What to Do When ICE Comes Knocking

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The Trump administration’s tough rhetoric and early aggressive actions on immigration promise a period of increased worksite enforcement. With the administration’s strong statements against illegal immigration and abuses of the immigration system, including an executive order calling for 10,000 new U.S. Immigration and Customs Enforcement (ICE) agents, employers can expect an increased number of audits, raids, and investigations. Given this added scrutiny and the increased prospects of a fine or other penalty, employers may want to know their rights in the event of a worksite visit, and to review and update their protocols for responding to such visits.

Employer Rights

Law enforcement officers will not assert an employer’s rights on the employer’s behalf. Therefore it is important that employers be aware of their rights and be prepared to assert them in the event of a site visit.

  • Once a company representative becomes aware of a worksite investigation or raid, swiftly notifying in-house legal counsel or an appropriate corporate officer can help the employer to preserve its rights. Note that a government official with a warrant is not required to wait for counsel to begin executing the warrant, so time will be of the essence when trying to stay on top of the situation.
  • If an officer is conducting a site visit to obtain I-9 records, unless the officer is executing a search warrant, the employer has the right to three days’ notice prior to turning over I-9 documents.
  • An employer has the right to deny officers permission to access non-public areas of the employer’s property absent a valid warrant.
  • If the officer is in possession of a warrant, the employer has a right to review the warrant to verify its validity and scope (e.g., Is it signed by a court? Has the warrant expired? What are the locations to be searched and items sought?).
  • Warrants apply only to law enforcement officials; an employer has the right to refuse media or news reporters access to the facility.
  • If an employee is to be interviewed as a representative of the employer, the employer has the right to have counsel present during any such questioning.
  • Employers may benefit from taking detailed notes of all activities being performed by the visiting government officials. If possible, employers may even wish to take video recordings of the officers’ activities. The officer may insist that making recordings is not permitted; however, in many jurisdictions, employers do have that right as long as they are not interfering with law enforcement operations.
  • A helpful practice during a worksite investigation is to obtain the lead officer’s business card or contact information.

 

Preparing for a Site Visit

Employers that take proactive steps to fully develop policies and procedures to follow in the event of a worksite inspection will be better prepared to effectively assert their rights and protect their interests.

Designate an Immigration Compliance Officer. One of the key proactive measures an employer can take in anticipation of a worksite audit or raid is to designate an immigration compliance officer as a central point of contact for law enforcement agencies in connection with any worksite enforcement activities. An immigration compliance officer has three key responsibilities in the event of a site visit by immigration enforcement officers: first, to serve as a crucial point of contact between the company’s legal team and its immigration counsel; second, to coordinate between the legal team and site personnel to ensure that local personnel behave in a manner that is compliant with the law while also preserving the employer’s rights; and third, to be familiar with the company’s immigration records and procedures so he or she is able to respond to basic government questions in the absence of counsel.

Train Personnel Who Interface With the Public. Another good practice is to train personnel who may encounter an immigration enforcement officer at an employer site (typically a receptionist, cashier, or site manager) to request a copy of the officer’s credentials (i.e., badge and business card), not to disclose any information, and to direct all inquiries and requests for site access to the immigration compliance officer. Employers may also wish to consider designating primary authority for granting access to facilities or documents to the immigration compliance officer. Despite the desire to be helpful, employees will best serve the company’s interests by being polite and respectful while firmly adhering to this standard procedure.

Develop Practical Standard Operating Procedures and Guides. The stress of a site visit may cause otherwise capable employees to make less than optimal decisions or ill-advised statements to officers. Whether this stress is caused by the shock and awe of a full-scale ICE worksite raid or the mere intimidation of being questioned by a federal agent, it can present risks for employers. Having well-thought-out field guidance prepared in advance may be the deciding factor in effective preservation of employer rights.

Practical field guidance that employers may wish to consider include a list of “dos and don’ts” and a list of steps to follow when immigration officers appear on-site. These guides can anticipate real-world situations that may arise. (What if an officer appears to be detaining employees for an extended period of time? What if an officer has no warrant but insists on accessing the site anyways? What if an officer asks about a specific employee? What if an officer is simply hanging around the parking lot and questioning employees? What if an officer appears to be exceeding a search warrant?) There are many ways a site visit could take an unexpected turn, and employers may want to be prepared for these possibilities.

