The secret to workplace compliance: Don't just check the box

Early last year, shortly after the #MeToo stories had been saturating the news, I was asked to speak on a panel as the legal expert on workplace harassment and compliance, alongside one woman who was the CEO of a tech start up and another who was the vice president of people services of a large company. The moderator of our panel asked the VP of People Services to comment on what she thought made their workplace so unique. The VP gave an answer that I will always remember.

"We don't just "check the box" when it comes to employee relations," she said. "We don't ever just do the bare minimum of what is necessary when it comes to compliance. And our employees feel it. They know we make them a priority."

I smiled at her and whispered, "that's the secret, isn't it?" Over my 35 years as an employment law attorney representing businesses in California, people have asked me, "how do I best protect my company against the ever growing plethora of employment related lawsuits?" In response, I give the answer most employment attorneys do -- have compliant written policies, train your managers, audit your payroll practices, and implement good lines of communication. Of course, these basic steps are essential to ensuring that a company veer clear of employment related legal entanglements.

And yet, there are some companies who do all these things, but they seem to do them just so they can tell their boards or their insurance carriers that they have done what they are supposed to do. It is actually relatively apparent, when I spend any time at all with a company and its workforce, which kind of employer it is. The messaging comes from the top, trickling all the way down to every level, directly impacting how valued those employees feel. And how valued that workforce does or does not feel, in turn, directly impacts the amount of lawsuits, demand letters, audits, worker's compensation and administrative claims that company receives.

How can we tell if an employer is just "checking the box," or if it is truly making its workforce a priority? Here is one easy example. Last year, California passed Assembly Bill 1343, which requires nearly every employer in the state to train not only all managers, but all rank and file employees about sexual harassment. The manager class must be two hours, and the staff class can be as short as one hour. The first round of training must be completed by the end of 2019.

So, if you are a California employer, you are presented with a quandary -- how to train your workforce. AB 1343 clearly says you may comply by having each employee sit at a computer and watch an hour long, pre-recorded, state provided video. But then, what message have you sent to your employees about your company's commitment to this issue? This is truly doing just what is needed to check the box.

On the other hand, you could hold a live, employee wide training class, which allows your owners or offices to get up in front of your entire workforce and speak about their personal commitment to address harassment in the workplace. You get to tailor the tone of the class and touch on the issues that are particular to your workplace and industry. As an added bonus, a recent survey of in-house counsel indicated that live training was significantly more effective at actually reducing workplace harassment claims. For those of us who both do these trainings and defend these claims, this conclusion really comes as no surprise.

Employee training is just one vehicle that can actually telegraph to employees that they are valued. Another area is the company's communication style, both as it applies to content and process. What would your employees say about you -- does your company operate from a place of transparency, or are employees generally left in the dark? Do you want to hear from your employees or give them lip service? And then, when you do hear from them, is there a perception that management takes action, or that the information goes into a black hole?

Technology can play a key role in the process, and can aid in the delivery of important documents such as handbooks and other forms, as well as assisting the employer track and maintain them. Having a company intranet system can allow employees access to vital company information and news alerts 24/7. With a workforce that is becoming increasingly mobile and remote, employers face a challenge in ensuring that these employees still feel truly heard, valued and connected. Seeing the fallout from this in my litigation practice is what inspired me to actually develop and launch a reporting app (called kendr), which employees can load onto their phones so they can communicate (anonymously, if they choose) with upper management.

But whether it's adopting a new reporting app, implementing a town hall, or maybe even launching an anonymous survey, the underlying message should always be to let your team know that you want to hear what they have to say. Companies who commit to making this message their guidepost find they generally have fewer disgruntled employees, and then, the handful of employees who do have complaints tend to trust the company to solve their problems.

Several 2019 surveys have indicated that wage and hour class action lawsuits are at an all-time high. In Labor Code Section 2699 (otherwise known as the Private Attorneys General Act) establishes a whole other way in which employers may be sued in a representative manner for Labor Code violations. In 2018, the California Supreme Court reinvented the definition of independent contractor in Dynamex Operations West, Inc v Superior Court, and in the Troester v Starbucks decision, they re-examined the concept of allowing for de minimus time in the wage and hour context. Most recently, a California appellate court upended the longstanding definition of "reporting time pay" under the Labor Code, in the February, 2019 decision of Ward v Tilly's, Inc.

In this complicated time for California employers, where a 3-4 percent unemployment rate makes it so challenging to recruit and retain good employees, now is the time to invest in employee relationships. Take every opportunity to demonstrate to your workforce that you are not just going through the motions - that you are not that "check the box" employer. Instead of hunkering down in the trenches and building barriers between management and staff, take the time to build trust instead.