With the #MeToo movement seemingly everywhere in the news, it’s important for all employers to review their sexual harassment training practices. Maine recently amended its sexual harassment training law to impose additional requirements on employers in the state.
The law now requires that employers use a checklist prepared by the Maine Department of Labor (MDOL) to develop their sexual harassment training programs. The MDOL has published the training checklist on its website, which you can access here.
The MDOL’s document isn’t so much a checklist as it is a one-page narrative summary of the training that you must provide and how sexual harassment is defined. This includes the existing training requirement that employers with 15 or more employees must conduct an education and training program for all new employees within 1 year of hiring.
It must include written notice of the illegality of sexual harassment, the definition of sexual harassment, a description of sexual harassment including examples, the internal complaint process available to the employee, the legal recourse and complaint process available through the Maine Human Rights Commission, directions on how to contact the commission, and the legal protection against retaliation.
The checklist also summarizes the existing requirement that you must conduct additional training for supervisory and managerial employees within 1 year of being hired or promoted into a supervisory or managerial position. This additional training must include the specific responsibilities of supervisory employees and methods that they must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.
Although the MDOL’s training checklist doesn’t impose any new substantive requirements, you should refer to it to make sure that you’re meeting the training obligations. It’s not unusual for employers to overlook some of the technical training requirements, including the requirement that supervisors receive additional training within one year of hire or promotion into a supervisory position.
Record Keeping and Enforcement
The law now requires you to keep records of the sexual harassment training you give employees and to maintain these training records for at least 3 years. At a minimum, you should be keeping a record of the names of each employee who participated in sexual harassment training, the dates and times that it was provided, and the written materials they received as part of the training.
It’s good practice to ensure that each participating employee sign a document that confirms participation in the training and understanding of the information that was included.
The law now specifically delegates authority to the MDOL to enforce its requirements. This includes the authority to enforce not only the training requirement but also the requirement that all employers, regardless of size, must annually provide written notice to all employees of the illegality of sexual harassment and the process for filing a complaint.
You now may be required to pay monetary penalties for failure to comply with the training and notification requirements. These include penalties for failure to post a notice in the workplace regarding the illegality of sexual harassment, as well as penalties for failing to provide training to employees and failing to provide them an annual written notice. The penalties allowed by statute range up to $5,000 per violation.
The new penalties provide a new monetary incentive for employers to ensure they are in compliance with the mandatory training and notice requirements. But an even greater incentive to comply is to protect employees from sexual harassment and reduce the risk of claims for failing to do so.
Harassment claims are costly to defend, and employers facing claims are in a far better legal position when they can demonstrate that adequate steps were taken to educate employees about sexual harassment.