Clean House and Keep It in Order. The best defense is full compliance. As part of a regular compliance best practices regimen, many employers conduct regular in-house I-9 audits (at least annually) to ensure that their I-9 forms are properly completed, retained, and corrected as applicable. Employees responsible for I-9 completion may benefit from regular training on I-9 procedures to help them keep abreast of the latest changes to the I-9 forms and rules. A company I-9 compliance program is another tool that provides guidance to employees who have I-9 responsibilities.

By ensuring proper I-9 completion (including following all correct procedures for completing I-9 forms), an employer not only reduces its risk of monetary penalties from paperwork violations but likewise reduces the risk of penalties arising from employment of an unauthorized worker.

Key Takeaways

Many changes have occurred in recent months, including: increased I-9 penalties, the issuance of a new Form I-9, and now, the emergence of the Trump administration’s immigration agenda, which appears to carry a “zero tolerance” focus. In this new enforcement climate, employers may want to shore up their internal compliance procedures and familiarize themselves with their rights in the event of enforcement activities.

Summer Hiring – Are You Ready?

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It may be hard to believe, but summer is less than six weeks away.

More than four out of every 10 employers plan to hire seasonal workers for the summer, according to a survey released last week by the job search website CareerBuilder.

If you are one of them, be sure you consider some of the potential compliance challenges that can arise when hiring summer help.

Child Labor

Will you be hiring minors? If so, it’s important to bear in mind that federal law and most state laws restrict the hours during which minors may work, including:

  • The maximum number of hours and/or days a minor may work per week;
  • The maximum number of hours a minor may work per day; and
  • Certain timing restrictions such as the times of day during which minors may work and any restrictions forbidding a minor from working while school is in session.

Many child labor laws also forbid minors from working in certain occupations, require employers to maintain proof of age for all employees, and more.

Unpaid Interns

Almost all interns should be classified as employees. As a result, you usually can’t just pay them with “valuable real-world experience”; you have to pay them cold, hard cash – the applicable federal, state or local minimum wage, whichever is highest, for all hours worked. In very rare cases in which an internship meets certain very strict criteria, it’s possible to have an unpaid internship. If you do, be sure to follow these steps.

Coverage Thresholds

Most federal and state employment laws include coverage thresholds. These laws do not apply to smaller employers, depending on their size. A few laws exclude summer hires and other temporary employees from their coverage thresholds. For example, the federal Family and Medical Leave Act applies only to employers that have employed 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year. But under most other laws, summer hires could mean the difference between having to comply with a law and not.

Joint Employment

If you’re hiring summer help from a temporary staffing agency, don’t forget that there is a possibility you could be considered a joint employer under a variety of employment laws. In fact, the Occupational Safety and Health Administration says that “staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers – including, for example, ensuring that OSHA’s training, hazard communication, and recordkeeping requirements are fulfilled.”

Should you have any questions, please contact her HR Representative at 925-556-4404.

Both the City of San Diego and the State of California “Clarify” Their Sick Leave FAQs

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As we recently reported regarding the City of Los Angeles, both the City of San Diego and the California Department of Labor Standards Enforcement (“DLSE”) have updated their “Frequently Asked Questions” (“FAQs”) related to the respective local and state sick leave requirements. Below are some of the more salient points from each.

 

San Diego Earned Sick Leave

Similar to the City of Los Angeles’ recent changes, the City of San Diego updated its FAQs related to the City’s earned sick leave ordinance as applied to employees who are “salaried” and not “entitled to payment of minimum wage” by stating that they are not entitled to earned sick leave under the ordinance. Presumably, such employees may include those who are exempt “white collar” employees.

Regardless of coverage under the San Diego ordinance, employers still must comply with state law, which mandates provision of sick leave to nearly all employees.

California State Paid Sick Leave

The DLSE issued additional FAQs regarding the state law.  Specifically, these updated FAQs address questions regarding “grandfathered” paid time off policies (or PTO plans in effect prior to January 1, 2015), rates of pay, and the impact of state law on employer attendance policies.

  • Grandfathered Plans

The FAQs elaborate on how a “grandfathered” PTO plan will comply with state law. These further criteria include:

(1)  the existing policy or plan makes an amount of paid leave available that could be used for at least as many paid sick days as required under state law; and

(2)  that satisfies one of the following criteria: (a) the time off may be used under the same or more favorable conditions as specified under state law; or (b) that the plan contains more favorable conditions to employees than required under state law (e.g., provides more sick days or a more favorable accrual rate, etc.).

Please note these criteria are in addition to other accrual requirements set forth in the statute and earlier FAQs.

