Clear Law Institute, LLC: 2021

Monday 7 June 2021

Why Wage and Hour Training for Managers is Essential

Employers must ensure that managers are trained to comply with the nuances of federal, state, and local wage and hour laws. Without training, managers may unknowingly violate the law. For example, managers may miscalculate time worked or fail to comply with mandatory rest and meal periods.

In recent years, litigation over wage and hour issues has exploded. Violations have led to dire consequences, including lengthy litigations that end in multi-million-dollar settlements. By investing in training now, companies can stop problems before they arise, minimize legal risk, and steer clear of costly verdicts and settlements.

This article will cover:

What are wage and hour laws?
What happens when managers are not trained?
What legal protections are employers afforded when they train managers?
What topics should effective wage and hour training include?
Where do you find interactive, online manager training?

What Are Wage and Hour Laws?

There are numerous laws governing wage and hour obligations at the federal, state, and local levels. The most prominent is the Fair Labor Standards Act (FLSA). The FLSA sets basic federal employment law requirements, including overtime pay requirements, child labor laws, recordkeeping requirements, and the federal minimum wage. The FLSA is administered by the U.S. Department of Labor’s Wage and Hour Division, which is tasked with ensuring that basic labor standards are met.

In addition to requirements imposed by the federal government through the FLSA, states also have their own employment laws. They relate to the same topics, including minimum wage, overtime requirements, child labor, and recordkeeping. In addition, several states and localities impose minimum meal and break period requirements and predictive scheduling requirements. These state and local government requirements vary widely, so it is critical that managers are trained to know the requirements where they work.

What Happens When Managers Are Not Trained?

When managers are not trained in wage and hour laws, they are more likely to violate such laws, which can lead to significant monetary and non-monetary costs. In recent years, businesses have had to pay millions of dollars in fines and class action settlements for miscalculations and violations. Among others:

Bank of America and its Merrill Lynch unit had to pay $14 million to settle lawsuits that claimed they failed to pay financial advisers overtime.
Walmart reached a deal with the United States Department of Labor to pay $33.5 million in back wages after the company was accused of violating overtime laws.
The Children’s Hospital Los Angeles paid $27 million to resolve four class action lawsuits brought on behalf of thousands of workers who claimed they were denied breaks and not paid their full wages.

In addition to financial costs, an organization can suffer significant reputational harm when its name is associated with wage and hour violations. Employers who fail to properly pay and calculate wages seem less competent, trustworthy, and business savvy. These violations can make consumers wary about buying a company’s products or services and make potential employees skeptical about working there.

Organizations can protect their reputation by avoiding wage and hour violations altogether. Training managers on proper wage and hour practices that comply with federal, state, and local laws is essential and will help stop problems before they arise.

What Legal Protections Are Employers Afforded When They Train Managers?

Training managers can help employers minimize their liability under the FLSA. Employers that violate the FLSA can expose themselves to “liquidated damages,” which is equivalent to the unpaid wages the employee should have received. Congress, however, has provided employers a good faith defense if they violate the FLSA. If employers prove “to the satisfaction of the court that the act or omission was in good faith and that [the employer] had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act, the court may, in its sound discretion, award no liquidated damages.” This means that so long as an employer was acting in good faith and had a reasonable belief its conduct was not in violation of the FLSA, the court may choose not to impose liquidated damages.

Liquidated damages in an FLSA action are very costly. In addition to paying the employee his unpaid wages, the court can also order the employer to pay double that in the form of liquidated damages. For example, if an employee is owed $10,000 in unpaid wages, the court could order the employer to pay him $10,000 in unpaid wages and an additional $10,000 in liquidated damages for a total of $20,000. Thus, establishing a good faith defense and eliminating liquidated damages can dramatically reduce the amount employers have to pay if a violation occurs.

Training managers on wage and hour laws helps employers assert a good faith defense to FLSA violations. As stated by one federal district court judge, “[t]he employer must show it ‘actively endeavored’ and took ‘affirmative ‘steps’ to ensure compliance’ with the FLSA” to receive the good faith defense. When an organization trains managers, it is taking a proactive step to comply with the FLSA.

Hence, manager training can help effectively limit liability for an employer against a wage and hour claim.

What Topics Should Effective Wage and Hour Training Include?

