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Dec 27, 2017

New Maine Requirements on Harassment: Get Your Train Game On


Category: Employment

In 2017, the Maine Legislature amended the law requiring harassment training, adding in record-keeping requirements and penalties, updating the poster needed, and tying a compliance checklist to the program that employers must develop. There are now penalties for failure to put up the poster as well as a failure to provide the required training. Fortunately, the preventative measures now required help prevent what would be much more expensive and burdensome claims and they essentially require what would be considered best practices in the human resource arena (notices, training,documentation).

So what do you need?

First, you need a poster.
It’s free! And you can download it and just tape it up. Use the version revised in December 2017. You can get it here: http://www.maine.gov/labor/posters/2017/sexual_harassment_poster.pdf

Second, you need a policy.
Every business in Maine, with one or more employees, should have an antidiscrimination policy. A policy on sexual harassment is required by law in Maine. A policy addressing all types of discrimination, not just sexual harassment, is recommended, however, as more protective of a business from claims. A business is more at risk, and cannot either claim it did not know about harassment or was doing all it could to prevent discrimination, if it does not have a comprehensive policy. Moreover, from a management perspective, it simply is better to encourage employees to come to management with issues so that they can get resolved rather than let them grow into problems that lead to morale issues or grow into discrimination claims.

We will address the contents of a policy in an upcoming mailing. But the Maine law requires “notification” which can be done by attaching the policy to a paycheck or in some other way guaranteed to get it to each employee.

Third, you need training.
Training must be done in workplaces with 15 or more employees within one year of an employee’s start of employment. If less than 15, to reduce risk, you should still train. There is separate training for supervisors which should include their role in taking immediate and appropriate corrective action in addressing complaints. This requirement is particularly important for reducing risk of claims. So many lawsuits could have been prevented if the supervisor had just taken the complaint seriously and had at least investigated and documented what they did.

One of the new requirements in the recent legislation is the need to keep a record of the training done and who got it. That’s great documentation to have if you get a human rights complaint but not if you didn’t do it. Here is what it says:

Employers shall use the checklist to develop a sexual harassment training program and shall keep a record of the training, including a record of employees who have received the required training. Training records must be maintained for at least 3 years and must be made available for department inspection upon request.

The training records have to be kept for at least three years. Like I-9 records, you may want to keep those in a separate binder or file so they will be easy to access if you get audited. Unlike old I-9 records, you may want to retain these training records if they show a long history of training and documenting.

Fourth, you need to look at the compliance checklist the Dept. of Labor is creating.
So far, what the DOL has up is a summary of what you should think about. It isn’t really a “compliance checklist” so hopefully more will be coming our way. In the meantime, use this document from DOL as a guide and keep it somewhere that you can show that you used it: http://www.maine.gov/labor/labor_laws/publications/2017/SexualHarrassmentEducationandTraining.pdf

Finally, you need a wallet with cash if compliance may be an issue.
The penalties aren’t huge compared with some out there but they aren’t peanuts either. It remains to be seen how often the Maine DOL will be out enforcing these requirements. The best way to avoid paying is to try to comply and document your attempts doing that. Call DOL if you need guidance. They start to have an idea of who the problem companies are and who are the ones to which they give a break. Effort goes a long way in this area. The penalties range from $25/day up to $1,000 to up to $100/day up to $5,000.

Curious for all the details? Go here for the language of the law: http://legislature.maine.gov/statutes/26/title26sec807.html Looking for a legal update on employment issues? The Central Maine Human Resources Association is holding its annual legal update breakfast meeting which will include nearly 2 hours of education plus breakfast at a cost of just $25. The date is January 9 and the location is the Carriage House. Arrive by 7:45 a.m. Register here: http://cmhra.org/events/#!event/2018/1/9/annual-law-update-chapter-mtg