Michigan’s Earned Sick Time Act will change policies for many employers

UPDATED – 11/30/2018 – Michigan Earned Sick Time Act

In early September 2018, Michigan’s Legislature adopted the Earned Sick Time Act, which applies to all private employers employing one or more individuals, and takes effect on April 1, 2019. It was originally advanced as a ‘citizen initiated/petitioned ballot measure’ to be placed before the voting public. The legislature opted to avoid the ballot initiative by adopting the law as written.

On November 28, 2018, Michigan state senators voted for a bill introduced by Senator Shirkey to dramatically scale back the Requirements for Earned Sick Time Act, specifically that small businesses (fewer than 50 workers) will be exempt. This act will also not apply to employees exempt from overtime or who work for a private company but are covered by a labor contract.

What will the Earned Sick Time Act do?

  • Require employers, with over 50 employees, to provide every employee 1 hour of paid sick time for every 40 hours worked, or 36 hours per year. This will allow employees to use up to a certain amount of paid sick time in a year for a specified number of purposes, such as illness, medical treatment, absences caused by domestic violence or sexual assault, or meetings related to a child’s school or care.
  • Allow employees to take leave with little advanced notice.
  • Permit employers to request documentation only if the absence is longer than 3 days, and then requires that the employer to cover the employee’s out-of-pocket costs incurred in providing such documentation.
  • Require employers to provide written notice to employees of their rights under the Act, including protections against employer retaliation.
  • Permit aggrieved employees to file claims with the Department of Licensing and Regulatory Affairs or take legal action.

As written, the Earned Sick Time Act could prove challenging for many employers to implement, especially those who have established time-off policies. Employers can comply with the Earned Sick Time Act by providing paid leave (such as vacation, personal days, PTO, etc.), as long as that leave, (1) Accrues at a rate equal to or greater than what the Earned Sick Time Act requires; (2) Is at least the same amount as the Earned Sick Time Act; (3) May be used for the same purposes and under the same conditions. Employees must begin accruing leave on the law’s effective date or when employment begins (whichever is later) at a rate of at least 1 hour for every 40 hours worked.

What does this mean for employers?

It is still somewhat unclear what the Earned Sick Time Act will look like come April 1, 2019. Rest assured that BCN Services will continue to monitor and report on further developments. Meanwhile, employers should take stock of their existing time-off policies, especially if they have separate sick time, vacation time, and personal time policies.

Thom Moore, Partnership Manager

Michigan voted to legalize the use of recreational marijuana. Now what?

On Nov. 6, 2018, Michigan residents voted to legalize marijuana for adult recreational use, the first state in the Midwest to do so. What does this mean for employers? Generally, they have the right to maintain and enforce a zero-tolerance policy against drug and alcohol use. But that may change over time as courts weigh in on varying laws in state and federal jurisdictions.

 

The new law allows individuals age 21 and older to purchase, possess and use marijuana and marijuana-infused edibles. Adults can grow up to 12 marijuana plants (keeping a maximum of 10 ounces) for their own consumption.

Although the referendum calls for the law to take effect 10 days after election results are certified, marijuana is not expected to be available commercially for quite some time. The state puts regulations and licensing in place and local municipalities decide whether to allow such businesses in their communities.

Michigan police agencies must also consider how law enforcement procedures will change with the new law. A number of Michigan universities have also released policy statements regarding marijuana use on campus.

Weed in the workplace: What Michigan employers can do

In a recent blog posting, experts at the Varnum Law Firm state that ” The MRTMA does not restrict a private employer’s right to maintain and enforce a zero-tolerance drug and alcohol policy.”

In other words, employees can still be fired (or not hired) for a positive drug test. Employers may continue to perform pre-employment and random drug tests on employees and maintain zero-tolerance policies. This new referendum will not protect job applicants or employees who test positive for marijuana use.

But keep in mind that prospective employees may still file a discrimination claim if their employment offer is rescinded. In a Connecticut case, for example, a prospective employee using medical marijuana for PTSD treatment filed a discrimination case using the premise of a state law that prohibits employers from discriminating on that basis. The plaintiff won a summary judgment in that case.