Effective training addresses managers’ responsibilities for complying not only with the federal FLSA but also with comparable state and local wage and hour laws. Though the FLSA is important, many state and local laws often are much more expansive and provide for greater damages.

Effective wage and hour training will teach managers how to take the actions listed below.

Recognize Which Employees are Classified as Exempt

This is critical because exempt employees are not entitled to overtime while non-exempt employees are.

Identify Which Activities of Non-Exempt Employees are Paid

Managers must be trained on the nuances of when employees must be paid for off-duty calls and texts, commuting time, on-call time, and work done over lunch.

Ensure that Employees’ Work Hours are Properly Scheduled and Recorded

Managers must learn how to comply with mandatory rest and meal periods and predictive scheduling requirements.

By training employees on all relevant wage and hour requirements, organizations can more effectively run their business and significantly reduce the risk of noncompliance.

Where to Find Interactive, Online Manager Training

By providing wage and hour training, employers can stop violations before they happen. A company may have detailed, effective corporate policies about wage and hour requirements and still be open to liability if managers do not understand and follow these policies.

Clear Law Institute’s Wage and Hour Law for Managers course provides practical guidance for managers on the Fair Labor Standards Act (FLSA) as well as comparable state and local laws. The training can be customized to an organization’s specific policies and procedures so that managers receive the exact guidance they need to comply with the organization’s policies.

Learn more about Clear Law Institute’s online training, Wage and Hour Law for Managers.

About the Author

Michael Johnson, CEO of Clear Law Institute, is a former Trial Attorney in the U.S. Department of Justice, where he litigated cases against employers around the nation. He has provided training and consulting around the world for organizations such as Google, FedEx, HP, the EEOC, and the United Nations. He is a graduate of Duke University and Harvard Law School.

The post Why Wage and Hour Training for Managers is Essential appeared first on Clear Law Institute.

Read full post at: https://clearlawinstitute.com/blog/2021/06/07/why-wage-and-hour-training-for-managers-is-essential/

Why Unconscious Bias Training for Employees is Essential

Supporting diversity and inclusion efforts is important in today’s increasingly diverse workplace. Employers should, and in some jurisdictions, must provide foundational anti-harassment and anti-discrimination training to employees. Employers should also provide employees unconscious bias training.

Unconscious bias happens when people make decisions that are implicitly based upon characteristics of another without even realizing or intending to do so. When unconscious bias occurs in the workplace, employers are at risk from a legal and human resources standpoint.

Effective training helps employees understand that unconscious biases exist and helps them take steps to reduce the likelihood that such biases will impact their decisions and interactions with others in the workplace.

In this article, we discuss:

What are unconscious biases?
What are the goals of providing unconscious bias training to employees?
What are effective instructional design principles for unconscious bias training?
Which types of bias should unconscious bias training address?

What Are Unconscious Biases?

Unconscious biases are stereotypes or assumptions that a person makes about a certain group of individuals outside of their own conscious awareness. The Kirwan Institute for the Study of Race and Ethnicity explains “[t]hese biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual’s awareness or intentional control.” These biases are influenced by a variety of factors, including the person’s culture, background, and personal experiences.

Implicit biases exist because a person’s “conscious brain” can only process about 40 bits of information per second, leaving the “unconscious brain” to process the rest. To do so, the “unconscious brain” continually runs in the background and quickly filters, prioritizes, and categorizes information, so that the “conscious brain” can focus on the information it deems most important. When this process is applied to the characteristics of groups of people, the brain creates stereotypes. When people apply these stereotypes to interactions and decisions about others, it can lead to discrimination. When this occurs in the workplace, employers and employees face multiple problems.

Unconscious biases about certain groups can have serious impacts on people’s lives. For example, unconscious biases can impact the job posting and hiring process. A 2020 study found that hiring managers gravitated towards candidates who were similar to them, leading men to hire men, as they tend to see them as more “competent” than women. These biases can also impact professional interactions. A 2017 healthcare industry study shows that bias amongst healthcare professionals is common and that it reduces the quality of patient care.

Unconscious biases are also harmful to organizations. The Center for Talent Innovation found that employees who perceive bias against them at work are:

Three times more likely to be disengaged,
Three times more likely to say they are planning on leaving their jobs within a year, and
More than twice as likely to say they have withheld ideas and market solutions over the previous six months.

