Signatures of attendance alone are not enough for some employers
Employees’ acknowledgments that they’ve attended anti-harassment training should document more than attendance; they should also show that workers understood the training’s contents, some legal experts say.
Most employers just get a signature and that’s it. Following the #MeToo movement, we recommend employers consider an acknowledgment that summarizes the company’s commitment to professional, respectful behavior. The summary also should encourage employees to contact HR if they have any questions.
We also recommend that the employee should note in the training acknowledgment that he or she received however many hours of training on sexual and other unlawful forms of harassment. The acknowledgment should note that the training covered state and federal laws, the company’s legal obligations regarding harassment and other best practices for preventing workplace harassment.
The acknowledgment also should include the statement, “I understand and will conduct myself in a manner consistent with the company’s harassment policy. I understand the company’s complaint and reporting procedure.
In addition, it should note that harassment and retaliation for reporting harassment are prohibited behavior and against company policy. The acknowledgment might conclude with a statement that the company is committed to providing a work environment free of inappropriate and disrespectful behavior, intimidation, communications and other conduct directed at someone because of that person’s protected characteristics.
Each employee attending the training should sign and date the acknowledgment and print his or her name. We recommend that either HR, a manager or the trainer also sign and print his or her name on the acknowledgment and date it.
If an employer chooses, they might also have employees sign in when the training starts and sign out when it is completed, with the start and finish times noted on the sheet. We also recommend putting copies of the sign-in sheet in each employee’s personnel file.
Acknowledgment with Respectful Workplaces Training
We also favor a proactive approach with acknowledgments. Our training focuses on how to build respectful workplaces, rather than harassment prevention, because we feel employees are more receptive to this training and less likely to make uncomfortable jokes about it.
Other recommended acknowledgments would note that the employee received training on respect in the workplace, which includes the prevention of workplace harassment, and the date on which the training was administered. The employee would also acknowledge the following: “I agree to abide by the principles that were explained in this training and understand my role in upholding a respectful workplace. I understand that if I have any questions that were not addressed in training, or if I encounter any problems, I can contact the director of human resources or a manager of the management team at XYZ company.”
Usefulness of Acknowledgments
We believe a signed acknowledgment can be useful if the Equal Employment Opportunity Commission (EEOC) investigates a discrimination charge. The EEOC often asks if the employer has conducted anti-harassment training for employees.
The acknowledgment helps defend against claims that:
- the harasser didn’t know about the harassment-prevention policies
- people were victimized because there was no prevention training
- victims weren’t informed about the employer’s harassment-prevention or reporting policies
Failing to inform them about such policies may bar an employer from reducing or avoiding liability under the Faragher-Ellerth defense. Under the Supreme Court’s Faragher and Ellerth rulings, employers can establish a defense to liability or damages if they can show that they exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and that an employee unreasonably failed to take advantage of any of the employer’s preventive or corrective opportunities.
The acknowledgment also can be used to see who attended the training if investigating future harassment complaints.
Don’t Ask if Employees Have Been Harassed
An employer should not ask on a form at the end of harassment-prevention training whether employees have been victims of harassment. Such a question would open the door to tremendous liability, retaliation and the potential for false claims.
Sometimes employees volunteer at the end of anti-harassment training that they’ve been harassed, in which case they should be directed to report to HR, and the trainer should alert HR.
Employers that are trying to encourage previously silent victims to come forward might consider asking employees to take an anonymous survey. But the best way of encouraging reporting is fostering an atmosphere of trust by adopting and following clear and well-publicized policies for reporting and investigating harassment in the workplace.