Individual Michigan employers must consider whether to maintain zero-tolerance drug policies or create more tolerant guidelines. Now more than ever, it’s important to make sure pre-employment drug-testing policies and employee handbook reflect the times. A policy needs to be in place making it crystal clear that employees are prohibited from being impaired by marijuana while on the job, legal or not.

We recommend that employers focus on prohibiting employees from being impaired due to alcohol/marijuana use while working instead of focusing on marijuana use in and of itself. By focusing on impairment instead of use, employers will minimize the likelihood of conflicting with state “lawful use” laws.

Marijuana remains illegal under federal law

For employers with federal contracts or with employees licensed through federal agencies, there is no gray area. Marijuana is an illegal substance under federal law and, thus, a zero-tolerance drug policy will apply. For employers facing significant safety and health risks, drug testing is imperative.

Employers not facing significant safety and health risks from impaired employees may decide drug testing risks outweigh potential benefits. In states where recreational marijuana is already legal, a growing number of companies are asking the lab to test for all drugs except marijuana. For example, in Nevada, where marijuana was legalized in 2017, the number of companies asking that marijuana be included in workplace drug testing dropped from 95 percent in 2016 to 91 percent in 2017.

More information here: Listen to an interview on WDET with updates about the new law.

Do you need help considering the marijuana issue in your workplace policies? The specialists at BCN Services are happy to help you craft or revise a policy. We can help with everything from developing policies and handbooks, to handling safety training, payroll and HR reporting. Contact BCN Services at 1-800-891-9911 or contact us electronically.

Photo Credit: Photo by Roberto Valdivia on Unsplash

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Thom Moore, Partnership Manager

Be aware of voter leave laws, talk with staff before Tuesday

With voter turnout expected to be higher than ever at the polls for 2018 mid-term elections on November 6, some employers may wonder about their obligation to employees.

While there is no federal law mandating time off for voting, nearly half of U.S. states provide a voter leave law (either paid or unpaid).

Employers in states with paid voter leave laws (Illinois and Minnesota, for example) should familiarize themselves with the leave law before employees request time off to vote. Some of these laws have specific details related to requesting of time and how much time must be paid.

Other states (such as Michigan and Indiana) don’t require employers to give time off, however, it is a best practice to encourage employees to make time to vote. Employers may want to consider adding a policy addressing time off for voting, depending upon their specific situation.

If you are an employer that operates in more than one state, experts suggest that you either maintain one policy that complies with all state laws or implement a general policy that denotes local laws will prevail.

Regardless of the laws in your state, managers can take a proactive role by talking to their staff before Tuesday. To maximize office coverage, find out if some employees can vote on the way in to work, some on the way home from work and, depending on logistics, maybe some during an extended lunch period. Advanced planning can be key in making your employees’ work day smoother both in and out of the office.

Not sure of the laws in your state(s)? Would you like assistance in creating a voter leave announcement or a policy for your employee handbook? Contact your HR experts at BCN Services to discuss your individual situation.

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Sue Kester, HR Manager

FMLA, parental leave and medical leave can all be options for life events

Starting and growing your family is an exciting time, and the last thing an employee should worry about is how to take time away from work for life events such as this. Employers should develop a policy before these questions arise.

It is common for employees to assume they will get a certain amount of time, either paid or unpaid, away from work. What a business is required to offer is typically dependent on its size. As an employer, you should be prepared to share this information when an employee announces they are adding another member to the family. The options include: FMLA, parental leave, medical leave or a combination.

FMLA is the federal Family Medical Leave Act, which applies to employers of 50 or more. FMLA requires employers to provide up to 12 weeks of time off for the birth or placement of a child for adoption or foster care. FMLA protects the employee’s job and benefits but does not require an employer to pay the employee for the time they are away. If unpaid, employees may be able to use vacation/PTO time or collect from their short-term disability benefit (if applicable). FMLA applies to both parents for the purpose of bonding with the child as well as giving a mother time to recuperate from labor and delivery. FMLA is clearly outlined for employers and can be found online here: https://www.dol.gov/general/topic/benefits-leave/fmla.

The term “maternity leave” was commonly used to describe the time a mother needed off after the birth of a child. The term is outdated, as an employer cannot discriminate against the other parent for the purposes of taking time off. The Pregnancy Discrimination Act (PDA) also requires pregnancy to be handled as if it were like any other medical leave.