Unconscious bias also has tangible effects on hiring, promotions, and feedback. For example, word choice in job descriptions may discourage women from applying because they perceive a work environment as focused on more masculine qualities. Further, once hired, there can be implicit assumptions that working mothers or pregnant women are not interested in taking on more responsibilities. Even feedback can be laced with such assumptions. For example, both male and female managers are likely to critique women more harshly for being aggressive; women’s accomplishments are also more likely to be viewed as a team effort rather than their own individual accomplishments.

Because implicit biases can negatively impact employee morale, it is vital that employers invest in combatting them in the workplace.

What Are the Goals of Providing Unconscious Bias Training to Employees?

Unconscious bias training helps make people aware that unconscious bias exists and helps them take steps to reduce the likelihood that bias will impact their decisions.

The Equality and Human Rights Commission has found that training helps raise awareness that unconscious bias exists. Training participants learn that even when they do not consciously endorse a label or stereotype, it can influence their attitudes and behavior outside their conscious awareness.

Raising awareness is critical in combatting the influence of implicit bias. When people understand that they have implicit biases, they are more likely to take steps to slow down their decision-making process. This allows their more logical brain to make decisions instead of relying on their gut instinct, which can be influenced by bias.

Thus, unconscious bias training will enable employees to work towards inclusion by becoming more aware of hidden biases and taking steps to reduce the effects of biases on others.

What are Effective Instructional Design Principles for Unconscious Bias Training?

When implementing unconscious bias training, there are a few key points employers should remember.

First, training should not “preach” to employees. Unconscious bias training should foster conversations and allow employees to confront their own biases; it should not be about blaming and shaming employees.

Second, training should not imply that people are intentionally racist, sexist, or hold other biases. These biases, by their very nature, are unconscious and unintentional.

Third, training should explain that everyone can be both a victim and a perpetrator of bias. Biases are based on more than just one’s protected characteristics. Regardless of an employees’ protected characteristics such as race, gender, disability, or age, they may also be the victim of bias based on other characteristics, such as height, weight, and appearance. It is important to train employees on the variety of different biases they could hold and how to combat them.

Training should also teach employees tangible steps they can take to make workplaces more inclusive. These actions include avoiding labels and overgeneralizations; questioning automatic assumptions; and setting ground rules for meetings so that all ideas are heard.

Training employees on these practices is the first step in helping them recognize their unconscious biases and begin to combat them.

Which Types of Bias Should Unconscious Bias Training Address?

Below is a list of some of the types of bias an effective unconscious bias training course should address.

Gender Bias

Gender bias is the preference for one gender over another, often stemming from long-standing beliefs about gender roles. Many people unconsciously assign certain gender roles or characteristics to men and women that are often not based in fact. For example, across a series of five studies, researchers consistently found evidence of the implicit stereotype that “brilliance” was associated more with men than with women.

Racial Bias

Bias based on race or color of skin is also prevalent in the workplace and has a significant negative impact on people of color. Take, for example, one study in which a fictitious legal memo with grammatical and factual errors was given to law firm partners for quality assessment. Half of the law firm partners were led to believe that the memo was written by an African American lawyer and the other half were led to believe that the memo was written by a white author. Even though the law firm partners were reviewing the same memo, they found more errors and rated the memo as lower quality when they thought that the memo was written by an African American author.

LGBTQ Bias

Members of the LGBTQ community also are the victims of unconscious bias. Nearly 1 in 10 LGBTQ employees report that they have left a job because they believed that the environment was unwelcoming.

Age Bias

Age bias in the workplace is similarly pervasive. One AARP survey found nearly 1 in 4 workers ages 45 and older have been subjected to negative comments about their age from supervisors or coworkers.

Disability Bias

Many people show an unconscious bias against individuals with disabilities. One study revealed that implicit bias against people with disabilities can increase over time and with age.

Religious Bias

People also have unconscious biases for certain religions. A study from the Association for Psychological Science suggests that people share implicit preferences for their own religious group over others.

