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March Preparedness: Inadequate Employee Training May Cause Even the Best Employers to Suffer an Upset

Employers implement employee training programs for a variety of reasons, such as furthering professional development and improving poor performance, ensuring compliance with information security protocols and competence using company systems and reducing legal exposure by ensuring that employees receive formal instruction on equal employment, discrimination and harassment policies. And just as a rigorous practice schedule can ensure that a team brings its “A” game to the NCAA tournament, companies that invest the time and resources to train their employees properly stand a greater chance of avoiding many of the problems that often result from a poorly trained workforce, such as excessive turnover, decreased morale and costly discrimination and harassment lawsuits.

Employee training is especially important in the harassment context, as the so-called Faragher-Ellerth affirmative defense (named for two landmark 1998 Supreme Court decisions) permits an employer under federal and many state discrimination statutes to defeat claims for unlawful harassment if the employer can show that (1) it exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the plaintiff-employee unreasonably failed to take advantage of the preventive or corrective opportunities the employer provided. The Supreme Court’s explicit approval of robust anti-harassment policies has served as a strong incentive, motivating many employers to get serious about harassment and discrimination training. Those that fail to recognize the importance of a proactive approach to these issues may suffer an avoidable defeat in the form of the considerable defense costs and negative publicity that often attend harassment lawsuits.

In addition, employers risk significant legal exposure when they fail to train human resource professionals in the critical areas of addressing leave requests under the Family and Medical Leave Act, responding to requests for accommodations under the Americans with Disabilities Act and navigating the challenging circumstances in which the requirements of these statutes and their state law counterparts overlap and intersect. The EEOC’s recommendation that “[a]n employer should determine an employee’s rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take” will be difficult to carry out on game day if the HR team responsible for achieving this goal has not had the proper training. Moreover, under Second Circuit precedent, mishandling these issues can result in the equivalent of a season-ending injury to a company’s star player, as an unlawful denial of FMLA leave may result in liability not just for the company, but for individual human resource directors who violate the statute’s requirements.

But how do employers ensure the effectiveness of training and avoid ending up like East Tennessee State, which, despite throwing “sick dunks” during practice last week, went down to defeat against Florida on Thursday? First, employee training programs should be targeted to areas that create the greatest risk for employers. While training on the general rules and procedures for handling discrimination complaints, requests for leave, and wage and hour compliance issues remains essential, effective training programs should also incorporate specific examples based on real-world challenges that have proven problematic for employers in the past and provide HR professionals an opportunity to work through those scenarios.

Similarly, training programs should be repeated annually, if possible, and must be updated to take into account the constantly changing federal, state and local laws and regulations governing the employment relationship. As anyone who followed Employment Matters’ 2016 Year in Review Series knows, being fully up to speed on last year’s laws and regulations will not protect companies from serious legal liability as compliance deadlines for recent enactments arrive. Accordingly, employers should invest the time and resources necessary to implement comprehensive and up-to-date HR compliance training to avoid showing up unprepared on game day.

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George Patterson