The compromise and appropriate nomenclature is “parental leave,” which is a set period of time an employer allows an employee to be off work for the birth or placement of a child. It is simply describing a period of time, not the medical needs for a woman to be off following labor and delivery. A parental leave may include wage replacement, such as paying part or all of the employee’s wages while off work, or it may be unpaid. Just like FMLA, a parental leave is not required to be paid, but some employers may choose to do so.

The U.S. Equal Employment Opportunity Commission (EEOC) recently ruled in favor of a new father in a case of parental leave discrimination. This new dad received a $1.1M settlement, and not giving new fathers the same type of leave as new mothers to bond with a child can result in a claim such as this.

Medical leave allows for an employee to be off work for a medical condition. This includes time off after childbirth for a woman who had a baby. Labor and delivery would fall under a medical leave policy, but bonding time is not. The woman’s doctor provides information about the length of time a patient needs to be off of work and this would be handled in the same fashion as an employee undergoing major surgery who is off due to a doctor’s order. Employers may choose to have a medical leave policy instead of offering parental leave, or they may have both.

FMLA is the set of federal regulations, but an employer can always choose to be more generous. If your Medical Leave Policy goes above and beyond FMLA, then your handbook can include just the Medical Leave Policy on its own and not include a separate FMLA policy.

It is surprisingly more complicated when an employer isn’t required to follow a federal regulation and if they also don’t have a policy in place. In these cases, employees in similar situations may, unintentionally, be treated differently. That is considered discriminatory, which is why it is imperative to create a policy and follow it. Having a policy also avoids an awkward conversation when an employee approaches an employer with a leave request.

BCN handles all types of employee leaves for its clients and can assist in policy creation. Please talk to your Human Resources representative and let them know if you have any questions about the types of leaves listed above or any other type of employment leave.

 

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Kari Stanley, HR Customer Call Center Supervisor

 

 

What to expect from your BCN Services Accounting Department

One of the most important aspects of running a business is making sure that your taxes are filed correctly and that they are paid on time. BCN’s dedicated accounting team works hard to ensure that you no longer need to worry about this aspect and can focus on other areas of your business.

Below is a list of the tax-related matters that BCN will handle on your behalf, whether you are a PEO or HRO client:

  • IRS Form 941 employer quarterly tax filings and semi-weekly deposits.
  • Federal Unemployment administration, including annual Form940 annual unemployment tax filing and quarterly deposits.
  • Forms W-2 and W-3 preparation and distribution.
  • Withholding tax filings and deposits. We handle state, city, county and school district withholding tax filings and payments.
  • State(s) Unemployment Insurance SUI quarterly tax filings and payments.
  • State(s) Unemployment Insurance account, rate update verifications and rate negotiations as needed. We are also available to assist with any client-level unemployment registrations you may need.
  • Any employment-related IRS compliance/correspondence.

If you have any questions regarding how the BCN accounting team can help alleviate the stress of employment taxes, or have other questions about these topics, please give us a call at 1-800-891-9911.

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Amy Miller, Staff Accountant

Michigan Repeals Prevailing Wage Act

On June 6, 2018, the Michigan Legislature repealed the state’s Prevailing Wage Act through the Michigan Repeal Prevailing Wages and Fringe Benefits on State Projects Initiative (the “Initiative”). Michigan’s Prevailing Wage Act required project owners to pay workers union-scale wages and benefits for state-funded construction projects. The repeal took effect on June 6, but it does not affect preexisting contracts.

The Initiative was a result of resident petitions (the petition received over 300,000 signatures), and rather than place the Initiative on the November ballot, the Legislature repealed the Act. While Governor Snyder publicly opposed repealing prevailing wages, the repeal became law without his signature or his ability to veto it.

Supporters of the Initiative claim that paying prevailing wages for state projects overcharges taxpayers and limits the number of projects that can be funded or supported. Supporters argue that the Initiative will promote the free market and fair competition. Opponents of the Initiative argue that prevailing wages provide constructions workers with fair and standardized wages and benefits so that workers can comfortably provide for their families and that taking away prevailing wages will drive qualified workers away from the state. Opponents also argue that the repeal will ultimately lead to lower quality work because unions will no longer be able to fund adequate training and apprenticeships.

