Hot Topics in Workplace Harassment Training

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This session reviews emerging workplace compliance training subjects that are critical to organizations today, including the legal and practical drivers behind the training.

Specific examples include:
Anti-bribery and corruption
Whistleblowing, reporting and retaliation
Wage & hour
International workplace harassment

Presenters also discuss numerous best practices and trends that are seen in these areas. You can expect to leave this session with a clear understanding of the importance of training in these areas, as well as specific ways to approach these sensitive topics.

Presented by:
Reid Bowman, General Counsel, NAVEX Global and Chip Jones, Shareholder, Littler Mendelson

Published in: Business, Career
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Hot Topics in Workplace Harassment Training

  1. 1. CLIENT CONFERENCEEmerging trends and innovative solutionsHot Topics in Workplace ComplianceTrainingCLIENT CONFERENCE
  2. 2. CLIENT CONFERENCEReid Bowman, Esq.General Counsel of NAVEX GlobalOver 30 years of HR and labor &employment law experience,primarily working with multi-stateemployers.Designs strategic ethics, wage & hour,discrimination prevention, andemployment law complianceprograms.2
  3. 3. CLIENT CONFERENCEEarl “Chip” Jones, Esq.Littler Mendelson Shareholder;Dallas, Texas officePrivate law practice and seniorexecutive experience with a Fortune200 CompanyRepresents organizations in labor andemployment law matters and creatingand managing ethics, compliance andcorporate social responsibility (CSR)reporting, programs, and initiatives.
  4. 4. CLIENT CONFERENCEAgendaFour major trends leading training push:• Anti-bribery and corruption issues• Whistleblowing and anti-retaliation increase• Wage & Hour complexity• International Workplace Harassment questions
  5. 5. CLIENT CONFERENCEAnti-bribery and Corruption Issues
  6. 6. CLIENT CONFERENCELegal and Other Drivers In the US: the Foreign Corrupt Practices Act (FCPA)o Prohibits bribery of public officialso Limited Exceptions• Facilitation (Grease) payments• Bona fide payments• Payments authorized by lawo Applies to:• US-based companies• Overseas companies doing business hereo Liable for the conduct of 3rd Parties
  7. 7. CLIENT CONFERENCELegal and Other Drivers The UK Bribery Act goes further than the FCPAo Prohibits all bribery – not just bribery of governmentalofficialso Creates liability for failing to stop bribery from happeningo No exceptionso Applies to:• Any UK-based entity / Any entity doing business in the UK• The subsidiary of any business based in the UK or doing bizthere• UK Citizens / Living in UK / Connection to UKo Liable for the conduct of 3rd Parties
  8. 8. CLIENT CONFERENCEThird Parties Can Create Risk for Your Organization Agents Intermediaries Consultants Suppliers Joint venturepartners Distributors Local counsel Franchisees ContractorsPutting your organization’s reputation and bottom line at risk
  9. 9. CLIENT CONFERENCEImpact of Compliance Training - USAvoid up to 95% of fines and penalties under the Federal SentencingGuidelines with: Comprehensive training Periodic, recurring training Reaching a broad audience Quality matters!
  10. 10. CLIENT CONFERENCEImpact on Compliance training – Worldwide/UK Organizations can avoid all liability byshowing they had “adequate procedures” toprevent bribery in place (UK Bribery Act sec.7(1) and (2))o Can be a complete defense Guidance from the UK Ministry of Justiceexpressly refers to training (and onlinetraining) as a necessary part of “adequateprocedures”
  11. 11. CLIENT CONFERENCETraining Best Practices• Design training to provide the appropriate education to employees based on jobresponsibilities, geographic location, and line of business• Include not just employees wheeling and dealing around the globe, but allemployees engaged in global business (those who could either engage in orobserve corruption)• Communicate organization’s anti-corruption commitment, and provide clearguidance on where to go to ask questions or report issues Ensure third parties are trained!
  12. 12. CLIENT CONFERENCEWhistleblowing and Anti-retaliationIncrease
  13. 13. CLIENT CONFERENCELegislative Drivers Recent Whistleblower Legislation Expansion:o Dodd-Frank Acto Sarbanes-Oxley Acto Fraud Enforcement & Recovery Acto Revised False Claims Acto American Recovery & Reinvestment Act 2009o Consumer Product Safety Acto 20+ Federal WhistleblowerProtection Statuteso Since 2006, 16 states have strengthened laws
  14. 14. CLIENT CONFERENCEDodd-Frank: Whistleblower Protection Provisions Section 922: 10-30% reward to whistleblowers (not only employees) whoalert SEC to violation of the 1934 Securities & Exchange Act (if > $1M) Dodd Frank prohibits adverse action taken “because of” whistleblowingactivityo Determination will be made on case-by-case basis Employee can file claim directly in federal courto Rules also provide SEC with power to enforce Most dramatic impact: Employees are NOT required to first reportinternally
  15. 15. CLIENT CONFERENCEBeefed Up Enforcement SEC Office of the Whistleblower:$400M budget dedicated towhistleblower issues SEC received 344 whistleblowing tipsin first 7 weeks whistleblowingregulations became effective If annualized, SEC would get over 2550 tipseach year! See:http://www.sec.gov/about/offices/owb/whistleblower-annual-report-2011.pdf