Appearance

Effective training also addresses biases based on individual characteristics such as height, weight, and attractiveness. For example, a study published in the American Psychological Association’s Journal of Personality and Social Psychology found that managers were hesitant to hire conventionally attractive people in jobs such as housekeepers and warehouse workers because they assumed applicants would be dissatisfied with the job. On the opposite end of the spectrum, managers may feel unconsciously that candidates with poor posture, nontraditional hairstyles, or different dress sense from their own may not be a good fit for certain jobs.

Other Biases

In addition to the types of biases listed above, researchers have identified more than 150 types of unconscious bias. This shows that people can exhibit preferences or biases for any characteristic that differentiates them from other people. Other common types of biases include a bias for or against a person’s accent; marital or parental status; political beliefs; geographic background; education level; veteran status; personality type (such as extrovert vs. introvert); and communication style.

Addressing a variety of different characteristics that can unknowingly influence people’s behavior and decisions gives employees a comprehensive understanding of how unintentional biases can influence their day-to-day workplace interactions.

Interactive, Online Training on Unconscious Bias

Unconscious bias training must be part of an overall strategy for diversity and inclusion. Training helps employees recognize that such biases exist and help them take steps to reduce the impact of those biases on workplace interactions and decisions.

Clear Law Institute’s online training, Unconscious Bias: Promoting a Diverse and Inclusive Workplace, provides employees practical guidance and helps foster a diverse and inclusive workplace. Among other things, training participants learn: what unconscious bias is; why it occurs; the different types of unconscious bias; how to “interrupt” unconscious bias from impacting workplace decisions and behavior; and the impact of unconscious bias on diversity and inclusion. This is a great addition to Clear Law Institute’s online Sexual Harassment training.

Clear Law Institute also offers live, instructor-led training on unconscious bias, diversity, and inclusion, as an alternative or supplement to the online course.

Learn more about Clear Law Institute’s online training, Unconscious Bias Training: Promoting a Diverse and Inclusive Workplace.

About the Author

Michael Johnson, CEO of Clear Law Institute, is a former civil rights attorney in the U.S. Department of Justice, where he brought one of DOJ’s first “pattern or practice” sexual harassment cases. He has provided training and consulting around the world for organizations such as the EEOC, the United Nations, and Google. He is a graduate of Duke University and Harvard Law School.

The post Why Unconscious Bias Training for Employees is Essential appeared first on Clear Law Institute.

Read full post at: https://clearlawinstitute.com/blog/2021/06/07/why-unconscious-bias-training-for-employees-is-essential/

Thursday 27 May 2021

Why Employers Need to Provide Cybersecurity and Data Privacy Training to their Employees

Employers must take steps to protect themselves and their employees from data hacks and cybersecurity breaches. The best way to do so is to provide their employees with cybersecurity awareness and data privacy training.

While employers often focus on firewalls and other office-wide technology, they may neglect to take steps to prevent entry via their weakest link: their employees. Often, a company’s employees are the ones that inadvertently allow cybercriminals to access confidential information. A 2020 report found that 88% of data breaches are caused by human error, and 43% of people have made mistakes at work that compromised cybersecurity.

Employers can help prevent these attacks by training their employees. If employees aren’t informed about how hackers steal information and gain access, they will not recognize threats when they receive them. This training also provides benefits beyond just teaching employees about potential cyberattacks; states have begun providing legal incentives to employers that offer cybersecurity and data privacy training.

How Do These Attacks Happen in the First Place?

Cybercriminals or hackers have continued to adapt and advance their tactics to steal data. In general, they attempt to access confidential information in one of two ways.

First, hackers may try to infect computers, mobile devices, and networks with malicious software called malware. This typically occurs when an employee is tricked into clicking on a link or installing a program from the internet.

Second, hackers may use social engineering schemes to trick employees into providing confidential information or access to company systems. For example, fake emails from seemingly similar addresses can trick employees into sending logins, passwords, and other private information. Both methods can provide access to valuable information.

How Do Data Breaches Harm Companies?

Cybersecurity attacks have become common; since 2005, there have been more than 11 trillion records breached, according to the Privacy Rights Clearinghouse. And the number continues to rise. According to the FBI, there has been a 300% increase in cybercrimes since the beginning of the COVID-19 crisis.

When hackers gain access to confidential employee and customer data, there are numerous harms beyond a breached system.

