Navigating Supervisor Training: Legal Requirements and Best Practices for Avoiding Discrimination in the Workplace

Posted by: kevensteinberg
Category: Blog

The United States Equal Employment Opportunity Commission (EEOC) states that discrimination involves various types, including age, disability, equal pay/compensation, genetic information, harassment, national origin, pregnancy, race/color, religion, retaliation, sex, sexual harassment, and sexual orientation and gender identity. EEOC statistics show that there were 61,331 total charges in fiscal year 2021, and 34,332 of those charges or 56.0 percent related to retaliation, 22,843 or 37.2 percent related to disability, 20,908 or 34.1 percent related to race, and 18,762 or 30.6 percent related to sex.

Discrimination can be a very common claim against employers throughout California, and companies need to take proactive steps to reduce the chances of discrimination complaints. The EEOC encourages businesses to state that discrimination of any kind will not be tolerated, outline a company’s policies relating to discrimination, and know that managers understand their responsibilities.

Training

One of the best ways a company can invest in their workplaces is to properly train all their managers even though federal equal employment opportunity laws do not require employers to conduct anti-harassment or anti-discrimination training. Under Senate Bill No. 1343 (SB 1343), requires employers who employ five or more employees to provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees, and once every two years thereafter.

Training can be a solid way for a company to reinforce its culture, establish expectations, and educate all employees about acceptable conduct, work rules, and consequences for non-compliance with rules. Training is further beneficial in that it could establish an affirmative defense when a company is defending against lawsuits. 

Employers should take reasonable care to prevent harassment or discrimination from occurring within their workplaces. Employers must have policies in place that are designed to prevent these issues, and courts could look at whether employers conducted anti-harassment training and the frequency and effectiveness of the training.

Training and education should start at the top of an organization, meaning training of senior level executives can be as critical to a company’s compliance with employment laws as anything else. Even senior roles need to be educated about specific requirements of employment laws and their individual roles and responsibilities in ensuring the company’s compliance with the laws. 

Managers, supervisors, and leaders should be educated on employment laws and best practices as they relate to interacting with and managing other employees. Training should focus on diversity and inclusion, Family and Medical Leave Act of 1993 (FMLA)/Americans with Disabilities Act (ADA) issues, and performance management. 

Training of nonsupervisory employees will be different from training provided for supervisory employees, but both groups share equal importance. All employees should be trained on all equal employment opportunity laws, examples of acceptable and unacceptable conduct, and an employer’s anti-harassment and anti-discrimination policies and complaint reporting procedures.

When it comes to how training will be handled, in-person training is generally the mos effective although virtual training can work for employers who have a workforce that is spread out over various locations. Companies should avoid recorded training sessions, which are typically not as effective.

The parties a company uses to conduct training may be entirely outside third parties, and there can often be attractive options for many businesses. An employment litigator who knows how courts work may offer a stronger perspective than others. 

All training sessions should be interactive and give people multiple examples so that employees leave training with a feeling that they are now equipped to identify and handle different situations that could arise during their employment. Every new employee should be trained immediately upon hire regarding harassment and discrimination, but employers should still provide annual refresher trainings as well.

Auditing Pay

Only 885 or 1.4 percent of charges with the EEOC involved the Equal Pay Act, but this issue should still be of concern to all employers. The United States Department of Labor, Wage and Hour Division (DOL/WHD) and the National Labor Relations Board (NLRB) entered into a Memorandum of Understanding (MOU) to maximize and improve the enforcement of the federal laws administered by DOL/WHD and the NLRB.

The agencies will share information regarding denial of minimum wages or overtime pay and misclassification of workers. When a business is involved in a dispute with one of these agencies, chances are that they will have to deal with the other agency as well.

Senate Bill No. 1162 (SB 1162) requires employers with 15 or more employees to include pay scales for positions in any job posting. The California Equal Pay Act requires equal pay for employees who perform substantially similar work, eliminates the requirement that the employees being compared work at the same establishment, makes it more difficult for employers to justify inequities in pay through a bona fide factor other than sex defense, ensures that any legitimate factors relied upon by the employer for pay inequities are applied reasonably and account for the entire pay difference, explicitly states that retaliation against employees who seek to enforce the law is illegal, and extends the number of years that employers must maintain wage and other employment-related records from two years to three years.

Pay equity and transparency are increasingly important legislative priorities in many states throughout the country, as many states have now passed laws that prohibit employers from inquiring about an applicant’s previous salary. When employers have concerns about their current pay practices, a pay equity audit could be in order. 

A pay equity audit will involve an employer gathering their entire team, including the human resources department and finance department. After identifying the goals, a company will want to get clear on its pay practices and examine how the company makes decisions about pay, who makes those decisions, how much discretion hiring managers have regarding whom they hire and the compensation packages they offer, and what the hiring budget is that influences salary decisions.

A comprehensive audit will require such information as every employee’s job title, job level, department, additional hire data, demographic information, base wages, overtime wages, bonuses, and any other forms of compensation. Problems that can arise during this portion of the audit may include data not being up to date, important data missing from a database, data being entered inconsistently or incorrectly, data being housed in different databases that do not communicate with each other, or sources of data being unclear.

A company must then analyze its data and determine the appropriate action. Some companies may make salary adjustments.

Update Employee Policies and Job Descriptions

All employers should make it a point to review and update their employee handbooks every year so they can know they are complying with all applicable laws. This is especially true for multi-state employers who must stay up to date on how state or local laws may have changed. 

Updating employee handbooks can help ensure that employer policies are current and employers are also staying aware of recent changes that could impact their workplace. Companies should also reevaluate whether contractors and exempt employees are still correctly classified under all applicable wage and hour laws. 

It will be critical to know whether all exempt employees still meet the salary and duties requirements of their positions under the Fair Labor Standards Act (FLSA) and any applicable state laws. Accurate job descriptions will be incredibly important. 

Contact Our Los Angeles Small Business Attorney

If you are dealing with issues concerning discrimination in the workplace in California, you are going to want to be sure you have legal representation. Steinberg Law handles all kinds of business law concerns and helps clients achieve the most favorable outcomes in their cases.
Our firm was a recipient of President George W. Bush Volunteer Service Award. You can call (818) 855-1103 or contact our Los Angeles small business attorney online to schedule a free consultation.

Author: kevensteinberg