The Prevailing Wage Act repeal did not affect the federal Davis-Bacon Act, which requires payment of prevailing wages on federally funded projects. It also does not affect municipal and township laws that might require payment of prevailing wages. Many projects receive both state and federal funding, and such projects (such as highway construction) will likely still require payment of prevailing wages.

Michigan is now one of 23 states without prevailing wage laws. Michigan is part of a trend of states repealing prevailing wage laws with six states repealing such laws since 2015.

This client alert is published by Dickinson Wright PLLC to inform our clients and friends of important developments in the field of labor and employment law. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in here.

 

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Copyright @ 2018 Christina K. McDonald, Dickinson Wright PLLC. (https://www.dickinson-wright.com/news-alerts/michigan-repeals-prevailing-wage-act). Republished with permission.

Be aware of I-9 compliance and follow the rules to avoid audits

Immigration and Customs Enforcement (ICE), an agency of the U.S. Department of Homeland Security, recently announced that it is planning a nationwide increase of Form I-9 audits this summer. Additionally, the agency will continue to pursue criminal cases against employers and the deportation of employees who are in the United States illegally.

For fiscal year 2018, the agency has dramatically increased worksite investigations and I-9 audits, resulting in 594 criminal and 610 administrative worksite-related arrests.

In an effort to keep employers up-to-date on this topic, following are some tips for I-9 compliance:

Make sure you are using the most updated version of the form

The I-9 form is updated from time-to-time. To be compliant, an employee and employer must complete the most up-to-date version or they risk fines for each incorrect form that has been completed and submitted. The most current version of the I-9 form shows OMB No. 1615-0047 and expiration date of 8/31/2019 in the upper right-hand corner.

Adhere to signing timelines

Section 1 of the I-9 form must be completed by the employee “at the time of hire.” This is defined as starting when the employee accepts the job offer through the end of the employee’s first day of active employment. This means if your new hire is completing the I-9 form the week after his or her first day, it is not in compliance with the law.

Section 2 of the form must be completed by the employer within 3 business days of the date of hire (defined as the employee’s first day of active work).

Provide employees with the instruction document and List of Acceptable Documents

The I-9 form has a 15-page instruction document as well as a List of Acceptable Documents. Both of these items must be made available to employees as they complete Section 1 of the form. This may be provided either in print or electronically.

Documentation must be presented in original form and unexpired

Employees must present, in person, original forms of identification used to verify identity and employment eligibility. These must be presented to the company representative who will complete Section 2 of the I-9 form. The documentation must be inspected for authenticity; if the company representative feels the document does not reasonably appear to be genuine or does not relate to the employee, the representative may reject the document and ask the employee to provide another document to satisfy requirements.

As a reminder, the employer may not specify the types of documents that can be used to validate identity and eligibility to work. This means that an employer should not say, “Please bring your driver’s license and Social Security card on your first day to complete the I-9.” Any documentation presented within List of Acceptable Documents may be used.

BCN Services can assist your business with proper form completion as well as audit preparation and response. Please contact us at 1-800-891-9911 with questions or if you need assistance.

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Alicia Freeman, Operations Manager

Starbucks incident points out employer responsibilities and actions

“Venti Chai Latte with two shots of espresso please.” That is one of my favorite drinks at Starbucks, or maybe an extra strong Americano with cream. On a recent visit, I saw the notice that Starbucks was closing all 8,000 stores on the afternoon of May 29 for unconscious bias education. This stemmed from a recent incident at a Philadelphia Starbucks in which a store manager called police as two black men visited the store and did not place an order, saying that they were waiting to meet with a colleague. Due to the manager’s action, the men were arrested and charged with trespassing. This raises the question of what is racial-bias and racial discrimination and what employers need to know about it.

Starbucks CEO Kevin Johnson has acknowledged the company’s fault, apologizing to the two men and the community and vowing to train and enlighten their employees as well as make such training part of the onboarding process for new partners.

What is racism and what are the signs?