  • Rate of Pay

 The FAQs confirm that the state law does not impact how employers must compensate employees under existing PTO plans for time that is taken off for purposes other than paid sick leave, e.g., vacation, etc.

  • Attendance Policies

The FAQs address the impact of state paid sick leave on employer attendance policies. According to the FAQs, if an employee has accrued or available sick leave, an employer’s attendance policy cannot assign an “occurrence” or apply “points” for an absence covered under state law.

Moreover, if an employee does not have any accrued or available paid sick leave and if the employee has an unscheduled absence for a reason covered under state law and which otherwise violates the employer’s attendance policy, state law does not prohibit the employer from giving the employee an “occurrence” for such absence.  Importantly, the FAQs provide that state law, “does not ‘protect’ all time off taken by an employee for illness or related purposes; it ‘protects’ only an employee’s accrued and available paid sick leave as specified in the statute.

Clients should review their policies and practices and if you should have any questions, please contact your HR Specialist at 925-556-4404.

Employers Should Review Form I-9 for SSN Glitch

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Employers that downloaded Form I-9, Employment Eligibility Verification, between November 14 and November 17, 2016, are advised to immediately review any of the forms they used to ensure their employees’ Social Security numbers (SSNs) appear correctly in Section 1. US Citizenship and Immigration Services (USCIS) has discovered a “glitch” that occurred when the revised Form I-9 was first published on November 14, 2016.

When employees completed and printed Section 1 of the affected form using a computer, numbers entered in the SSN field were automatically changed. For example, if an employee entered the number 123-45-6789 in the SSN field, the number would appear as 123-34-6789 when the form printed.

Employers using any I-9s that contain this error are advised to download and save a new Form I-9. These employers should also tell affected employees to draw a line through the transposed SSN in Section 1 of their printed forms, enter the correct SSN, and then initial and date the change. These employers should also include a written explanation with the affected I-9s about why the correction was made in case there is a future audit.

USCIS notes that it immediately repaired and reposted the form on November 17, 2016, so any forms printed out after that date would not have been affected.

The importance of correctly completing Form I-9 cannot be understated. Employers and employees are required to complete the form to both verify the identity of their employees and confirm that the employees are authorized to work in the US. Employers are prohibited from knowingly hiring or continuing to employ an unauthorized individual and can be subject to monetary and/or criminal penalties for hiring or continuing to employ an unauthorized individual.

California Seeks to Raise Minimum Salary for White Collar Exemptions

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The minimum salary to qualify for a “white collar” overtime exemption in California has been higher than that required under federal law for many years.  Because California’s exempt salary threshold is tied to the state minimum wage (an exempt employee generally must earn a salary of at least two times the state minimum wage), it goes up as California’s minimum wage goes up.  The current minimum salary for exempt executive, administrative, or professional status in California is $43,680 per year.  However, as employers know, last year the federal Department of Labor enacted regulations increasing the minimum salary to qualify for exempt status under the federal Fair Labor Standards Act (“FLSA”) to $47,476 per year.  California employers would have had to comply with the higher salary threshold under the FLSA, except that the regulations were blocked by a Texas court late last year.  The Texas court’s ruling is now on appeal, but most believe that the overtime regulations will not be reinstated — at least in current form — under the Trump administration.

California is now seeking to accomplish what the Obama administration could not accomplish at the federal level, by proposing to raise the minimum annual salary to qualify for exempt status in California to $47,472.  AB 1565 (Thurmond) is a spot bill that was amended on Tuesday to propose the salary hike.  Under the bill, the minimum salary for exempt executive, administrative, or professional workers would be $47,472 or twice the state minimum wage, whichever is greater. As California’s minimum wage continues to rise, a salary of twice the state minimum wage eventually will be a number greater than $47,472. Until that time, $47,472 would be the minimum salary for exempt status in California.

This is brand new proposed legislation, and it remains to be seen whether it will pass.  We will keep you posted of developments on this issue. If you should have any questions, please contact your Stratton Agency HR Specialist at 925-556-4404.

California Court Approves $700,000 Settlement for Seating Claim Brought By Retail Employees

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The effects of the California Supreme Court’s latest interpretation to provide seating to workers are beginning to show, as the United States District Court for the Central District of California recently approved a $700,000 settlement against a major retail clothing company for failure to provide seating in a representative action involving the Private Attorneys General Act of 2004, California Labor Code Section 2698, et seq., (PAGA).

