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LEGAL ISSUES


Building Workplace Culture Continued from page 17


policies are updated to reflect changes in the law, many contractors neglect to update their anti-harassment policies. Policies governing employee misconduct should reflect modern workplaces, and address harassment in a realistic and thoughtful manner. For instance, in addition to prohib- iting certain in-person conduct, you should also prohibit that conduct when it occurs via text message, instant messenger, or in other online forums. California has its own


ever-changing requirements for anti- harassment policies. To comply with state law, your anti-harassment policy must define sexual harassment, provide clear examples of sexually harassing conduct, establish a “zero tolerance” policy, and clearly state consequences for violations. Additionally, the policy must extend protection to harassment based on gender expression, gender identity, and sexual orientation (among other protected characteristics). Te policy must also unambiguously state that managers can be held personally liable for harassment. Beyond what state law requires,


contractors should also consider having employees acknowledge receipt of the policy, as well as evaluate how their policies are distributed. Indeed, a lengthy policy buried inside a handbook that employees receive alongside other orientation and onboarding documents is unlikely to be effective. Instead, consider periodically issuing a one-page policy outlining your policy. Also, communicate how seriously the company treats this subject by having the policy issued by a high-ranking company executive.


Provide Meaningful Training Human Resources representa-


tives know that even a well-drafted, thoroughly disseminated policy is not worth the paper it is printed on if managers do not know how to enforce the policy effectively and consistently. Tus, training is key. Trough training,


18 May/June 2018


managers and employees alike learn how to recognize conduct that is prohibited, as well as how to respond when they witness or are a victim of conduct that violates company policy. Meaningful training also helps


break the culture that led to the misconduct that launched the #MeToo movement. Good training can help managers understand how to have difficult and uncomfortable conversa- tions about complicated topics like harassment. Contractors also have the unique opportunity to teach their employees to recognize their own unconscious biases and, most impor- tantly, give them skills on how to navigate those biases. Indeed, training is not just a


best practice, it’s the law. California requires that contractors with over 50 employees provide managers with two hours of sexual harassment training within six months of hire and at least once every two years thereafter. Tat requirement may expand in the near future, with Senate Bill 1300 proposing a mandate of biannual training for all employees.


Conduct Prompt and Thorough Investigations


Even with the best policies and


training, reports of harassment are still likely to occur. When you receive a report of harassment or other misconduct, you must take it seriously and promptly commence an investigation. While there is no one-size-fits-all approach, the following components should always


be part of an investigation:  Determine whether the investi- gation will be conducted internally or by an outside third party such as legal counsel.


 Evaluate whether you need to consult with the union, offer union employees the opportunity to have a representative present, and provide the Weingarten rights statement.


 Consider leaves of absences for the employees involved in the inves-


tigation, especially the alleged harasser.


 Objectively interview the complaining party, the alleged harasser, and any third-party witnesses, documenting the infor- mation provided and obtaining written statements.


 Preserve and review relevant evidence, including text messages, e-mails, documents, and photos.


 Analyze the facts, weigh the evidence, and assess the credibility of witnesses to determine the truth.


 Arrive at a conclusion and make recommendations to resolve the complaint, including potential disciplinary action for the accused harasser.


 Communicate the outcome of the investigation to the parties involved.


If your investigation reveals that


the allegations against the accused are substantiated, you must take action commensurate with the gravity of the offense. Conducting a good inves- tigation will minimize your legal liability, improve company morale, and demonstrate your company is committed to enforcing its policies and promoting an inclusive and respectful workplace. A few months into 2018, the


#MeToo movement continues to dominate headlines, court dockets, and the state legislature. However, contractors can take proactive steps, like those mentioned here, to build their workplace culture on a solid foundation of respect, open communi- cation, and equality. 


Collin Cook is a partner in the San Francisco and Irvine offices of Fisher Phillips, a national management side labor and employment law firm and can be reached via email at ccook@fisherhillips. com and at (415) 490-9032 / (949) 798-2166. Bailey Bifoss is an associate in the San Francisco office of Fisher Phillips and can be reached at bbifoss@fisher- phillips.com and at (415) 490-9027.


California Constructor


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