By now employers know that regular supervisory training on sexual harassment prevention is a must.  (If you need a refresher on the law, download this pamphlet.) Trainers like to trot out the familiar stories about plaintiffs’ attorneys telling employees to document harassment and make complaints.  Or we are reminded about the EEOC’s outreach activities to educate potential plaintiffs.

I had an eye opening experience last week when I accompanied my 12-year-old daughter to a class at our church for middle school students.  The class was to cover sexual abuse.   The topic was covered in a very direct yet sensitive way.  I don’t remember this being covered when I was in middle school back in the olden days but I am glad it is now.

The real surprise for me was that after the sexual abuse video and post video discussion was another video.  This one covered sexual harassment in middle school.  The narrator told us that among students sexual harassment was most prevalent in middle school.  She gave no statistics or citation to authority but I did find this study which likely confirms the assertion.

I was waiting to hear a tortured version of the employment law definition of sexual harassment.  Surprisingly, the video described the basics in easy to understand and generally accurate terms.  “No one has the right to touch you without your consent.”  “No one has the right to say offensive things to you.”  Some of the vignettes illustrated conduct that a court might not decide was based on sex.  But the examples shown were certainly offensive and inappropriate so I’m fine with students being advised to object to it—even if technically isn’t sexual harassment in the legal sense.

Students were advised to tell the harasser to stop or complain to a person in authority.  The big surprise was when the video showed the victim carefully jotting in a small notebook and the narrator instructed the viewers to keep notes or a journal of the harassment.  This is a technique suggested by the lawyers who represent harassment victims and it may make a plaintiff into a better witness before the EEOC or a judge, jury or arbitrator.

Don’t get me wrong, I am not critical of the advice to middle school students—I hope my daughter was watching and listening carefully.  But here is the news flash: based on the education our students are receiving at very early ages, employers need to remember that many future employees coming right out of school will have already attended a class on harassment—even before hearing about the company’s policy.

There are still employers of significant size that have no written policy, (or a poorly worded policy), on harassment or who have neglected supervisory training for a long time.

Bottom line: don’t be the first company to be a loser on the newest reality show:  Are Your Supervisors Smarter than a Middle School Student? 

Resolution #1:  I Will Self Audit Our Company’s Wage-Hour Practices

According to its strategic plan, the Wage and Hour Division of the US Department of Labor will continue to aggressively pursue employers who:

• Fail to pay overtime where required
• Improperly consider employees to be exempt from overtime
• Misclassify employees as independent contractors

Being snagged on wage-hour violations hurts, not just because it ends up costing money but also because a vigilant company can discover these types of problems fairly easily. Trying to root out harassment or embezzlement can be difficult because those activities are frequently done surreptitiously.  On the other hand, HR and company management can easily find out if there are wage hour problems by looking at payroll records, employee duties and hours worked.  There is little excuse for being surprised by the findings of a DOL audit.

The idea of a self audit is to do what the DOL would do if it showed up for an audit—but do it yourself now while you have time to correct mistakes or reconsider the risky things you have been doing on purpose. Self audits can be done by your employment attorneys. They can also be done in house –we’ve taught lots of clients how.

For a refresher on the Fair Labor Standards Act, read this booklet and this booklet.  For up to date wage-hour information and developments follow the Fisher & Phillips Wage and Hour Law Blog.

Resolution #2:  I Will Review Our Company’s Social Media Policy

Of course you must first be sure that have a social media policy.   No company can afford to be without one. It does not need to be extensive but it must be carefully written because last year the NLRB issued a number of rulings that create a confusing minefield.  Here is a report issued by the NLRB last year, which summarized the cases decided by the NLRB though the first half of 2012.  Note that at the end of the report there is a social media policy that the General Counsel of the NLRB found to be completely legal!  Resist the urge to simply adopt it verbatim—you should still tailor it to your operation and run it past your labor lawyer.

Resolution #3:  I Will Take Steps to Union Proof Our Company

Unless you have been living under a rock you know that the NLRB, packed with union leaning appointees, last year tried to:

•  Force every employer to post a notice informing its employees of the their right to join a union.
• Change the rules so that employers can be ambushed with a union election on 14 days notice.
• Require all employers to publicly thank unions for all they have done for society (OK maybe the NLRB didn’t actually try to do this but you know they really wanted to).

Meanwhile the DOL tried to amend its regulations to require  your labor attorneys to file reports telling the government how much you paid to them for helping keep you union free.

These initiatives did not come to fruition but expect them to be reintroduced this year.

To begin the union proofing process, start by learning the basics about the law of union organizing by reading this booklet on the union organizing aspects of the National Labor Relations Act. Also read this booklet on unfair labor practice liability under the National Labor Relations Act.

Then perform a union vulnerability audit on your own or with the help of your labor attorney. Start by using this tool.   Many of our clients have made changes based on the audit results and those changes have helped insulate companies from union organizing.

Resolution #4:  I Will Schedule Management Training

When times are tough training budgets are one of the first things to go.  Times are still tough but the aggressive government enforcement agenda makes training too important to continue to ignore.  What to cover?  At a minimum you must conduct a refresher on harassment and discrimination prevention.  In the early years such training lasted several hours.  It still warrants time but you can really cover the basics in less than two hours.  Use that extra time to cover union awareness.  That means you educate supervisors and managers about unions and how to spot the early warning signs of union organizing.  That training must also cover “Management 101”.  In that segment supervisors and managers will learn good communication skills and how to properly use progressive discipline.  It should be everyone’s goal after the training to make the workplace so comfortable that your employees would never even consider bringing in a union.  Bonus:  those same management techniques learned in the training will reduce employment claims and make it easier to successfully defend employment claims.  Do the training in house, use your labor attorney, or use some combination of the two.

Resolution #5:  I Will Eat Less Meat and Dairy and More Fruits and Vegetables

Oops, sorry, this one belongs on a different resolution list.  But while we’re on the topic this resolution has nothing to do with animal rights—just living longer and healthier.  Don’t believe me–check out this documentary.

The Real Resolution #5:  I Will Review the Effects of Obamacare on the Company’s Benefit Plans

You will likely need help with this one.  Here is a basic timeline for compliance with the Affordable Care Act.  We’ve walked many clients through the maze.  Using a qualified law firm is best but a consultant can also work well but you must be careful when the consultant you are relying on also sells or brokers insurance products.  The good vendors will remind you, (usually in the fine print) to check with your own benefits attorney.

I hope this list of resolutions is helpful and I would appreciate it if you could post any of your own suggestions in the comments section.