hot topics in workplace harassment training
DESCRIPTION
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 MendelsonTRANSCRIPT
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Emerging trends and innovative solutions
Hot Topics in Workplace Compliance Training
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Reid Bowman, Esq.
General Counsel of NAVEX Global
Over 30 years of HR and labor & employment law experience, primarily working with multi-state employers.
Designs strategic ethics, wage & hour, discrimination prevention, and employment law compliance programs.
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Earl “Chip” Jones, Esq.
Littler Mendelson Shareholder; Dallas, Texas office
Private law practice and senior executive experience with a Fortune 200 Company
Represents organizations in labor and employment law matters and creating and managing ethics, compliance and corporate social responsibility (CSR) reporting, programs, and initiatives.
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Agenda
Four major trends leading training push:
• Anti-bribery and corruption issues
• Whistleblowing and anti-retaliation increase
• Wage & Hour complexity
• International Workplace Harassment questions
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Anti-bribery and Corruption Issues
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Legal and Other Drivers
In the US: the Foreign Corrupt Practices Act (FCPA)
o Prohibits bribery of public officials
o Limited Exceptions
• Facilitation (Grease) payments
• Bona fide payments
• Payments authorized by law
o Applies to:
• US-based companies
• Overseas companies doing business here
o Liable for the conduct of 3rd Parties
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Legal and Other Drivers
The UK Bribery Act goes further than the FCPA
o Prohibits all bribery – not just bribery of governmental
officials
o Creates liability for failing to stop bribery from happening
o No exceptions
o Applies to:
• Any UK-based entity / Any entity doing business in the UK
• The subsidiary of any business based in the UK or doing biz
there
• UK Citizens / Living in UK / Connection to UK
o Liable for the conduct of 3rd Parties
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Third Parties Can Create Risk for Your Organization
Agents
Intermediaries
Consultants
Suppliers
Joint venture
partners
Distributors
Local counsel
Franchisees
Contractors
Putting your organization’s reputation and bottom line at risk
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Impact of Compliance Training - US
Avoid up to 95% of fines and penalties under the Federal Sentencing
Guidelines with:
Comprehensive training
Periodic, recurring training
Reaching a broad audience
Quality matters!
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Impact on Compliance training – Worldwide/UK
Organizations can avoid all liability by
showing they had “adequate procedures” to
prevent bribery in place (UK Bribery Act sec.
7(1) and (2))
o Can be a complete defense
Guidance from the UK Ministry of Justice
expressly refers to training (and online
training) as a necessary part of “adequate
procedures”
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Training Best Practices
• Design training to provide the appropriate education to employees based on job
responsibilities, geographic location, and line of business
• Include not just employees wheeling and dealing around the globe, but all
employees engaged in global business (those who could either engage in or
observe corruption)
• Communicate organization’s anti-corruption commitment, and provide clear
guidance on where to go to ask questions or report issues
Ensure third parties are trained!
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Whistleblowing and Anti-retaliation Increase
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Legislative Drivers
Recent Whistleblower Legislation Expansion:
o Dodd-Frank Act
o Sarbanes-Oxley Act
o Fraud Enforcement & Recovery Act
o Revised False Claims Act
o American Recovery & Reinvestment Act 2009
o Consumer Product Safety Act
o 20+ Federal Whistleblower
Protection Statutes
o Since 2006, 16 states have strengthened laws
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Dodd-Frank: Whistleblower Protection Provisions
Section 922: 10-30% reward to whistleblowers (not only employees) who alert SEC to violation of the 1934 Securities & Exchange Act (if > $1M)
Dodd Frank prohibits adverse action taken “because of” whistleblowing activity o Determination will be made on case-by-case basis
Employee can file claim directly in federal court o Rules also provide SEC with power to enforce
Most dramatic impact: Employees are NOT required to first report internally
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Beefed Up Enforcement
SEC Office of the Whistleblower:
$400M budget dedicated to
whistleblower issues
SEC received 344 whistleblowing tips
in first 7 weeks whistleblowing
regulations became effective
If annualized, SEC would get over 2550 tips
each year! See: http://www.sec.gov/about/offices/owb/whistlebl
ower-annual-report-2011.pdf
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Impact on Compliance Training
Dodd Frank regulations, and most other whistleblower protection laws, do
not require whistleblowers to use internal complaint processes
Only true way to get ahead of these laws and enforcement developments is
to train your employees on the benefits of reporting any workplace issues
internally
Must also ensure that managers and supervisors are well trained on the
duty to avoid retaliation if they learn of an internal complaint
TREND: consider requiring “speak up” training for employees and managers
on off years – when not taking Ethics and Code of Conduct training
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Wage & Hour Complexity
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Legal 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, among other things
o 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., higher minimum wage; more generous overtime provisions.)