First, hacks have serious monetary costs for businesses. In a 2020 report, IBM found the average total cost of each breach was $3.86 million. Such hacks impact businesses through short term costs as they attempt to correct the breach and cause long-term hits to revenue.

Companies may also face regulatory fines after a data breach. In 2015, the Federal Communications Commission (FCC) imposed a $25 million fine on AT&T after consumer data was leaked.

Breaches also harm brand reputation, as customers lose trust in companies that have allowed hackers to breach their systems. Customers value their privacy and are wary of dealing with businesses that do not safeguard their information.

To prevent future revenue losses, businesses need to keep confidential information secure. Training employees is a critical step towards accomplishing this goal.

What Legal Incentives Exist to Encourage Data Security Training?

Already, state governments have started to offer legal incentives to implement cybersecurity and data training. These protections come in the form of safe harbor laws, which give companies an affirmative legal defense when a breach occurs if they have taken reasonable safeguards to protect information. Two states, Utah and Ohio, have already implemented such legislation.

Utah

In 2021, Governor Spencer Cox signed the Cybersecurity Affirmative Defense Act (HB80) into law. This law gives organizations that create, maintain, and reasonably comply with a written cybersecurity program at the time of a breach an affirmative defense to:

A claim alleging that the organization failed to implement reasonable information security controls that resulted in the breach of system security.
A claim that the organization failed to appropriately respond to a security breach.
A claim that the organization failed to appropriately notify an individual whose personal information was compromised in a breach of security.

An organization may not, however, use this defense if they had actual notice of a threat or hazard to the security, confidentiality, or integrity of personal information, did not act in a reasonable amount of time to take known remedial efforts, and the threat or hazard resulted in a breach of system security.

Taking advantage of these protections is voluntary for organizations, but these protections provide important legal benefits. To exercise this affirmative defense, the organization’s written security program must provide administrative, technical, and physical safeguards to protect personal information. These requirements can be fulfilled in many ways. For example, a program meets the requirements when the organization trains employees on practices and procedures to detect, prevent, and respond to a breach of system security.

Thus, training employees on security breaches helps employers in Utah establish an affirmative defense against breach-related lawsuits.

Ohio

In 2018, Ohio enacted the Ohio Data Protection Act (SB 220), similarly providing a safe harbor for businesses who voluntarily implement reasonable cybersecurity measures.

Like the Utah law, the Ohio law protects any organization that:

maintains and complies with a written cybersecurity program that contains administrative, technical, and physical safeguards for the protection of personal information, and
reasonably conforms to an industry recognized cybersecurity framework.

Already, cybersecurity frameworks like NIST Special Publication 800-171 (listed in the Ohio law) recognize training as essential. The publication specifically states that employers should “[e]nsure that managers, systems administrators, and users of organizational systems are made aware of the security risks associated with their activities and of the applicable policies, standards, and procedures related to the security of those systems.”

Connecticut

Connecticut is also currently considering HB 6607, “An Act Incentivizing the Adoption of Cybersecurity Standards for Businesses,” which would provide similar protections as Utah and Ohio.

These examples show the safe harbor laws several states have already implemented. They also indicate that this type of legislation is becoming more common, signifying that more states will continue to enact such legislation as cyberattacks become more common.

What Information Should Training Cover?

The reality is people make mistakes. Employers must be prepared for this and take steps to stop breaches before they happen. Training employees on phishing schemes and other commonly used hacking tactics is the best way to protect propriety company data. A study from 2015 found that security-related risks can be reduced by up to 70% when businesses invest in cybersecurity training and awareness.

All courses, however, are not created equal. An effective course is comprehensive and interactive, explaining the different types of potential hacks and attacks. This allows employees to spot potential breaches before they happen. Clear Law Institute provides practical training that teaches employees about:

Current Data Privacy Laws

Organizations that collect and maintain personal information must follow applicable laws such as the Health Insurance Portability and Accountability Act (HIPAA), Americans with Disabilities Act (ADA), and Family Education Rights and Privacy Act (FERPA).

Hacking

Hackers can attempt to gain access to personal information and confidential data by installing malware on a user’s computer, tablet, or mobile device.

Ransomware

Ransomware combines the use of malware with extortion, encrypting files unless the organization pays a ransom.

