New Driver’s License Law
Question: I recently heard that there is a new law that limits an employer’s ability to include language such as “must possess a valid driver's license” on job applications. Is that true?
Answer: Yes. Governor Gavin Newsom recently signed into law Senate bill 1100 (“SB 1100”) which places restrictions on when an employer may indicate on a job applications and other material that an employee must possess a driver's license. The new law is effective January 1. California law already prohibits employers from discriminating against employees without a standard driver's license. The new law builds on this effort to promote fair employment practices and reduce barriers to employment by placing limitations on when an employer can make possession of a valid driver’s license a condition of employment. SB 1100 amends the California Fair Employment and Housing Act (“FEHA”) to prohibit employers from discriminating against applicants and employees who lack any driver's license, at all.
SB 1100 prohibits employers from stating that applicants and employees must possess a valid driver's license unless driving is one of the required job functions. SB 1100 also prohibits employers from including in a job advertisement, posting, application, or other material that the applicant must have a driver's license. While the new law does not define “other materials,” employers are encouraged to review their pre-employment materials, employee handbook, job descriptions, and policies to ensure that they also satisfy the new requirements of SB 1100.
To be clear, SB 1100 is not an outright prohibition on indicating on job postings that applicants and employees must have a driver’s license. SB 1100 still allows employers to indicate that applicants and employees need to possess a valid driver's license if driving is one of the expected job functions. For the exception to apply, the employer must determine whether the job position satisfies two conditions. The first condition is that the employer must reasonably expect driving to be one of the job functions of the position. The second condition is that the employer must reasonably believe that satisfying the job function using an alternate form of transportation would not be comparable in travel time or cost to the employer. SB 1100 lists examples of alternate forms of transportation, which includes, but is not limited to, using a ride hailing service, taking a taxi, carpooling, bicycling, or walking. In other words, an employer cannot require an applicant or employee to possess a valid driver’s license unless the employer reasonably anticipates driving to be an essential job function that cannot be comparably performed by an employee using an alternate mode of transportation.
Now is a good time for employers to ensure compliance with SB 1100. Employers should review their job advertisements, job postings, applications, and other materials and evaluate which job positions require driving, and which do not require driving. Next, , and by January 1, employers should update their job postings and other such materials to ensure that statements about requiring a driver's license are removed from all job positions where driving is not a required job function. Employers should also update any employee handbooks and policies accordingly. Finally, employers should ensure that those responsible for recruiting and hiring are aware of the new requirement concerning driver’s licenses.
Employers with questions about SB 1100 may contact their labor counsel or HR consultant.
Onboarding New Hires
Question: I just hired a new employee for the first time in a while. What steps should I take and what should I consider when onboarding this employee?
Answer: Onboarding is a process that helps new employees learn about their job position, the company culture, and the employee’s new colleagues. Onboarding also enables the employee the opportunity to complete any necessary paperwork and provide any needed information to their new employer. Employers should establish consistent onboarding procedures and timelines. This will help employers ensure legal compliance and track the documents and information they provide to and receive from employees.
Before an employer makes a job offer, the employer should consider whether there are any conditions on that offer. For example, if the employer has not yet verified the employee’s work authorization or completed an employer-required background check, the employer should notify the employee that the job offer is contingent upon satisfying those conditions. Prior to the new hire’s first day, employers should inform new employees about their start date, where to report and any required documents they may need to bring on their first day.
The employee’s first day should be engaging and informative. Employers should consider a welcoming event such as providing coffee or breakfast to allow new hires to meet colleagues in a relaxed setting. Providing new hires with a contact person or mentor can help new employees transition into their new role by providing guidance and support. Employers should create a structured orientation session for new hires that covers topics such as company history, its mission and values, and practical information about payroll, benefits, and compliance. This is also a time to provide the employee with the employee handbook and any required pamphlets and notices. Employers should also discuss company policies, procedures, and expectations. Onboarding is also a time for employees to ask questions. Accordingly, employers should consider building question and answer sessions into their onboarding process.
During the onboarding process, employees should complete all forms such as employee contact information, emergency contact information, Form I-9, etc. Additionally, new hires should complete any necessary tax and payroll forms such as the W-4, and potentially a direct deposit authorization form, to ensure accurate payroll processing.
Employers should provide the new employee with an overview of available benefits, including health insurance, retirement plans, and paid time off. Providing detailed information allows new hires to make informed decisions about benefits and reinforces the company’s commitment to employee well-being.
