Are You Ready?

It is more important than ever to create a culture of respect in your dispensary. The cannabis industry is entering the mainstream as legalization efforts gain momentum in new markets. This means you must address problems that are gaining increased scrutiny in other sectors, including sexual harassment. To do so, you will need to ensure you have policies and practices in place to stay in compliance, avoid lawsuits and create an environment in which people want to work. (Refer to the January/February 2018 issue of Cannabis Dispensary and read the article “No Means No” for guidance).

Now, states are acting to ensure that employees are not victims of harassment by requiring that employers provide specific sexual harassment training. This training is mandated by law if your dispensary does business in California, Connecticut, New York, Maine and Delaware. An additional seven states have pending legislation. Local governments, including New York City and Washington, D.C., also are adding their own requirements for sexual harassment training to their books.

That said, it would be incorrect to believe that dispensaries only in those jurisdictions need to provide sexual harassment and other forms of workplace harassment prevention training to employees. Many other states, such as Colorado, Florida, Massachusetts, Michigan, Oklahoma, Rhode Island, Tennessee, Utah and Vermont, have laws that “encourage” employers to provide such training. Other federal and state laws, regulations and court decisions have made it clear that employers should provide anti-harassment training to all employees in all states. The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidelines to employers in all states saying that they periodically “should provide [harassment prevention] training to all employees to ensure they understand their rights and responsibilities.”

While other states may not have such a thorough and exhaustive definition, California’s sexual harassment law provides a good guideline for dispensaries operating in all states.

General training in respectful behavioral and workplace sexual harassment will not meet the requirements of states that now have mandatory training because the laws detail specific content that must be addressed. It is critical for dispensaries in jurisdictions with strict sexual harassment training laws to review and understand the specific requirements, which vary widely in scope and impact. Here is an overview of some:

General training in respectful behavioral and workplace sexual harassment will not meet the requirements of states that now require mandatory training.

Delaware

• By January 2020, all employers with at least 50 workers (not counting independent contractors or employees with less than six months of continuous employment) must provide training.
• Training must be repeated every two years, or within one year for new hires/new supervisors.
• Content is specified by the state and must be interactive.
• Employers with more than four employees had to provide the Delaware Department of Labor information sheets to existing employees by July 1, 2019, and to all new hires when they begin employment.

New York City

• By April 1, 2020, all employees who work in companies with 15 or more employees and work more than 90 hours in a calendar year must be trained.

New York State

• Training for all employees and supervisors located in the state had to be completed by January 2019.

Connecticut

• A minimum of two hours of training for supervisors, including team leaders, for all employers who have more than 50 employees, is required.
• Training must occur within six months of hire/promotion.
• Content is specified by the state; online training is acceptable. Training records should be maintained.
• Additionally, employers with three or more employees must post notices regarding the illegality of sexual harassment and remedies available to victims.

Maine

• All employers with 15 or more employees must train staff within one year of new hire/promotion.
• Content is specified by the state and requires additional training content for supervisors.

California

• By Jan. 1, 2020, all employers with five or more employees must train all workers.
• Definition of employees includes volunteers, unpaid interns and independent contractors. Temporary and seasonal employees who work 100 hours in a year or more than 30 days must be trained after hire.
• Note that “employers” includes those who receive staffing services, such as contract workers from an employment agency.
• Training must be interactive, with practical examples, and can be taken either online or in a group.
• Two hours of training for supervisors and one hour of training for non- supervisors/employees is required every two years
• New-hire employees must be trained within six months of hire and supervisors within six months of their hiring date or promotion.
• Content is specified by the state and must be presented by persons with specific training, who are considered “qualified trainers” under California law.

California has the most requirements and thus the largest impact to current cannabis retailers and cultivators. The dispensary manager or human resources expert is advised to contact the California Department of Fair Employment and Housing for the most recent training descriptions, fact sheets, brochures and required posters.

Note also that California Senate Bill 1343 expands employer liability by making employers responsible for any acts of harassment by or against employees and non-employees (such as independent contractors and seasonal workers) and establishes that one can be held liable for even one comment if it has interfered with work or creates a hostile work environment.

