HOT TOPICS INSTALLMENT #2

The Reignited Issue of Sexual Harassment in the Workplace

 By: The Saqui Law Group

In 2017, the topic of sexual harassment in the workplace not only dominated the news networks and everyday conversation, but it has also created a domino effect of sexual harassment and sexual abuse complaints against high profile men in politics, the media, and entertainment. With increasing frequency, men and especially women, are sharing their experiences of alleged sexual harassment and assault. In October of 2017, a flood of complaints against producer Harvey Weinstein quickly resulted in his ouster from the Weinstein Company, a company he founded and ran until he was removed by its Board of Directors.

The Weinstein scandal has reignited and elevated discussions of sexual harassment in the workplace to an extent not seen in decades. It is shining a spotlight on the prevalence of harassment in the workplace, particularly by those in positions of power who use that power to take advantage of others. Although individual abusers have been the chief target of complaints, those companies that are seen as having allowed the abuse to occur, or having acted to protect the alleged harassers at the expense of alleged victims, also find themselves in increasingly hot water. In these times, it is more important than ever that employers go above and beyond to fulfill their legal obligations by having sexual harassment policies in place, conducting sexual harassment training with employees, and taking necessary steps to prevent sexual harassment. Sexual harassment comes in many forms and varying degrees, and as the current trend demonstrates, a long-simmering environment of sexual harassment can erupt suddenly. 

This year, it will be more important than ever for employers to consider their sexual harassment policies and reflect whether they can effectively prevent a sexual harassment claim from occurring. While employers cannot eliminate the possibility of employees occasionally acting inappropriately, there are reasonable steps an employer can take to prevent unlawful harassment, including having proper policies describing and prohibiting sexual harassment, notifying employees of their right to make complaints, ensuring employees know that complaints will be promptly investigated and remedial action taken, and that complaining employees will not be subject to retaliation. It is extremely likely this trend will trickle down to employers all over the country, and the courts will see an uptick in sexual harassment claims. Employers need to be prepared and ensure they are minimizing the risk of a harassment claim and in the event a claim comes forward, the employer needs to be prepared to handle the complaint seriously and thoroughly.

Enforce a Zero-Tolerance Harassment Policy for All Levels

A zero-tolerance harassment policy will discourage harassing conduct in the first place and will help protect employers against claims that the employer has fostered or tolerated an unprofessional workplace culture in which sexual behavior is common. Having a strict zero-tolerance harassment policy means an employer prohibits all forms of harassment and that any confirmed harassment will result in appropriate remedial action, making no exceptions for the degree of the alleged harassment or the alleged harasser’s position within the company. All employees, both management and rank-and-file, should be provided with a copy of the zero-tolerance harassment policy. Additionally, employers should strongly consider providing training on the policy to all employees, not just supervisors. Further, complaints of harassment should be treated equally, no matter who brings forth the claim and who the complaint is made against.  Discounting certain complaints because of who is making them, or who they are being brought against, is likely to lead to mistakes being made and legal action against the employer. Having a zero tolerance policy in place and enforced is the best tool in the employer’s belt for dealing with problems associated with sexual and other forms of harassment. 

Provide a Multichannel Complaint Procedure and Assure Employees that They Will Not Be Subject to Retaliation for Making or Participating in a Harassment Complaint

A key part of preventing sexual harassment in the workplace is ensuring that employees know they can and should come forward to identify harassing behavior and that they understand that they will not be retaliated against for doing so. In shocking numbers, the United States Equal Employment Opportunity Commission (“EEOC”), a federal agency that administers and enforces civil rights laws against workplace discrimination, estimates that three out of four people who encounter sexual harassment do not report the incident either out of fear they will be retaliated against or that no one will believe them.[1] Therefore, it is critical that employers have an anti-retaliation policy in place so that employees feel comfortable reporting harassment in the workplace. Employees need to be aware that making a harassment complaint or participating in an investigation will not result in any form of retaliation.

One key component of maintaining an effective sexual harassment policy is making sure that you have an open door policy about reporting sexual harassment. In the past, many employers who encouraged the reporting of harassment made the mistake of requiring employees to first report complaints to their direct supervisors before going to Human Resources or another member of management. The problem, of course, is that it is oftentimes the employee’s direct supervisor who an alleged victim contends is guilty of engaging in harassing behavior. In such a situation, it makes sense that the employee choose to remain silent rather than tip off the alleged harassing supervisor. Instead, employers should have a multichannel complaint procedure that provides employees with at least two separate avenues for making harassment complaints. Employees should be able to bring a complaint to various members of management or HR and not just one specific individual.

An employer’s complaint policy should also clearly indicate the steps that will be taken in response to an employee bringing forth a harassment complaint. This will create a system for employers to follow in response to a complaint being made and weed out any confusion the employee may have as to how the complaint will be investigated. The investigation should be prompt, followed by remedial action if harassment is found to have occurred.

U.S. Legislator’s Response to the Weinstein Scandal

A bipartisan group of lawmakers in both the United States Senate and House of Representatives have introduced legislation that would ban pre-dispute arbitration agreements of sexual misconduct claims. The bipartisan bills would allow those who allege sexual harassment or gender discrimination in the workplace to take their claims to court rather than forced arbitration.

Farmworker’s Response to the Weinstein Scandal

In solidarity with the women and men of Hollywood who came forward with their experiences of sexual harassment, 700,000 female farmworkers have written a letter of solidarity stating they stand with actors against sexual assault. The letter is written on behalf of female farmworkers by Alianza Nacional de Campesinas, an organization comprised of current farmworker women, along with women who hail from farmworker families. Although Hollywood may have reignited the discussion of sexual harassment in the workplace, it is now affecting other industries, including agriculture.