On top of this, each state also has numerous payroll practice laws, governing things like meal and rest breaks, details about timing of paychecks and final pay, etc.
Net: Compliance is complex for employers, particularly multi-state ones
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Class/Collective Actions: The Flood Continues
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Of all the employment class action
lawsuits filed in federal or state court
in 2011, 4,139 (or approx. 91%) were
wage and hour related complaints
Wage/Hour complaints 91%
All other: 9%
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After Dukes v. Wal-Mart
0 500 1000 1500 2000 2500 3000 3500 4000 4500
2009
2010
2011
10/2/2012
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Wage & Hour Class Actions State and Federal
As of October 2012, 3,458; by year end, projected to EXCEED 2011 figure!
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The Good News on Training
The Good Faith Defense
Build legal defenses by showing
your organization made a “good
faith” effort to comply with wage
and hour laws
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Impact on Compliance Training
Train both managers and employees regarding FLSA and state law wage
and hour requirements and Company timekeeping policies and
procedures
Training should involve interactive learning model with examples
targeted toward common violations (i.e., missed meal periods,
improper supervisory instructions, and “volunteering” time off the
clock)
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Who should be trained? Employee training should focus on basics like:
• Review of key policies
• Define hours worked
• No off-the-clock work
• Meals and rest periods
• Rules relating to overtime
• Reporting errors and misconduct
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Who should be trained? Manager training should focus on employee topics, plus:
• Compliance responsibilities
• Handling employee complaints
• Manager misconduct
• Prohibition against retaliation
• Good record keeping practices
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International Workplace Harassment Questions
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Legal and Other Drivers
Between 40-50% of women in European Union countries experience
unwanted sexual advances, physical contact or other forms of sexual
harassment at work
Across Asia, studies in Japan, Malaysia, the Philippines and South Korea
show that 30-40% of women suffer workplace sexual harassment
For comparison purposes, 8% of U.S. workers report having experienced harassment.
Source: The Facts: Violence Against Women & Millennium Development Goals (compiled by UNIFEM, 2010)
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Sources of International Anti-Harassment Laws
International treaties addressing fundamental rights:
In the 27 states of the European Union:
o Charter of Fundamental Rights of the European Union
o Numerous Directives against discrimination
o Member countries must implement directives with legislation
o Growing body of case law, including European Court of Justice
ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation
o 169 countries adhere to this treaty, which requires the countries implement its terms as a floor in legislation (Example: Russia)
Creation by case law: Indian Supreme Court decision in Vishaka v. State of Rajasthan
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Different 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
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International Workplace Harassment Trends 29
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Challenges 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
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Global Harassment Training Best Practices
1. Don’t roll out a U.S. centric course
2. Anchor the training with a great policy
3. Be conscious of Works Councils
4. Set expectations and engage management stakeholders early
5. Focus on deploying the training, not on creating the content
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Global 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 elements
8. Train On retaliation (Victimization & Reprisal)
9. Distribute the right policy & track completion
10. Consistency matters – avoid opt outs
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Thank You Questions?
Reid Bowman
OR
Chip Jones