It can be helpful to inform new employees how to access the online employee portal, if applicable, to allow employees to further familiarize themselves with company resources and policies. Similarly, employees should provide employees with any necessary company equipment, such as cell phones and laptops, and enable access to the employer’s computer resources.
Onboarding is also a good time to begin any required training sessions. Such training may include legally-required training, safety training, and/or any company-specific training. Examples of legally required training can include sexual harassment prevention training and also workplace violence prevention training. A training plan may also include modules that inform employees about workplace-specific safety procedures. Employers may even use onboarding as an opportunity to provide company-specific training that covers job-related procedures and using and accessing company resources and online applications.
Having an established onboarding process creates a welcoming environment for new hires and also ensures that employers obtain necessary employee-related information and compliance with legal obligations.
New Drug Testing Requirements for Bars and Night Clubs
Question: As a bar owner, do I need to provide drug testing kits to patrons after July 1, 2024?
Answer: Yes. Beginning July 1, 2024, California Assembly Bill 1013 (“AB 1013”) requires certain alcoholic beverage license holders to offer drug testing devices for sale for a reasonable amount or at no cost to patrons.
The new law applies to establishments with a Type 48 license (including interim operating permits) from the California Department of Alcoholic Beverage Control (“ABC”). In general, Type 48 licenses are issued by the ABC to bars and night clubs where minors may not enter and remain, and food service is not required. There are about 2,500 Type 48 licenses in California. The new law does not apply to businesses holding an ABC Type 41, 47 or 75 license, which cover establishments such as convention centers, exhibit halls, auditoriums, ball parks, stadiums, coliseums, hotels, motels, certain marine parks, wineries or beer manufacturers.
The purpose behind AB 1013 was help prevent drink spiking that could lead to the commission of other crimes, including sexual assault and rape. With that purpose in mind, the new law requires bars and night clubs to make drug testing devices available to customers for free or at a reasonable price based on the wholesale cost. Such drug testing devices include test strips, stickers, straws, and other devices that detect the presence of controlled substances in beverages. Examples of controlled substances that the drug testing device are designed to detect include, but are not limited to, flunitrazepam, ketamine, and gamma hydroxybutyric acid, also known by other names, including GHB, gamma hydroxybutyrate, 4-hydroxybutyrate, 4-hydroxybutanoic acid, sodium oxybate, and sodium oxybutyrate.
Covered establishments must ensure that all testing devices offered to customers have not exceeded their expiration date or recommended period of use, according to the product label, product packaging, or otherwise recommended by the manufacturer. According to the ABC’s frequently asked questions page, there are drug testing devices that can be readily purchased in bulk for less than $1.00 per device. The ABC will not sell or provide kits and does not recommend or endorse any specific company that does. This means that covered licensees are responsible for selecting and procuring their own testing kits.
Type 48 license holders must also post a warning in their establishments that states: “Don’t get roofied! Drink spiking drug test kits available here. Ask a staff member for details.” The sign must be placed in prominent and conspicuous location. This means the sign must be clearly visible and readable to patrons. California’s ABC provides a printable version of such a sign on its website at: https://www.abc.ca.gov/wp-content/uploads/2024/01/ABC-1013-N.pdf.i
The new law also provides that a Type 48 licensee cannot be held liable for a defective test or inaccurate test result, including, but not limited to, a false positive or false negative test result.
A violation of the new law is not a crime. However, if a covered license holder violates the law, the ABC may impose an administrative action, which may impact the holder’s license.
The new law is scheduled to be repealed on January 1, 2027 unless otherwise extended by the Legislature. Covered license holders with questions about this new law are encouraged to contact the ABC or consult with their legal counsel.
Exempt Employee Salary Requirements
Question: I heard the Department of Labor changed the salary threshold for employees who are exempt from overtime pay. Does this mean some of my California employees are now exempt from overtime pay requirements?
Answer: The new Federal minimum salary for classifying employees as exempt will have little effect on California exempt employees because the California minimum salary for exempt employees is higher than the new Federal salary threshold.
To be properly classified as an employee who is exempt from overtime pay requirements the employee must earn a minimum salary and perform specified exempt job duties. On April 23, 2024, the federal Department of Labor (“DOL”) announced a final rule increasing the minimum Federal salary requirements for classifying executive, administrative, professional, outside sales, and computer employees as exempt from Federal overtime requirements. Beginning July 1, 2024, the Federal regulations will require employees who qualify for these exemptions to earn a minimum salary of $844.00 per week/$43,888.00 per year. Then, on January 1, 2025, that amount will increase again to $1,128.00 per week/$58,656.00 per year.