In its most basic definition, racism is discrimination and negative stereotyping based on race or skin color. Racial discrimination occurs when an employee is discriminated against based on race or national heritage. While it is sometimes obvious and easy to spot, it is more often subtle and difficult to detect. Examples of blatant racial discrimination include the use of racial slurs, slurs masked as jokes or noticeable advancement issues. Signs also include strategic and obvious assignment of work duties, belittling and condescending conversation and other forms of unfair treatment. Federal laws prohibit this behavior. Racial discrimination in the workplace is strictly prohibited by many federal and state laws. Primary federal laws prohibiting racial discrimination fall under Title VII of the Civil Rights Act of 1964 which says employers cannot:

  • Fail/refuse to hire an employee based on race
  • Fire or discipline an employee based on race
  • Pay an employee less or provide fewer benefits based on race
  • Fail to provide promotions or opportunities to an employee based on race
  • Improperly classify or segregate employees or applicants based on race.

According to the federal Equal Employment Opportunity Commission (EEOC), which enforces Title VII, race discrimination is the most common type of reported workplace discrimination. In recent years, companies have had to pay upwards of millions of dollars to compensate victims of race discrimination.

Sometimes racial discrimination is subtle

Another form of racial discrimination is called micro-aggression, which refers to more subtle forms of racial bias such as petty slights or obstacles that can cause serious emotional harm over time or affect people in a variety of ways. Examples include:

  • Comments about a person’s race, including ones that are positive on the surface about the employee but belittle the person’s race (“You’re well-spoken for an Asian man”)
  • Jokes about a person’s race or about the race of an employee’s spouse or children
  • Unusual scrutiny given the actions of an employee of one race as opposed to others
  • Dress codes that are designed to prevent “ethnic” looks by controlling someone’s hair and clothing in a way that’s not necessary for the job.

Recognize the signs and take action

How can an employer recognize racial discrimination and combat racism? What sort of steps should an employee take if they have been a victim or have witnessed it?
In order to report racial discrimination, you first have to be able to recognize it. Here are some of the more obvious signs of disparate treatment and racial discrimination:

  • Assigning an employee job duties below their qualifications and job title, such as fetching coffee or filing
  • Consistently promoting employees of one race over another
  • Giving higher performance reviews to employees of one race over another
  • Not hiring a qualified candidate because he or she “wouldn’t fit in” due to race
  • Assigning employees of one race dangerous job tasks while giving safer, easier jobs to employees of another race.

If you believe you have been the victim of racial discrimination at work, there are steps to combat it and prevent it from continuing. Speak with your manager and/or the Human Resources Office immediately to report it – whether it is something you experienced or witnessed. Human Resources can protect both the affected employees and the company.

Take detailed notes of the occurrence, consult the employee handbook, and notify your business leaders of what’s going on so they can take reasonable steps to prevent it from continuing. Once the complaint is filed, the company is required to confront the issue and stop the behavior. If appropriate action is not taken, it can also be reported to the EEOC.

Although it may be difficult to identify racial bias or microaggressions, employers must address the issue and put a stop to the behavior. If you are a leader within your organization, listen to employees when they speak up about such situations. The first and best way to combat racial discrimination is to be willing to listen, empathize and learn. You can also follow the Starbucks example and ensure that your employees are well educated on what racial discrimination is and how to combat such actions and prevent them from happening.

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Thom Moore, Partnership Manager

Neglecting a garnishment could prove costly to your business

Employers receive garnishments for their employees for many reasons. Whether the order is for child support, a tax levy or creditor wage garnishments, it is extremely important that all such orders be handled promptly and accurately or employers can risk major consequences.

In most states, the employer may be liable for the full amount of a debtor’s outstanding debt, as well as interest and penalties. In extreme cases, employers deliberately violating a garnishment order may also be prosecuted criminally and face fines or imprisonment.

For terminated employees and those who have never been employed by the company, it is still necessary to complete any disclosure with this information, otherwise penalties and fines will still apply.

When receiving any garnishment order, the best practice is to send all paperwork received to your payroll specialist as soon as possible.  They must review these documents promptly to ensure that all employer requirements are met in a timely fashion. Depending on the order, this may include not only putting the order into place for future payroll deductions, but also handling written responses to the garnishing authority and/or employee and employee pay records to show earnings available for garnishment.

Proper garnishment administration will not only help your business avoid penalties but will ensure that your employees stay in good standing with the court order, as well.

The payroll team at BCN Services has a wealth of knowledge and experience in garnishment administration.  Please contact us at 1-800-891-9911 with any questions or for further information.

