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For the first time in 25 years, the Equal Employment Opportunity Commission has issued updated workplace harassment guidance for employers, increasing possible exposure to employee-initiated lawsuits.

The new guidance expands employee protections to include harassment based on sexual orientation and gender identity, as well as taking into account that harassment can be perpetrated virtually via text messaging, e-mails and other online or app-based mediums.

These are federal guidelines, meaning that they open a new avenue for potential employment practices liability exposure. Employers should understand this new guidance to ensure they don’t run afoul of the law and risk being sued by a worker.

Sex-based harassment

The new guidance expands the definition of sex-based harassment to include harassment related to breastfeeding, morning sickness, contraception and the decision to obtain — or not obtain — an abortion.

It also expands protections to include harassment based on sexual orientation and gender identity. An example of the latter would be an employer intentionally and repeatedly using a name or pronoun that is inconsistent with the worker’s gender identity, or denying access to bathrooms that are consistent with their identity.

Virtual harassment

The guidance notes that harassment does not have to be perpetrated in person to be illegal.

It states that harassment can also occur in the “virtual work environment,” such as through the company e-mail system, electronic bulletin boards, instant message systems, videoconferencing technology, intranet or official social media accounts.

The EEOC stated that while off-duty offensive social media posts sent on work systems generally don’t constitute harassment, they may if they impact the workplace, such as if the postings are directed at a particular employee or employer and are referenced at work.

The agency also stated that even if offensive material is sent while off-duty on non-work systems, like using personal phones or tablets to text harassing messages or making derogatory posts on their own social media accounts, it could be considered illegal.

The takeaway

The EEOC has designated workplace harassment as an enforcement priority.

Employers should update their anti-harassment policies and procedures in their employee handbooks to reflect the changes to EEOC guidance. Managers and supervisors should be trained in the new guidance as well.

The EEOC recommends that anti-harassment policies, at a minimum:

• Define what conduct is prohibited, and be widely disseminated;
• Be comprehensible to workers, including those whom the employer has reason to believe might have barriers to comprehension, such as limited literacy skills or proficiency in English;
• Require that supervisors report harassment when they are aware of it;
• Offer multiple ways to report harassment;
• Identify points of contact to whom reports of harassment should be made, including contact information; and
• Explain the employer’s complaint process, including the anti-retaliation and confidentiality protections.

California Insurance Commissioner Ricardo Lara on May 31 approved all of the Workers’ Compensation Insurance Rating Bureau’s recommended changes to class codes for some electronics manufacturing sectors, as well as increases to the wage thresholds for construction industry dual classifications.

The following changes will take effect for policies incepting on or after Sept. 1, 2024:

Electronics manufacturing industry

One of the changes links two more classes to the 8874 companion classification, which was created in September 2022 to cover certain low-risk classes in the electronics industry group.

Currently, 8874 is a companion class that covers payroll for lower-risk jobs in hardware and software design and development, computer-aided design, clerical and outside sales operations for two electronics industry classes:

• 3681 (manufacturing operations for electronic instruments, computer peripherals, telecommunications equipment), and
• 4112 (integrated circuit and semiconductor wafer manufacturing).

Starting Sept. 1, similar low-risk white-collar personnel currently assigned to class 3572 (medical instrument manufacturing) and 3682 (non-electric instrument manufacturing) will be linked to the 8874 companion class code.

Dual-wage increases

The thresholds that separate high- and low-wage earners in 16 dual-wage construction classes are also increasing Sept. 1.

These class codes have vastly different pure premium rates for workers above and below a certain threshold as the lower-wage workers (often who are less experienced) have historically filed more workers’ comp claims. Rates for lower-wage workers are often double the rates for higher-wage workers.

The following illustrates the changes:

As a business owner, you could be held liable for the actions of other peoples’ employees.

U.S. employment law has long recognized that workers may have an employment relationship with multiple entities at the same time. That means your company could get stung with OSHA fines, Title VII discrimination claims and other actions that arise from the actions of an employee that you thought was a subcontractor.

Here’s why:

In Secretary of Labor vs. Summit Contractors, the 8^th Circuit ruled that companies that exercise overall control of a job site can be held liable for workplace infractions – even when the individual or individuals directly responsible for the infraction were employees of another firm, and no employees of the controlling employer were directly involved.

Furthermore, even if your company doesn’t exercise direct supervisory control of subcontractors, courts have held that a de facto employment situation exists if the controlling employer simply reserves the right to exercise control.

Protecting yourself

Here are some ways to safeguard yourself from joint employer liability:

• Ensure that all subcontractors have employee liability insurance and general liability insurance of their own.
• Check out the vendor or subcontractor’s track record with safety and OSHA-related claims.
• Research the subcontractor’s bonding history.
• Ensure your employer’s liability insurance covers claims that may arise from contractors and vendors working on your property, or on worksites your company controls.
• Negotiate for an indemnification clause in any vendor contracts or subcontracting arrangements.
• Don’t rely on verbal assurances: Put the subcontractor’s responsibility for complying with OSHA standards and labor laws, rules and regulations in writing, as part of the contract.
• Hold regular safety meetings with representatives from the subcontractor’s firm, and document them.
• Don’t sign a contract with a manpower or employee leasing firm unless you have looked through it for exposure to liability from their employees.
• Ensure the vendor or subcontractor is providing job site supervision. At a minimum, ensure their management is checking on the site regularly. If all supervision is left to you, federal regulators may deem these workers to be your employees.
• Don’t discipline the subcontractor’s workers directly. Work through the subcontracting entity wherever possible. If your supervisors attempt to discipline their employees, or direct their work too closely, courts may find that a de facto employment relationship exists with your firm as well as with the subcontractor. This exposes you to liabilities that these employees may cause.
• Train your middle managers and foremen that they should not attempt to take on the role of supervisor to subcontractors’ employees and onsite vendors.
• Don’t lend heavy equipment, power tools or vehicles to subcontractors on the job site, unless you also send a designated operator. Contractors are expected to have and maintain their own equipment. Also, when you send your own operator with a forklift, for example, you can help ensure that the subcontractor doesn’t expose you to liability because of an accident caused by an unqualified operator.

For more information, or to schedule an insurance and risk exposure review, call us today.