Further, specific employer obligations are mandated in California:

• Take all reasonable steps to prevent discrimination and harassment from occurring. If harassment does occur, take effective action to stop any further harassment and to correct any effects of the harassment.
• Develop and implement an unlawful discrimination and harassment prevention policy with a procedure for employees to make complaints and for the employer to investigate complaints in a timely manner.
• Fully inform all personnel of their rights and any obligations to secure those rights.
• Establish procedures for the organization to fully and effectively investigate any harassment complaints. The investigation must be thorough, objective and complete. Anyone with information regarding the matter should be interviewed. The HR manager or company leaders must make a determination, and the results need to be communicated to the complainant, to the alleged harasser and, as appropriate, to all others who are directly concerned.
• Take prompt and effective corrective action if the harassment allegations are proven. The employer must take appropriate action to stop the harassment and ensure it will not continue. The employer must also communicate to the complainant that action has been taken to stop the harassment from recurring. Finally, appropriate steps must be taken to remedy the complainant's damages, if any.

Because California usually sets employment law (and other) trends, dispensary owners and managers who operate in other states without sexual harassment guidance would be well advised to provide state-specific training now instead of waiting for their jurisdictions to establish regulations..

I recently interviewed HR professional Dominique Fruchman, who has completed the specialized training required by California and provides sexual harassment and respectful workplace individual and small group training for employers in Southern California’s Coachella Valley. Fruchman emphasized the importance of getting your dispensary employees trained as soon as possible.

“The law is biased toward protecting the employee, not the small-business owner," Fruchman says. "Thus, that ‘ounce of prevention’ of an hour or two of preventive training will protect you in what has become a highly litigious #MeToo and #TimesUp environment, where employees are more savvy. I recommend face-to-face training if you have more than 15 employees (as defined by the new law) because it will be easier to complete the training in a timely and cost-effective manner, and it is more engaging and interactive for your staff. In-person or online training in California usually costs $25 per employee and $50 per supervisor, although discounts might be available depending on the individual trainer. Employment labor attorneys can charge $1,500 to $2,500 for a group of 30 supervisors.”

Fruchman points out that in California, the content is very specific and must cover topics such as harassment, bullying, gender identification, sexual harassment and retaliation. Participants will receive a certificate of training, and the employer must keep records of the number of participants and the dates the training was completed. She notes that “some dispensary employers may have gotten their start in the ‘gray market’ or have employees whose culture and experience is definitely not corporate; it is critical that these employees have the training because this may be a radically new concept for them, plus a new cultural environment, which is highly regulated. There are new rules to follow with consequences for both the employee and the employer if the rules aren’t followed.”

The Bottom Line

Dispensaries must approach workplace harassment prevention with extreme caution to reduce the risk of lawsuits, agency charges and penalties and other negative business impacts. Make prevention part of your company policies and have it documented in your employee handbook. Get your training in place whether the state currently requires it or not. Prevention policies and training constitute the first and foremost best practice in preventing legal risks associated with sexual harassment.

Additionally, there is a sound business case for providing harassment prevention training at your dispensary:

• It reduces the occurrence of workplace harassment and a hostile work environment, which will increase productivity, and as a result, profits.
• Potential and current employees know your dispensary is a “safe” environment, which will have a positive impact on employee morale and longevity.
• The dispensary can avoid punitive damages in a harassment lawsuit and limit exposure for potential lawsuits by demonstrating that they have provided training.

What Actions Should A Dispensary Take Now?

• Determine which state and local laws apply to your dispensary.
• Design an anti-harassment and anti-discrimination program that includes training for both supervisors and employees.
• Frame the training to be about positive actions and values, not about avoiding negative repercussions. Emphasize how the training is in line with your dispensary’s professionalism and culture. Ensure employees that they are a part of the solution, not potential harassers.
• Review your policies and ensure they meet the minimum requirements discussed in this article, and ensure they are written and available to all employees.
• Review or draft a policy for responding to complaints and ensure it fosters an environment where victims feel supported and safe—and where they know that investigations will be conducted in a thorough, transparent and timely manner. (Note: The dispensary can always hire an outside investigator or HR consultants if the competency doesn’t exist in-house to conduct a proper investigation.)
• Remember that inaction by a supervisor or a slow response by upper management can result in a lawsuit based on hostile work environment; expedient response is key.
• Provide training to all employees, including independent contractors, seasonal and part-time, especially if you operate in those states that require training.
• Be ready! Avoid the bad PR, social media, upset employees and legal costs by being prepared.

The key to success is to train for prevention, not just compliance. Dispensaries can take actions now, not just “because we have to,” but because it makes good business sense. It also is an excellent way to send the right message to employees, letting them know that you take this issue seriously, that you are demonstrating your support and that you want them to feel comfortable and safe when they come to work at your company.

Note: This column is not to be considered as legal or financial advice nor does it address all HR regulatory actions that may impact your business.