Social Engineering Schemes

Cybercriminals engage in social engineering schemes by contacting a person through email or phone and trying to convince them to send a payment or reveal sensitive personal information.

Email Security

Up to 90% of successful cyberattacks begin with email; emails can contain malware and are used in social engineering schemes. Identifying these schemes protects company data and confidential information.

Internet Security

Many cyber threats can occur because of how a person uses the internet. Using proper precautions when using file-sharing services and social media is essential to cybersecurity.

Password Security

Employees use passwords to log into desktops, websites, and databases. It is important for those employees to use safe password practices.

Physical Security

Information security involves more than safe email, internet, and password practices. Employers must also implement physical safeguards such as secure thumb drives and printer access codes to prevent unauthorized access to confidential information.

Next Steps: How Employers Can Provide Effective, Personalized Training

The digitization of the workplace is not going away, and neither are cybersecurity threats. Workplaces must change and adapt to protect themselves. In a 2019 study of IT decision-makers, 38% cited cybersecurity training and support as the pillar of their company’s cybersecurity posture. The study also found that organizations that emphasize training are also quicker to detect and more efficient at isolating attacks. Modern, frequently updated employee training is the key to success.

Clear Law Institute’s customized Cybersecurity Awareness and Data Privacy Training course educates employees and helps protect businesses from costly attacks. This course teaches employees the knowledge they need to understand and avoid cyber threats through practical examples.

By educating employees on security threats and how to report data breaches, employers are reducing the risk of such attacks and the crippling impact they can have on the workplace. That makes this type of training vital for every employer.

Learn more about Clear Law Institute’s online training, Cybersecurity Awareness and Data Privacy Training.

The post Why Employers Need to Provide Cybersecurity and Data Privacy Training to their Employees appeared first on Clear Law Institute.

Read full post at: https://clearlawinstitute.com/blog/2021/05/24/why-employers-need-to-provide-cybersecurity-and-data-privacy-training-to-their-employees/

Tuesday 25 May 2021

Connecticut COVID-19 Safe Workplace Training Update

COVID-19 SAFE WORKPLACE TRAINING

Update

May 25, 2021

Clear Law Institute provides compliant and current Covid-19 Safe Workplace training. Our training complies with CDC and OSHA guidelines and the growing number of states mandating COVID-19 workplace safety training. Our Compliance Advisory Team regularly monitors federal and state authorities and updates the training, as needed.

Connecticut Governor, Ned Lamont recently issued Executive Order No. 12A, lifting the state’s mask and social distancing mandate for fully vaccinated individuals.

The Connecticut Department of Public Health issued corresponding mask guidance.

Employers may require all employees to wear a mask and social distance in the workplace, regardless of vaccination status.

The post Connecticut COVID-19 Safe Workplace Training Update appeared first on Clear Law Institute.

Read full post at: https://clearlawinstitute.com/blog/connecticut-covid-19-safe-workplace-training-update-8/

Delaware COVID-19 Safe Workplace Training Update

COVID-19 SAFE WORKPLACE TRAINING

Update

May 25, 2021

Delaware Governor, John Carney recently issued the 29th modification to the COVID-19 State of Emergency declaration, lifting the state’s mask and social distancing mandate, effective May 21, 2021.

Employers may require all employees to wear masks and social distance in the workplace, regardless of vaccination status.

Employers must continue to make hand sanitizer or handwashing stations readily available for all employees through the business location, including at each entry and exit.

The post Delaware COVID-19 Safe Workplace Training Update appeared first on Clear Law Institute.

Read full post at: https://clearlawinstitute.com/blog/delaware-covid-19-safe-workplace-training-update-3/

Illinois COVID-19 Safe Workplace Training Update

COVID-19 SAFE WORKPLACE TRAINING

Update

May 25, 2021

On May 17, 2021, Illinois Governor, JB Pritzker issued COVID-19 Executive Order No. 79, lifting the state’s mask and social distancing mandate for fully vaccinated people.

Employers may require all employees to wear masks and social distance in the workplace, regardless of vaccination status.

The post Illinois COVID-19 Safe Workplace Training Update appeared first on Clear Law Institute.

Read full post at: https://clearlawinstitute.com/blog/illinois-covid-19-safe-workplace-training-update-4/