This announcement prompted many California employers to wonder whether the DOL’s rule will significantly change the minimum salary for exempt employees in California. Importantly, the DOL rule and Federal change in exempt salary minimum will have little impact on the salary requirement in California because the California minimum salary for exempt employees remains higher than the Federal salary requirement.
Both Federal and California laws require the payment of overtime to employees. Likewise, they both provide specific, limited exceptions for excluding certain employees from overtime pay requirements. California employers must comply with whichever overtime laws are more favorable to the employee. Because California’s laws regarding classification of employees as exempt are normally more favorable to employees than Federal law, California employers must follow the California minimum salary requirements and duties tests for exempt employees.
To satisfy California’s minimum salary requirement for exempt executive, administrative, and professional employees, such employees must earn a predetermined minimum monthly salary of at least twice the state minimum wage for full-time employment. This amount changes based on California’s existing minimum wage. Currently, employees must earn a minimum monthly salary of at least $5,546.67, which is an annual salary of $66,560.00. The exempt salary minimum is different for qualifying fast food, healthcare, and outside sales workers, computer professionals, and physicians.
The DOL’s rule also increases the salary minimum for the Federal overtime exemption for highly compensated employees. This Federal exemption applies to employees in high-level, highly compensated positions who are 1) paid at least $684.00 per week, annualized to at least
$107,432.00, 2) primarily performing non-manual work, and 3) customarily and regularly performing at least one of the exempt duties of an exempt executive, administrative, or professional employee. However, there is no California exemption for highly compensated employees. To qualify under California’s executive, administrative, or professional overtime exemptions, the employee must spend at least half of their time performing specific exempt duties. Consequently, the Federal exemption for highly compensated employees is inapplicable to California employees because California’s exemption requirements are more favorable to employees.
California employers should take care when classifying employees as exempt from overtime and be certain to follow the correct law. The exemption analysis is based on both the employee’s salary and specific job duties and is fact dependent.
Gender Identity and Expression Harassment
Question: I follow California’s requirements for posting notices and providing harassment prevention training to my employees, but do I need to address situations where customers and co-workers harass and employee because of the employee’s gender identity or expression?
Answer: Yes, an employer can be liable when customers, co-workers, or other third parties harass an employee because of their gender identity or expression. The U.S. Equal Employment Opportunity Commission (“EEOC”) recently settled a case filed against a bar and pizzeria in New York state. In its complaint, the EEOC alleged that the owner, staff, and customers of the bar/pizzeria harassed and discriminated against an employee who is a transgender man.
The complaint alleged that during the claimant’s employment, the owners, managers, and employees regularly harassed the employee by making numerous unwelcome comments to the employee, such as saying, “he was not a real man.” Co-workers and customers also misgendered the employee by intentionally using female, instead of male, pronouns daily. The employee made several complaints to his manager about the situation, yet nothing changed in the workplace.
In fall 2023, the EEOC released proposed guidance on addressing harassment in the workplace that also addresses harassment based on sexual orientation or gender identity. Some examples of improper harassment include: 1) epithets regarding sexual orientation or gender identity; 2) physical assault; 3) harassment because someone does not present themselves in a stereotypical manner; or 4) misgendering by intentionally and repeatedly using a name or pronoun inconsistent with the individual’s gender identity.
The EEOC’s proposed guidance also included a hypothetical of harassment where customers at a fast-food restaurant intentionally misgendered a cashier; but rather than address the harassment; the employer improperly reassigned the employee to duties away from customers.
While the EEOC has yet to finalize its guidance, that proposed guidance, along with the EEOC’s recently settled case, demonstrate the EEOC’s commitment to addressing and enforcing the laws prohibiting harassment and discrimination based on sexual orientation and gender identity in the workplace.
California law also prohibits harassment based on gender identity or expression. Last year, the California Civil Rights Department settled a case against an Oakland Shake Shack restaurant whose management, rather than correcting misgendering behavior in the workplace, told an employee that he would instead have to explain his gender to co-workers.
Employers should take steps to ensure that employees are properly addressed by the name and pronouns that correspond with their gender identity or gender expression. Employees need not take any significant steps, such as legally changing their name or birth certificate, in order to use a name and/or pronouns that correspond with their gender identity or gender expression in the workplace. While an employer may be legally obligated to use an employee’s legal name in specific employment records, absent a legal obligation, employers must respect an employee’s chosen name and pronouns.
