Nondiscrimination | 

10 FAQs on Harassment, Marijuana, and More

During our recent webcast, HR Compliance Trends to Watch in 2019, it was clear that harassment, marijuana, and pay history issues were top of mind for our attendees. We received dozens of questions on these topics. Here we address the most common.

Sexual Harassment:

Background: Sexual harassment has been one of the most talked about employment issues over the last couple of years. As a result, a number of states have passed laws that require employers to maintain a written anti-harassment policy and/or provide anti-harassment training to employees.

Q: Is it mandatory to obtain a signed acknowledgment for each policy in our handbook or is it OK if the employee signs one acknowledgment for the entire handbook?

A: While it would be burdensome, and generally not required to have each handbook policy acknowledged individually, there are some policies that may require or warrant explicit acknowledgement. For example, some states, such as California, have specific rules for the dissemination and acknowledgment of sexual harassment policies. Either way, it's a best practice to obtain a separate acknowledgment confirming employees have received, read and are prepared to abide by your anti-harassment policy. If you are not required or choose not to have a separate acknowledgment, consider including specific language in your handbook acknowledgment that highlights your anti-harassment policy.

Q: Who can provide the sexual harassment training? As a small business owner, I cannot afford to hire someone.

A: If you have employees in a state or city that requires harassment training, your law may require that trainers meet certain standards. For example, California requires trainers to be:

  • Attorneys admitted to the bar for two or more years whose practice includes state and federal nondiscrimination laws; or
  • Human resource professionals or harassment prevention consultants with a minimum of two years of practical experience in anti-harassment training or in responding to, investigating, or advising on sexual harassment complaints; or
  • Instructors with 20 instruction hours or two or more years of experience in a law school or college teaching about state and federal nondiscrimination laws.

In the absence of specific standards, choose qualified trainers who, through a combination of training and experience, can train employees effectively on the law and your company's policies. Many of the jurisdictions that require sexual harassment training also provide model training materials employers may use. Check your state website for more information. Your state may also be able to help connect you with additional resources.

Q: How do we handle sexual harassment training for independent contractors in our office?

A: First, most laws don't require employers to train independent contractors, but there are exceptions. For instance, New York City requires that independent contractors who have performed work for more than 90 days and more than 80 hours in a calendar year receive training annually. If the independent contractor can verify that they have received the required harassment training elsewhere that year, you wouldn't be required to train them.

Absent a requirement, many employers don't provide employee training to independent contractors, often because employer-provided training may be indicative of an employer-employee relationship. Under state and federal laws, workers must meet very specific criteria in order to be considered an independent contractor. Providing training to an individual could demonstrate that the employer exerts some level of control over the worker.

While these tests look at many factors and no single one is determinative, many employers err on the side of caution when it comes to training. Instead, they may make completing harassment training from a third party a qualification for independent contractors to provide their services to the business.

Q: In California, can training be a handout or does it have to be more?

A: As a best practice, and typically where required, training should be more than a handout provided to employees. For example, California requires that employers provide sexual harassment prevention training in a classroom setting, through interactive e-learning, or through a live webinar. Online training must provide instructions on how to contact a trainer who can answer questions within two business days. The training must contain certain elements and include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions. New York state also requires interactive harassment training that can be presented live and in person or web-based. Employers should provide an interactive training program beyond a handout to ensure their employees are engaged and able to pose questions to clarify understanding of the material presented.

Medical & Recreational Marijuana:

Background: Thirty-three states have enacted medical marijuana laws, and 11 states and the District of Columbia also permit recreational marijuana use. None of these laws require employers to allow employees to use, possess, or be impaired by marijuana during work hours or in the workplace. Therefore, employers still can prohibit marijuana in the workplace, during work hours, and on company premises. However, some states have employment protections for employees who use medical marijuana outside of work.

Q: Is there any medical data on how long the effects of marijuana last if an employee uses marijuana while off duty and then comes to work?

A: The effects of marijuana can vary greatly depending on the type, amount, and person involved. And even in states that allow medical and recreational marijuana, employers can still prohibit impairment in the workplace. As with other types of substances that can cause impairment (such as alcohol and prescription drugs), employers can assess on a case-by-case basis whether the employee is impaired at work. However, these observations may be subjective and while employers should document specific observations of behaviors, such as, "the employee appeared distracted and unresponsive to questions," it's a good idea to consult legal counsel before taking action based on a perceived impairment.

Q: Is there a difference between using marijuana on break and using it before coming into work?

A: As mentioned before, employers can always prohibit medical and recreational marijuana use on company time and premises, including company vehicles. Therefore, an employer can discipline employees who use it at work, such as during a rest break. Depending on the state, though, employees may be protected for off-duty use as long as they don't show up to work impaired.

Bans on Pay History Inquiries:

Background: Studies have shown women, African Americans and other people of color tend to be paid less than their counterparts for the same or substantially similar work. To help combat the wage gap, some jurisdictions have enacted laws that restrict employers from asking applicants for their pay history. The idea behind these laws is that a candidate's pay history may reflect discriminatory pay practices of a previous employer, which then could result in lower wages in the new job.

Q: Do these bans apply to my state/city?

A: To date, the following jurisdictions have enacted restrictions on salary history inquires:

  • Alabama
  • Albany County, NY
  • California
  • Cincinnati, OH (effective March 12, 2020)
  • Colorado (effective January 1, 2021)
  • Columbia, SC
  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Kansas City, Missouri
  • Massachusetts
  • Maine
  • New Jersey (effective January 1, 2020)
  • New York State (effective January 6, 2020)
  • New York City
  • Oregon
  • Philadelphia*
  • San Francisco, CA
  • Suffolk County, NY
  • Toledo, OH (effective June 25, 2020)
  • Vermont
  • Washington
  • Westchester, NY (sunsets once New York State law takes effect)

* Philadelphia's pay history ban was partially blocked by a federal judge. Employers can ask about salary history, but cannot rely on the information when making employment decisions. Covered employers should continue to monitor the status of the law.

Q: Can I ask for pay history on a voluntary basis?

A: If you are subject to one of these state or local bans, simply asking the question may violate the law even if you tell the individual that they aren't required to answer. As noted above, one exception would be Philadelphia, where pay history inquiries are allowed as long as the employer doesn't use the information.

Q: If an applicant tells us their old salary without us asking, are we allowed to make pay decisions based on that information?

A: If you're subject to a salary history ban and a candidate voluntarily and without prompting discloses this information, how you handle the information depends on the state. Some states will allow you to consider it when making an offer, but some don't or are silent on the issue. Some states may allow you to only confirm the accuracy of the disclosure. Check your state law and consult legal counsel to confirm compliance with the law that applies to your business. If you are allowed to use such information or to confirm the accuracy of previous compensation, be sure to document that the applicant voluntarily, and without prompting, disclosed their prior salary.

Q: Do these bans apply to salary only or do they also apply to questions about hourly wages and bonuses?

A: Salary history inquiry bans typically apply to all forms of compensation.

Conclusion:

Before implementing policies and practices related to harassment, marijuana, and pay history, review applicable federal, state, and local laws carefully to ensure compliance.

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