  16. 16. CLIENT CONFERENCEImpact on Compliance Training Dodd Frank regulations, and most other whistleblower protection laws, donot require whistleblowers to use internal complaint processes Only true way to get ahead of these laws and enforcement developments isto train your employees on the benefits of reporting any workplace issuesinternally Must also ensure that managers and supervisors are well trained on theduty to avoid retaliation if they learn of an internal complaint TREND: consider requiring “speak up” training for employees and managerson off years – when not taking Ethics and Code of Conduct training
  17. 17. CLIENT CONFERENCEWage & Hour Complexity
  18. 18. CLIENT CONFERENCELegal and Other Drivers Main federal law controlling Wage & Hour issues is the Fair Labor Standards Act(FLSA)o Provides for a minimum wage, and overtime pay premium for covered workers, amongother thingso Enforced by the DOL Importantly, FLSA just sets a bare minimum level of protection. As a result,states, and even localities, are free to provide greater protections (e.g., higherminimum wage; more generous overtime provisions.) On top of this, each state also has numerous payroll practice laws, governingthings like meal and rest breaks, details about timing of paychecks and final pay,etc.Net: Compliance is complex for employers, particularly multi-state ones
  19. 19. CLIENT CONFERENCEClass/Collective Actions: The Flood Continues19Of all the employment class actionlawsuits filed in federal or state courtin 2011, 4,139 (or approx. 91%) werewage and hour related complaintsWage/Hour complaints91%All other: 9%
  20. 20. CLIENT CONFERENCEAfter Dukes v. Wal-Mart0 500 1000 1500 2000 2500 3000 3500 4000 450020092010201110/2/201220Wage & Hour Class ActionsState and FederalAs of October 2012,3,458; by year end,projected to EXCEED2011 figure!
  21. 21. CLIENT CONFERENCEThe Good News on TrainingThe Good Faith DefenseBuild legal defenses by showingyour organization made a “goodfaith” effort to comply with wageand hour laws
  22. 22. CLIENT CONFERENCEImpact on Compliance Training Train both managers and employees regarding FLSA and state law wageand hour requirements and Company timekeeping policies andprocedures Training should involve interactive learning model with examplestargeted toward common violations (i.e., missed meal periods,improper supervisory instructions, and “volunteering” time off theclock)
  23. 23. CLIENT CONFERENCEWho should be trained?Employee training should focus onbasics like:• Review of key policies• Define hours worked• No off-the-clock work• Meals and rest periods• Rules relating to overtime• Reporting errors and misconduct23
  24. 24. CLIENT CONFERENCEWho shouldbe trained?Manager training should focus onemployee topics, plus:• Compliance responsibilities• Handling employeecomplaints• Manager misconduct• Prohibition against retaliation• Good record keeping practices24
  25. 25. CLIENT CONFERENCEInternational Workplace HarassmentQuestions
  26. 26. CLIENT CONFERENCELegal and Other Drivers Between 40-50% of women in European Union countries experienceunwanted sexual advances, physical contact or other forms of sexualharassment at work Across Asia, studies in Japan, Malaysia, the Philippines and South Koreashow that 30-40% of women suffer workplace sexual harassmentFor comparison purposes, 8% of U.S. workers report having experienced harassment.Source: The Facts: Violence Against Women & Millennium Development Goals (compiled by UNIFEM, 2010)
  27. 27. CLIENT CONFERENCESources of International Anti-Harassment LawsInternational treaties addressing fundamental rights: In the 27 states of the European Union:o Charter of Fundamental Rights of the European Uniono Numerous Directives against discriminationo Member countries must implement directives with legislationo Growing body of case law, including European Court of Justice ILO Convention No. 111 concerning Discrimination in Respect of Employmentand Occupationo 169 countries adhere to this treaty, which requires the countries implement its terms as a floorin legislation (Example: Russia) Creation by case law: Indian Supreme Court decision in Vishaka v. State ofRajasthan
  28. 28. CLIENT CONFERENCEDifferent Protected Categories Political beliefs World view Criminal convictions Alcohol or drug abuse Migrant worker status Culture Social origin Property ownership Birth Caste Language spoken Parental status
  29. 29. CLIENT CONFERENCEInternational Workplace Harassment Trends29
  30. 30. CLIENT CONFERENCEChallenges to Training International Workers Different laws/legal requirements Different languages Perhaps different company policies Multiple cultures U.S.-centric training doesn’t resonate overseas Despite differences and challenges, some universal fundamental values
  31. 31. CLIENT CONFERENCEGlobal Harassment Training Best Practices1. Don’t roll out a U.S. centric course2. Anchor the training with a great policy3. Be conscious of Works Councils4. Set expectations and engage management stakeholders early5. Focus on deploying the training, not on creating the content
  32. 32. CLIENT CONFERENCEGlobal Harassment Training Best Practices (Con’t)6. Cover issues that are important outside the U.S.7. Ensure that training is engaging—both in content and visual elements8. Train On retaliation (Victimization & Reprisal)9. Distribute the right policy & track completion10. Consistency matters – avoid opt outs
  33. 33. CLIENT CONFERENCEThank YouQuestions?Reid Bowmanrbowman@navexglobal.comORChip Jonesejones@littler.com

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