These settlements serve as a reminder that despite increased awareness, employers must continue to take steps to eliminate improper treatment concerning an employee’s gender identity or expression. Employers should work to create a workplace environment that respects employees’ self-identification, avoids stereotypical assumptions, and ensures that co-workers, customers and third parties do so as well. If necessary, the employer or supervisor should step in to address situations where a customer is engaging in harassing behavior toward employees.
Can an Employee Rescind a Resignation
Question: One of my employees sent me an email resigning from their job, and then later told me they wanted to take it back. Can I refuse and let the employee go because they already resigned?
Answer: An employer does not necessarily need to accept the employee’s request to withdraw their resignation. However, several factors should be considered before making a decision, particularly in light of the expenses associated with recruiting and training new staff. It is prudent to talk to the employee about their reason(s) for submitting their resignation.
For example, the employee may state that they submitted their resignation because they were having to relocate across the country due to their spouse’s job transfer, or military transfer, but the transfer later fell through. In that instance, the employer may be more inclined to retain the employee because the reason the employee resigned was based on outside circumstances.
During such discussions, the employee may disclose that the reason for submitting the resignation was because of feelings about the employee’s job duties or conditions in the workplace. The employee may be resigning because of dissatisfaction with their compensation, feeling unchallenged in their job position, certain aspects of the job position, or questioning the role of their job within the company. By having this discussion, the employer can evaluate whether it wishes to salvage the employment relationship by making adjustments to address the employee’s concerns. Some optional adjustments include revising job duties, adjusting workflow, or revising compensation. The employee may also disclose potential discriminatory, harassing, or hostile work environment behavior in the workplace. In that case, the employer will likely need to initiate an investigation into the allegations, and it may also be prudent to allow the employee to rescind the resignation and remain employed while the investigation is conducted, and any inappropriate conduct is remedied.
If the employer cannot, or does not want to, make any such adjustments, or otherwise explore the possibility of salvaging the employment relationship, then the employer can accept the employee’s resignation and decline the employee’s request to rescind the resignation. Even if the employer decides to accept the resignation, having a discussion with the employee may still provide some insight into ways the employer could improve employee retention in the future.
For purposes of unemployment benefit eligibility, attempting to rescind a voluntary resignation does not change the nature of the separation. According to the Employment Development Department, “A clear and unequivocal resignation causes the employee to become the moving party to the separation. The employer has the right to accept such resignation at face value and take the normal actions to replace the resigning worker. The employer is under no obligation to accept the proffered withdrawal of the resignation. The unilateral action of the claimant in attempting to rescind her resignation does not make the employer the moving party to the separation and does not convert a voluntary leaving into a discharge.”
Finally, employers should be careful, and consult with counsel, in those situations where the employee rescinds their resignation, but the employer has already extended a job offer for that same position to another individual. Such a situation could create a risk of liability if the employer decides to retain the employee and withdraws the job offer to the applicant.
New Reproductive Loss Leave of Absence
By Bradley Levang
On October 10, 2023, Governor Gavin Newsom signed into law Senate Bill 848. This new law creates Government Code section 12945.6, which provides eligible employees with up to five days of unpaid, job-protected leave following a reproductive loss event. SB 848 will take effect on January 1, 2024.
The new law applies to both employers having five or more employees and public employers. Employees who are employed for at least 30 days prior to commencement of the leave are eligible to take reproductive loss leave.
SB 848 defines a “reproductive loss event” as the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction. These reproductive loss events apply to the person as well as the person’s current spouse, registered domestic partner, or other individual who would have been a parent of a child born as a result of the pregnancy.
Eligible employees may take up to five days of unpaid leave under the new law. The days off can be nonconsecutive. However, leave under this law must be completed within three months of the event.
SB 848 creates an entirely new, distinct leave entitlement. Depending on the circumstances, an employee may also be eligible for time off under other existing state or federal leave laws. If an employee takes time off under other existing leave laws, then the employee’s reproductive loss leave must be completed within three months of the end of the employee’s other leave. In other words, reproductive loss leave does not run concurrently with other leave entitlements.
Under the new law, reproductive loss leave is unpaid, unless the employer has an existing policy providing for paid leave. An employee may choose to use any accrued and available vacation, personal leave, sick leave, PTO, or compensatory time off that is otherwise available to the employee during the reproductive loss leave.
An eligible employee may utilize this leave for multiple reproductive loss events. However, the new law allows employers to limit the total amount of reproductive loss leave that an eligible employee may take to no more than a total of 20 days over a 12-month period.
