The Supreme Court and federal agencies now look askance at employers that do not train their workforce members to avoid sexual harassment and discrimination, race, national origin, and religious bias, age and disability discrimination, and all other areas protected by federal and state laws.
1. What is the affirmative defense and how does it relate to training?
A big incentive for employers to train came from the U.S. Supreme Court and the Equal Employment Opportunity Commission (EEOC) in 1998. The Supreme Court handed down two landmark rulings, Ellerth v. Burlington Industries and Faragher v. City of Boca Raton, that provided employers with an affirmative defense for escaping liability for supervisory sexual harassment.
The affirmative defense allows employers to defend against supervisory harassment, which does not result in a tangible employment action, by showing that: a) the company exercised reasonable care to prevent and correct promptly any harassing behavior; and b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. This affirmative defense was extended to all forms of harassment by the EEOC.
Other courts have ruled that failure to conduct harassment training of supervisors and employees can be used to demonstrate that the organization did not take affirmative steps to prevent harassment from taking place in the workplace.
2. Do any states mandate compliance training?
Most states have anti-discrimination laws that allow for much bigger jury awards then the caps placed on verdicts set by the federal Civil Rights Act. Some states, including California, Connecticut, and Maine, have gone as far as mandating compliance training for private employers. For example, California requires companies with more than 50 workers to provide their supervisors with two hours of sexual harassment training. A number of other states require public employers to provide such training.
3. Do employees who take online training classes after hours need to be compensated?
Under Department of Labor regulations (CFR 785.27), attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:
(a) Attendance is outside of the employee's regular working hours;
(b) Attendance is in fact voluntary;
(c) The course, lecture, or meeting is not directly related to the employee's job; and
(d) The employee does not perform any productive work during such attendance.
It is relatively easy to show that online training meets criteria a, b, and d. Therefore, whether online training is required to be compensated will usually depend on whether or not the course is directly related to the employee's job. Under the regulations, training is directly related to the employee's job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill. An exception to this rule occurs when an employer establishes, for the benefit of his employees, a program of instruction which corresponds to courses offered by independent bona fide institutions of learning. For example, if an employer creates a series of online courses that are comparable to those offered by an online university, then the employer would not have to compensate the employee for the time taking the course provided that the other three criteria are also met.
When it comes to online harassment training, it would be hard to argue that an employee took a course on a voluntary basis. Therefore, unless the employee is exempt, you need to compensate the employee for the time spent taking the course.
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