In 2011, an employee brought a representative action under the PAGA against Abercrombie & Fitch Stores (A&F) on behalf of about 10,000 workers for failing to provide suitable seating to their employees as required by California Labor Code Section 1198 and Industrial Welfare Commission Wage Order 7-2001, Section 14.  See Echavez v. Abercrombie & Fitch Co., Inc., et al., Case No. CV 11-09754-GAF (C.D. Cal. Mar. 23, 2017). The then-presiding district court judge granted summary judgment in favor of A&F. The court interpreted Wage Order 7-2001 to mean that the job in question was a “standing job” because the majority of the tasks the plaintiff and similarly situated employees performed during their shifts necessitated standing, and therefore A&F had no duty to provide seats to these employees except during their breaks. The plaintiff filed an appeal.

Meanwhile, in another representative action involving a seating claim entitled Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192 (9th Cir. 2013), the Ninth Circuit certified similar questions to the California Supreme Court regarding the interpretation of Wage Order 7-2001. The plaintiff and A&F agreed to stay plaintiff’s appeal pending the California Supreme Court’s ruling in Kilby. Eventually in April 2016, the California Supreme Court tendered its ruling in Kilby, holding that the requirement to provide seats depends on the individual tasks being completed and not the general, bigger-picture work being performed during the entire work shift (the Kilby analysis can be found in a prior FordHarrison Legal Alert: California Supreme Court Tells Both Sides To Sit Down.

Following Kilby, the Ninth Circuit lifted the stay in Echavez¸ and the parties settled plaintiff’s PAGA claims in late 2016.  Because a PAGA settlement statutorily requires court approval, the parties filed a joint motion for the district court to approve the PAGA settlement, providing a chance for the State of California’s Labor & Workforce Development Agency (LWDA) to respond, which it did not. Per the settlement agreement, the total amount of the settlement is $700,000, consisting of $340,000 in PAGA penalties and $360,000 in attorneys’ fees and costs to be paid to plaintiff’s counsel.  As part of the settlement, A&F also changed its seating policies consistent with the Kilby decision.

The district court approved the $700,000 settlement as fair and reasonable despite finding that the plaintiff’s seating claim could have resulted in at least $881,800 in civil penalties (based on A&F’s projection of 8,818 aggrieved employees). The court also astonishingly approved the attorneys’ fees of $360,000 as well, even though that is more than the total amount of civil penalties the aggrieved employees and LWDA are receiving from the settlement.

Employers’ Bottom Line

Given the amount of the settlement and the attorneys’ fees that were viewed by the court as “reasonable” in Echavez, it is foreseeable that similar types of seating claims will continue to be filed in the future. As such, employers are strongly advised to have their seating policies and practices reviewed to ensure compliance with these standards and to avoid these types of lawsuits and potential civil penalties.

If you should have any questions, please contact your Stratton Agency HR Specialist!

What Employers Need to Know About Immigration Raids on Their Premises

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Restaurateurs and other employers usually are not experts in conducting forensic evaluations of work authorization documents — nor are they expected to be. According to some Pew Research Center estimates, 20 percent of cooks in restaurants nationwide and at least 30 percent of dishwashers who may be undocumented nevertheless succeed in being hired as legal employees. Their employers then proceed to withhold taxes and Social Security based upon documentation of work authorization that went unrecognized as false.

Restaurants historically have been targets of U.S. Immigration and Customs Enforcement (ICE) raids and, as the Trump Administration Department of Homeland Security and ICE broaden their enforcement priorities, more raids could occur.

An ICE raid implicates potential civil and criminal charges. Therefore, it is essential to consult with counsel on these matters. The below overview provides employers with basic considerations in advance of a possible ICE raid.

How to Prepare for a Possible ICE Raid

  • Identify a first responder (and a back-up) who initially will interact with the ICE officer(s) and accompany the officer(s) while they are on your premises.
  • Advise your employees that if a raid occurs, they should not block, interfere, or engage in any hostilities with the ICE officers as the officers conduct their activities.
  • Inform your employees that they have a right to talk, and not talk, with ICE officers if they like. However, do not direct employees not to speak to agents when questioned.

What to Do if a Raid Happens

  • ICE needs a search warrant. Be sure to ask to see the warrant, examine it to see if it grants entry to your premises and that it is properly signed.
  • You can contact your attorney immediately, but ICE will not delay the raid to wait for your attorney.
  • Do not engage in any activities that could support a harboring charge, such as hiding employees, aiding in their escape from the premises, providing false or misleading information, denying the presence of specific named employees, or shredding documents.
  • After the raid, contact the families of any detained employee, debrief your staff, and make notes for your attorney as a privileged attorney-client communication.