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Dani Austin, Payroll Supervisor

Time to take a fresh look at preventing harassment in your workplace

The “Me Too” and “Time’s Up” movements have garnered attention in the media, the legal community, the workplace and the agencies who protect our workplaces. There is a new culture beginning to emerge in the era of “Me Too” and “Time’s Up.” How should employers respond?

The Equal Employment Opportunity Commission (EEOC) reports increased inquiries about potential sexual harassment claims and the agency is prepping its investigators through intense training and education for a rise in complaints.  The legal community, for its part, reports an uptick in expectations and ever-increasing settlement demands.  There is a lower standard emerging for what constitutes pervasive harassing behavior.  Changes in legislation are anticipated to impact confidentiality agreements and business expense liability.  Both entities agree: It is time for employers to make meaningful cultural change and approach harassment prevention in a whole new fashion.

First, employers should focus on preventing all types of harassment including sexual harassment and harassment based on any protected characteristic such as gender, national origin, race, color, age, religion, pregnancy, genetics, military status, disability, etc.  Address the behavior before it escalates and consider behavior such as rudeness and incivility which leads to bullying and, left unchecked, leads to more pervasive, harassing behavior.

In other words, foster a work environment that is positive, comfortable and respectful.  To do so, take aim at these areas:

  • Leadership and Accountability: Establish a culture of respect in which harassment is not tolerated and make a commitment to assess harassment risk factors and take steps to minimize risks.  Allocate resources and time to a harassment prevention program and train mid-level managers and front-line supervisors to prevent and/or respond to workplace harassment.  Invest in best-practice preventive measures such as workplace climate surveys, training regarding civility in the workplace and bystander intervention training.
  • Anti-Harassment Policy: Establish a policy that is easy to understand, regularly communicated, and clearly states harassment of any type will not be tolerated.  It should be written in clear, simple words and in all languages used by members of the workforce.  A comprehensive policy will include:
    • A written description of prohibited conduct including examples.
    • A reporting system for those who experience or observe harassment. The reporting system must provide a prompt, thorough and impartial investigation.
    • A statement that identities of all (claimant, witness or target of the complaint) will be kept confidential to the extent possible.
    • A statement that any information gathered will be kept confidential to the extent possible.
    • An assurance that the employer will take immediate and appropriate corrective action if harassment has occurred.
    • A statement that retaliation against an individual who reports a claim or cooperates will not be tolerated and will be appropriately disciplined.
  • Complaint Procedure and Reporting System: This procedure should be available to employees whether they experience harassment or observe it. There should be multiple, readily accessible reporting channels. Employer representatives must be trained to: take reports seriously; conduct objective, neutral, thorough investigations; provide timely responses; protect the privacy of individuals to the extent possible; document all steps taken; take appropriate discipline action as warranted; and provide a reporting mechanism for individuals should they experience retaliation.
  • Investigation Procedure: Establish a prompt, thorough and impartial investigation protocol. Once an employer has knowledge of a complaint, an investigation must take place. This should include:
    • Meeting the minimum standard of the anti-harassment policy. Do what it says or more.
    • Identify who will conduct the investigation. More than one investigator is preferred.
    • In all cases, as information is gathered: Listen and document.  Offer assurance of non-retaliation.  Do not guarantee anonymity, but rather maintain confidentiality to the extent possible.
    • Gather information from the complainant, witnesses and from the accused.
    • Conduct an impartial review of findings and take appropriate corrective action if harassment occurred.
    • Communicate the determination of the investigation to all parties.
  • Training for Compliance: Establish a harassment prevention training program which provides bystander intervention techniques to teach people what they can say, and what to steps to take if harassment happens to them. A meaningful program will go beyond the legalese to focus on behaviors and non-verbal cues, encourage civility the workplace by stopping harassment where it starts, and promote a workplace culture that is positive, comfortable and respectful.  Harassment prevention training should include:
    • Examples tailored to the specific workplace and workforce.
    • Education for employees about their rights and responsibilities.
    • Using simple terms, a description of the reporting system.
    • An explanation of the consequences of unacceptable workplace conduct.
    • Encouraging managers and supervisors to practice situational awareness and address risk factors such as rudeness, incivility and bullying before the situation escalates to harassment.

Do you need help formulating a policy or taking action in workplace? Contact your HR specialists at BCN Services. We can help you begin the process for your company.

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Susan Price, Strategic Services Manager