Employers cannot interfere with, restrain, deny, or attempt to deny an employee’s exercise of their rights under the new law. Further, employers cannot retaliate against employees who exercise their right to take reproductive loss leave.
Unlike California’s existing bereavement law, the reproductive loss leave law lacks any explicit provision allowing an employer to request documentation related to requests for reproductive loss leave. Employers must maintain the confidentiality of an employee’s request for reproductive loss leave. An employer must keep the information confidential and must not disclose the information except to internal personnel or the employer’s counsel, as necessary, or as required by law.
Employers should review and update their policies and handbooks to incorporate the new reproductive loss leave. Employers should also make management, supervisors, and human resources aware of the new law allowing for reproductive loss leave, how they should address requests for the new leave and steps to maintain the confidentiality relating to such requests.
New Fair Chance Act Regulations
Question: Our company conducts criminal background checks of prospective employees. Do we need to change our procedures based on the recently revised regulations?
Answer: Yes. The Fair Chance Act prohibits employers from inquiring about an applicant’s criminal history until after making a conditional offer of employment. The recently revised Fair Chance Act regulations are effective October 1, 2023, and provide detailed guidance for employers who conduct criminal background checks.
Among other provisions, the revised Fair Chance Act regulations prohibit employers from:
- Including statements in advertisements or applications stating that those with a criminal history will not be considered.
- Considering any criminal history voluntarily provided by an applicant before the employer decides to make a conditional job offer.
The new regulations clarify that an “applicant” includes existing employees who undergo a background check for consideration of a different position or a change of ownership, management, policy or practice. The regulations also clarify that the definition of “employer” includes agents evaluating an applicant’s criminal history, staffing agencies, and entities obtaining workers from a pool or availability list.
Before an employer decides not to hire an applicant because of the applicant’s criminal history, the employer must conduct an individualized assessment of whether the individual’s criminal history has a direct and adverse relationship with the specific job duties. That individualized assessment must evaluate:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and/or completion of the sentence;
- and,
- The nature of the job held or sought.
The revised regulations list thirteen non-exclusive criteria that employers must consider for an individualized assessment. Some of the factors include, whether the harm was to property or people; the degree and permanence of the harm; the context of the offense; the applicant’s age; the amount of time since the conduct or the release from incarceration; the likelihood of the context and/or type of harm from the underlying conviction arising in the workplace. The employer must also consider whether a disability, trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress or other similar factors contributed to the offense or conduct.
After performing the individualized assessment, if an employer decides to rescind a conditional job offer because of the applicant’s criminal history, an employer must send a pre-adverse action letter to the individual and allow the individual an opportunity to provide the employer with any additional information. The applicant must provide the additional information within five business days of receipt of the letter.
In response to a pre-adverse action letter, the individual can voluntarily provide evidence challenging the accuracy of the conviction history and/or evidence of rehabilitation or mitigating circumstances. The regulations identify the types of evidence employers must consider, such as the likelihood that similar conduct will recur; the individual’s age at the time of the conduct; the fact the applicant is seeking employment; the length and consistency of the individual’s employment history before and after the offense or conduct; compliance with probation or parole; and the applicant’s self-improvement efforts.
Employers who utilize background check policies should review the revised regulations and update their background check policies and procedures accordingly. The California Civil Rights Department enforces the Fair Chance Act and may award aggrieved applicants monetary damages and other remedies.
How Far Does an Employer’s Duty of Care Extend?
Question: One of my employees is stating he contracted COVID-19 at work and his spouse and child then got COVID-19. Does my company have a duty of care to prevent the spread of COVID-19 to an employee’s household members?
Answer: No. The California Supreme Court recently ruled that employers do not owe a duty of care to prevent the spread of COVID-19 to an employees’ household members
In Kuciemba v. Victory Woodwork, Inc., an employee’s spouse alleged that she became infected with COVID-19 because her husband’s employer failed to follow San Francisco county’s required COVID-19 precautions. The husband transmitted COVID-19 to his wife, who was hospitalized and placed on a respirator. A lawsuit followed, which included various causes of action by the employee’s wife against Victory Woodwork, her husband’s employer.
The California Supreme Court was asked to address two questions:
(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act bar the spouse’s negligence claim against the employer; and
(2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?