Employees Paid on Commission Are Entitled To Separate Compensation For Rest Periods

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In Vaquero v. Stoneledge Furniture LLC, B269657 (Feb. 28, 2017), a California Court of Appeals has ruled that employers must separately compensate commissioned employees for rest breaks. Here is an overview of the case and considerations for employers in light of this new decision.

Employees Claim Commission Plan Violates Wage Order

Stoneledge Furniture LLC (“Stoneledge”) paid its sales associates on a commission basis. If a sales associate failed to earn guaranteed “minimum pay” of at least $12.01 per hour in commissions in any pay period, Stoneledge paid the associate a “draw” against future advanced commissions to ensure payment of $12.01 per hour in the current pay period. Then, in future pay periods when employees exceeded $12.01 per hour in commissions, the excess was deducted as necessary to reimburse Stoneledge for the advances. Stoneledge permitted employees to take rest breaks but did not provide any separate compensation for the break time.

Former sales associates filed a class action lawsuit alleging that Stoneledge failed to pay for rest periods as required by California law. Stoneledge filed a motion for summary judgment, arguing that the guaranteed minimum pay covered all hours worked, including rest periods. The trial court agreed with Stoneledge and found that the payment system specifically accounted for all hours worked and guaranteed that sales associates would be paid at least $12.01 per hour for those hours. Thus, there was no possibility that rest periods would not be captured in the total amount paid each pay period.

Rest Periods Must Be Separately Compensated From Commissions

The California Court of Appeals disagreed. According to the court, the plain language of Wage Order 7, which applied here, requires employers to count rest periods as “hours worked for which there shall be no deduction from wages.” (Note that the other Wage Orders contain similar language.) The court pointed to two prior California Court of Appeals cases involving separate compensation for rest periods and other nonproductive time when employees cannot earn wages. In one case, the court held that a piece-rate compensation plan was required to separately compensate employees for rest periods where the plan did not already include a minimum hourly wage for such time (this requirement has since been codified at Cal. Labor Code Section 226.2). The other case held that averaging wages for productive time across multiple pay periods to comport with minimum wage laws as to productive and nonproductive time failed to comply with the Wage Orders.

Even though these cases did not expressly apply to commissioned employees, the Stoneledge court concluded that the Wage Order rest period pay requirement applies equally to commissioned employees, employees paid by piece rate, and any other compensation system that does not separately account for rest periods or other nonproductive time. The court noted that the commission agreement used by Stoneledge was “analytically indistinguishable from a piece-rate system in that neither allows employees to earn wages during rest periods.”

Thus, the court held that commissioned employees must be separately paid for rest periods even if their compensation agreement provides “draws” and “advances” designed to comply with minimum wage laws as to selling time. Because the Stoneledge agreement did not include a component to directly compensate sales associates for rest periods, it violated California law requiring paid rest breaks. The court also noted that the advances and draws against future commissions “were not compensation for rest periods because they were not compensation at all. At best they were interest-free loans.”

Considerations For Employers

Employers that use commission-based compensation for employees who are entitled to rest periods should review their policies and practices to ensure that rest periods are accounted for and separately compensated at a set rate that is at least the minimum wage. The same is true for employers that use any other compensation system that does not separately account for rest breaks and other nonproductive time. The safest option is to provide commissioned employees a guaranteed minimum plus commissions, rather than a draw against commissions.

Finally, this case does not mean that employers are without recourse against “lazy sales associates,” as the court called them, who intentionally engage in excessive unproductive time during the work day to drive up their wages. As the court indicated, employers have options, such as disciplinary procedures, to manage employees who do not meet sales or other performance expectations.

 

If you should have any questions, please contact your Stratton Agency Human Resources Specialist at 925-556-4404.

California’s Expanding Fair Pay Act

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The California Fair Pay Act (CFPA) took effect a little over a year ago (January 2016) but already has been expanded to:

  • Ban the use of prior salary to set employee pay; and
  • Prohibit pay differences based on race and ethnicity (in addition to gender) between employees performing substantially similar work.

Effective January 1, 2017, salary history alone cannot be used to justify any disparity in compensation between employees doing substantially similar work. Recall that under the CFPA, neutral pay factors used to explain a pay disparity between men and women (and now employees of different races and ethnicities) must “account for the entire wage differential.”  Thus, for instance, a newly-hired female making $50,000 in her prior job must be paid the same as a male doing “substantially similar work” with the same relevant qualifications.  And, while a difference in pay for the newly-hired female might be explained by differences in other factors, such as experience and education, a lower prior salary alone no longer is sufficient to justify that difference.

