attorney or a licensed private investigator. Unlicensed human resources consultants are not legally permitted or qualified to conduct workplace investigations. Many attorneys list “employment law” as one of many areas of practice without having experience performing workplace investigations. When an outside professional is required, consider an investigations specialist, such as those belonging to the Association of Workplace Investigators.
Two hours of harassment prevention training every two years is required for employers who have 50 or more employees or independent contractors in California, as mandated by AB 1825 and AB 2053. As of Jan. 1, this training will now include a component addressing gender identity, gender expression and sexual orientation under SB 396, signed into law this year. Training must occur within six months of them taking a position as a supervisor or manager. Such training is typically best practice for all employers, even if not mandatory. In fact, many businesses now require a shorter version of the training be to given to all non-supervisory employees.
The DFEH also recommends that human resources personnel receive specialized investigation training. (see DFEH’s “Workplace Harassment Guide for California Employers,” 2017) Such training covers scope of investigation, effective interviewing, weighing credibility, analyzing information and report drafting. On the private side, the DFEH’s Guide is a good brief resource. Public employers should consider the California Public Employee Relations’ “Pocket Guide to Workplace Investigations.”
Needs Assessment
Lastly, it serves employers to be proactive in this area. A needs assessment is a process for determining where an employer’s practices and policies are deficient and what steps need be taken to achieve a diverse and harassment-free workplace. They often include audits and surveys that help the employer identify issues and training shortfalls to be addressed moving forward.

* This article first appeared in The Press-Enterprise on Dec. 24, 2017. Republished with permission.

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