From: Staffing

Legal Duty to Train Employees

As the frequency of employment-related lawsuits and costs of defense continue to rise, investing in effective training of supervisors and employees can generate substantial savings for employers. Adequate and effective training reduces the number of claims, and assists in lowering the risk of an adverse outcome for the employer as courts and juries respond more favorably to employers who invest in training. Moreover, training can enhance job satisfaction and increase productivity.

Legal Duty to Train

Sexual Harassment and Discrimination Prevention

Training has long been recognized by human resource (HR) professionals as an important activity. In 1998, the U.S. Supreme Court decided several landmark decisions, which caused training to take on a new, more important meaning. Although the Supreme Court’s decisions simplified the employee’s capacity to sue their employer for sexual harassment, the decisions also provided employers with insight as to methods in harassment avoidance and rectifying harassment before the illegal measures became an actionable offense.

The Supreme Court’s decisions established the legal principle of tangible employment loss. Examples of tangible employment loss are firing, failure to promote, inappropriate reassignment with different responsibilities, and change of benefits.

Where the victim of sexual harassment has not suffered a tangible employment loss, an employer may successfully defend against a harassment lawsuit by proving that the employer took both of the following steps:

• Exercised reasonable care to prevent and promptly correct sexual harassment.
• Offered preventive or corrective opportunities and the employee unreasonably failed to take advantage of such opportunities.

The development of an employer’s defense against a harassment claim requires planning and preparation. However, such planning and preparation should occur before any harassment claims are filed. Employers must take all necessary precautions and steps to fashion a work environment free from harassment.

For example, an employer may demonstrate the exercise of reasonable care to prevent and promptly correct sexual harassment by implementing the following steps, at a minimum:

• Developing both a policy that explains the types of behavior prohibited and a legally effective complaint procedure to address concerns.
• Timely distribution of the company policy to all supervisors and employees.
• Educating and training employees about their rights and responsibilities under the policy and complaint procedures.
• Educating and training supervisors about how they should respond to inappropriate behavior from others and their own responsibilities for complying with and enforcing the policy.
• Training those who are charged with receiving and investigating complaints on how to properly conduct investigations, document results, and take corrective action.

Moreover, the Supreme Court continued to emphasize the importance of training and essentially ruled in a 1999 decision that punitive damages cannot be awarded against an employer who has taken all the preventive steps in discrimination and harassment. Thus, harassment prevention training has become almost mandatory for employers to prevent the prohibited acts and avoid liability.

Oftentimes, in sexual harassment litigation, the plaintiff will try to demonstrate that the employer failed to provide the plaintiff with proper training on the employer’s harassment policy and/or that the training was ineffective. Subsequently, HR directors and administrators may be subject to extensive questioning, in depositions and at trial, on the training issue. Additionally, courts have continued to expand an employer’s legal duty to prevent and avoid harassment targeting any protected class, such as that based on race, national origin, or disability status.

Safety and Health

The employer’s duty to train is an important element of several Occupational Safety and Health Administration (OSHA) safety and health regulations.

For example, OSHA requires that employers implement the following safety procedures:

• Every employer must either provide portable fire extinguishers throughout the workplace and train all employees on their use or implement an Emergency Action Plan and a Fire Prevention Plan that covers every employee who is not expected to fight fires.
• Any employees expected to use portable fire extinguishers to fight incipient fires must be trained pursuant to 29 C.F.R. 1910.157(g)(l) – (4).
• Where the employer has provided portable fire extinguishers for employee use in the workplace, the employer must also provide an educational program to familiarize employees with the general principles of fire extinguisher use and the hazards involved with incipient stage fire fighting. The education is required upon initial employment and at least annually thereafter.
• Employers must provide employees who have been designated to use fire-fighting equipment as part of an emergency action plan with training in the use of the appropriate equipment. Such training is required upon initial assignment to the designated group of employees and at least annually thereafter.
• Employers in the construction industry must provide safety training for each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to the work environment to control or eliminate any hazards or other exposure to illness or injury.

In addition to the training and information requirements, OSHA might require that housekeeping and/or sanitation employees be trained under the Bloodborne Pathogens (BBP) Standard and the Hazard Communication (HazComm) Standard. To require BBP training, OSHA presumes that those employees have “reasonably anticipated” occupational exposure to blood or other potentially infectious materials. To require HazComm training, OSHA assumes that the housekeeping/sanitation employees use hazardous consumer products (such as cleaners) in a manner that results in a duration and frequency of exposure which is greater than the range of exposures that could reasonably be experienced by consumers when the product is used for its intended purpose.

The Occupational Safety and Health Review Commission has also provided guidance on other suggested training programs, such as guidelines for preventing workplace violence. Failure to comply with OSHA’s regulations covering training may create liability for the employer.

Tort Claims

Plaintiffs may also file lawsuits claiming that during employment they were personally injured as a result of the employer’s failure to properly train co-workers or supervisors on proper techniques to accomplish job duties and responsibilities. For example, inadequacy of police training may serve as a basis for a municipality being liable for a constitutional violation when the failure to adequately train a police officer results in injury to a citizen.