Massachusetts, Philadelphia and now Puerto Rico already have banned employers from asking candidates about salary history, and several other states and cities are considering similar bans.

The CFPA also now prohibits employers from paying “any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”

Remember that under the CFPA, employers can no longer rely on the notion of equal pay for equal work. Instead, the state adopted a “substantially similar work” test for determining which jobs can be compared, which is decidedly more expansive.  This allows employees and courts to compare wages of employees who perform similar work, even across job titles.  Furthermore, comparisons are no longer limited to the “same establishment.”

California already had strong laws regarding equal pay. With the passage of these amendments, employers need to be proactive in examining their pay practices to ensure compliance and find and fix any issues.

If you should  have any questions, please contact your Stratton Agency HR Specialist at 925-556-4404.

Sexual Harassment Still Ranks High on EEOC’s Radar

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Sexual harassment claims remain all too common on the evening news and in courts across the nation. From recent allegations against on-demand driving giant Uber to jewelry stores Kay and Jared, the stories are hard to miss.

Despite the fact that Title VII of the Civil Rights Act long ago declared harassment illegal, it nevertheless persists in too many workplaces of today. In fact, the Equal Employment Opportunity Commission (EEOC) reports that harassment claims have increased and now make up almost one-third of all EEOC charges. Thus, the EEOC views harassment as a Strategic Enforcement Priority.

What’s more, the EEOC is seeking to add teeth to its harassment guidance. Based on the proposed guidance, here are some tips and strategies for preventing and addressing harassment.

Recognize the Broad Scope of Harassment

The EEOC uses a broad definition of harassment that goes beyond Title VII, as it may be based not only on sex (and sex stereotyping) but various other protected class statuses, including race, color, national origin, religion, age, disability, sexual orientation, gender identity, genetic information and pregnancy.

Harassment may also occur between members of the same protected class. And, the EEOC notes, an employer may also be liable for harassment based on:

• Perceived membership in a protected class (even if ultimately incorrect);
• Association with individuals who have a protected characteristic;
• Alleged harassment that was not directed at the complainant,
• Harassment on social media networks;
• The intersection of two or more protected characteristics (female and Asian); or
• Where the identity of the harasser is unknown and/or anonymous.

Have Management Lead by Example

Commitment from upper management and senior leaders to eradicating harassment in the organization is essential to creating and maintaining a culture of respect with zero tolerance for harassment.

Management needs to ensure that there are sufficient resources to undertake effective harassment prevention strategies such as policy implementation and training. Leaders also need to assess any factors that increase the risk for harassment and work to minimize or eliminate such risk.

Develop and Enforce a Harassment Policy

It is critical to develop, communicate and enforce a written antiharassment policy and provide examples of lawful and unlawful conduct. The policy should Include a multichannel complaint procedure permitting individuals to bring complaints to various member of management and encouraging reporting of questionable conduct. Further, the policy should state that the employer will promptly and thoroughly investigate the allegations and take immediate and proportionate action if it determines that harassment has occurred. The policy should also provide that all information obtained during the investigation will be kept confidential and the complainant will not be retaliated against.

Implement a Multichannel Harassment Complaint Procedure

It is critical to implement an effective multichannel complaint procedure encouraging supervisors and employees to report harassing conduct and allowing complaints to be brought to various members of management. The complaint procedure should:

• Promise claims will be investigated and that appropriate discipline will be imposed for misconduct;
• Ensure that the complainant’s privacy will be protected and they will not be retaliated against; and
• Be translated into all languages commonly spoken in the employer’s workplace.

Investigators should be trained, objective and neutral and each step of the investigation process should be documented from the intake of the complaint, to the scope of the investigation, to the resolution. A written report should also detail the investigation, findings, recommendations and any disciplinary, corrective or preventative actions taken.

Provide Harassment Training

It is critical to provide antiharassment training that is comprehensive, regular and interactive. The training should be:

• Supported by senior leaders;
• Provided at all levels and locations of the organization;
• Regularly reinforced;
• Tailored to each specific workplace; and
• Evaluated and amended on a routine basis.

Supervisors and managers should receive additional training on how to identify, stop, report and correct harassment and avoid retaliation and must understand that failing to do so may result in liability.