New Sexual Harassment Laws in California Effective 1/1/2018

Governor Jerry Brown signed two new bills effective January 1, 2018, that employers should be aware of that are related to sexual harassment, SB 396 and SB 295.

Under SB 396, employers with 50 or more employees will be required to modify mandatory sexual harassment training to include discussion of gender identity, gender expression, and sexual orientation. Additionally, employers will be required to post an amended poster on discrimination developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace. Copies of the amended poster in multiple languages are available online at the Department of Fair Employment and Housing’s website.

Under SB 295, Farm Labor Contractors (“FLC”) will be required to follow additional compliance requirements in sexual harassment prevention and reporting training as a part of the California FLC licensing process. FLCs will be required by law to provide sexual harassment training for agricultural employees in the language understood by those agricultural employees. Additionally, FLCs will have to provide the Labor Commissioner with the number of agricultural employees trained and a complete list of materials used to provide the sexual harassment training. If the FLC fails to adhere to the new law, the Labor Commissioner is authorized to issue citations and assess civil penalties of $100 for each violation relating to failure to comply with the training requirement.

Under SB 179, California is the first state to legally recognize non-binary as a gender. This allows individuals to update their gender on their birth certificate, driver’s licenses, and identity cards without undergoing clinical treatment or getting a court order. In turn, employers may see employee requests of using particular pronouns and the employers should not willfully violate the employee’s wish to be called a different pronoun. Failure to recognize an employee’s preferred pronoun could result in a lawsuit.

[1] Feldblum, Chai and Lipnic, Victoria. U.S. Equal Employment Opportunity Commission Select Task Force on the Study of Harassment in the Workplace, June 2016.

Welcome to WAPA

Governor Signs Ag Overtime Bill

Ignoring the pleas of real farmworkers and the agricultural industry, Governor Edmund G. Brown Jr. today signed AB 1066, the ag overtime legislation. This means that California will have the most stringent trigger of any state in the country for overtime for farmworkers, with 45 states having no overtime protection at all. The Governor signed this bill, supposedly to bring “equality to all workers”, yet taxi cab drivers, commercial fishermen, car salesmen, student nurses, computer programmers, and carnival workers all work without any overtime provisions whatsoever. The Governor signed this ag overtime bill in the same year that minimum wage legislation was also passed that will take California to the highest minimum wage as well as legislation forcing California to adopt additional greenhouse gas regulations for businesses in California. California is the only state in the country subject to such regulations. Today’s signing occurred despite numerous requests by the agricultural industry to meet with the Governor to discuss our concerns. The message is clear. California simply doesn’t care. These provisions will be phased in over the next few years ending with the overtime provisions to be triggered at 8 hours per day and 40 hours per week.

In the Beginning As folks transitioned out of cotton and into tree nuts, the industry recognized the need to have active and effective representation at the local, state and national levels. Having enjoyed such effective representation over the years from the California Cotton Ginners and Growers Associations, these folks yearned for the same representation in the tree nut processing industry. Issues such as air quality, food safety, labor, taxes, employee safety, and environmental concerns are at the forefront, and there is a significant need for an aggressive and dynamic Association to lead the industry into the next decade and beyond. In recognition of this, the Western Agricultural Processors Association was created in 2009. The Western Agricultural Processors Association (WAPA) shares staff and office space with the California Cotton Ginners and Growers Associations taking advantage of a unique and opportunistic situation. WAPA is a voluntary dues organization with four shared staff and one dedicated staff person. Regulatory, legislative and legal issues fall under the purview of this new organization for the tree nut processing industry, which includes almonds, pecans, pistachios and walnuts. From air quality permits to conditional use permits, from regulatory hearings on greenhouse gases to federal legislation on food safety, and from OSHA violations to assisting members on hazardous materials business plans, no issue is too small or too large for WAPA. WAPA has assembled one of the best and most capable staffs in the industry, and the results are already starting to show Membership The Western Agricultural Processors Association represents facilities involved in the processing of almonds, pecans, pistachios and walnuts.Membership in the Association is classified as Regular memberships are limited to almond hullers or processors, pecan and pistachio processors, and walnut dehydrators and processors. Associate memberships are limited to any individual or business entity which is not engaged in agricultural processing, but which provides products or services directly related to the agricultural processing industry. WAPA Associate members include, but are not limited to, commodity brokers, accounting firms, and insurance brokers. Organization The Western Agricultural Processors Association is governed by a Board of Directors, elected by its membership.The Board consists of up to 15 members from throughout the state, and throughout the industry.The Board meets on a quarterly basis and conducts an Annual Meeting in the spring of each year.WAPA, in conjunction with the California Cotton Ginners and Growers Associations, conducts a special training school for its members focused on safety.In combination with the school, the Association holds a Labor Management Seminar for all of the managers. Consulting Services In researching and considering the concept of forming a new organization, the Boards of Directors for the California Cotton Ginners and Growers Associations instructed staff to perform some of the work on a consulting basis first. The point was to determine the workload from consulting and to determine if there was sufficient interest. In November of 2007, the Association began conducting services under consulting contracts for such services as air quality permits and safety plans.The effort has been so successful that demand has progressed outside the tree nut industry into other agricultural processing facilities, including vegetable dehydration facilities, tomato processing facilities, and wheat mills, as well as cotton gins in Arizona.It was determined by the new Board of Directors of WAPA, that WAPA would maintain the consulting services to provide offsetting income to help with the expenses of getting the new organization up and running.Today, WAPA provides for a long list of satisfied clients in the agricultural processing industry, by providing critical services such as air quality, safety, food safety, and environmental issues (Hazardous Materials Business Plan, Spill Prevention Control and Countermeasure Plans, etc.).