Workers’ compensation benefits are generally the sole remedy for a family member’s claim for an injury derived from an employee’s workplace injury, and the family member cannot file a lawsuit to recover damages for a derivative injury. However, the Court stated that a family member’s claim for her own independent injury, not legally dependent on the employee’s injury, is not barred, even if both injuries were caused by the same negligent conduct of the employer. The Court concluded that the employee’s wife could proceed with her lawsuit against the employer, and her claims were not subject to the exclusivity provisions of workers’ compensation law.
Next, the Court evaluated whether an employer owes a duty of care to prevent the spread of COVID-19 to employees’ household members. Under California law, a defendant owes a general duty of care only when the defendant creates a risk of harm to the plaintiff. Although the Court concluded that transmission of COVID-19 to household members is a foreseeable consequence of an employer’s failure to take adequate precautions against the virus in the workplace, policy considerations require an exception to the general duty of care in this context. The Court was concerned about the “significant and unpredictable burden” on businesses, the court system, and the community from the potential deluge of such lawsuits, and the difficulties in proving such cases. The Court focused on policy considerations and wrote, “although it is foreseeable that an employer’s negligence in permitting workplace spread of COVID-19 will cause members of employees’ households to contract the disease, recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy.”
An employer may not have a duty of care to prevent the spread of COVID-19 to employees’ household members, but employers must still comply with legal requirements addressing COVID-19 in the workplace. While California’s COVID-19 State of Emergency ended on February 28, 2023, employers should still follow the remaining state and local COVID-19 related requirements, such as California’s COVID-19 Infection Prevention Non-Emergency Regulations, which are effective until February 3, 2025.
EEOC Issues Promising Practices for Preventing Harassment
Question: I follow all of California’s requirements for posting notices and providing harassment prevention training to employees, but are there additional steps I can take to further minimize the risk of harassment in the workplace?
Answer: Yes, the U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued its “promising practices” for the prevention and remediation of unlawful employment harassment for federal agencies. While the EEOC specifically directed its guidance toward federal agencies, private employers can also benefit from the EEOC’s helpful recommendations for mitigating and addressing harassment in the workplace.
The EEOC suggests that employers annually distribute to all employees the company’s harassment prevention policy which states that harassment is not tolerated, identifies the types of prohibited conduct, indicates ways to report harassment, and the consequences for engaging in harassment and retaliation. The EEOC also advises employers to clearly set forth, in their harassment prevention policies, who is responsible for taking corrective action. In addition to keeping this policy prominently posted, employers should also consider making the posting accessible in electronic form and readily available to all employees, including those with disabilities.
Employers should consider establishing multiple methods for employees to report potential harassment. Most employers already inform employees that they should report potential harassment to the employee’s immediate supervisor, human resources, or any other supervisor. The EEOC further recommends that employers consider establishing other avenues for reporting potential harassment such as hotlines, websites, portals, ombudspersons, or personnel in an anti-harassment program.
It is prudent to periodically evaluate the state and effectiveness of your harassment prevention program and efforts to prevent and address harassment in the workplace. For instance, employers should periodically evaluate potential harassment risk factors in the workplace to identify and take preemptive measures to mitigate those risk factors. The EEOC also suggests that employers may carefully consider establishing policies regarding employees’ eligibility for promotions, performance awards, or serving in a supervisory role when it is determined an employee violated the harassment prevention policy.
The EEOC suggests that employers can enhance the effectiveness of their harassment prevention training when that training is championed by senior management, regularly revised and updated as needed, tailored to include relevant examples for the specific workplace setting, and conducted virtually or in-person in small groups to foster employee engagement and participation. Employers should also seek feedback and input from participants to improve the effectiveness of the harassment prevention training.
The EEOC guidance also addressed online and virtual harassment. It recommended that employers dispel the assumption that nothing can ever be done about anonymous harassment occurring on an employer’s network. In addition, employers should make efforts to attempt to identify individuals who engage in such anonymous harassment. Employers may also want to review their security and accessibility protocols for their virtual platforms, internal websites, and online services to minimize potential outside breaches and the extent of anonymous communication allowed on those platforms.
Employers should also ensure that reports of harassment are well-documented. The EEOC suggests that employers consider formalizing a complaint tracking system to record and track harassment allegations, and which identifies when the employer was notified, details about the alleged harassment, the beginning and conclusion dates of any investigation, the identity of the investigator, the results of the investigation, any preventative or corrective action taken, and identifying the person responsible for taking corrective action.
The EEOC “promising practices” guidance is available here: https://www.eeoc.gov/federal-sector/reports/promising-practices-preventing-harassment-federal-sector.