Illinois Sexual Harassment Training Soon to be Required by Law

With the passage of Senate Bill 75 and near guaranteed assurance that Governor Pritzker will sign the bill into law, Illinois has just outdone New York and California in creating the most comprehensive sexual harassment training requirement in the country.


Senate Bill 75 would require employers to provide annual sexual harassment training prevention to all employees working within the state. This sweeping change is based on the Illinois legislature finding that “tolerance of sexual harassment has a detrimental influence on workplaces by creating a hostile environment for employees, reducing productivity, and increasing legal liability.” The legislature sought to include its harassment training requirement in a sweeping package of legislation that included significant other changes to the law in that State.


By requiring training, the State of Illinois feels employers are less likely to engage in harassing practices and/or retaliatory employment actions. The legislature also feels a trained workforce is more likely to foster a culture wherein employees are comfortable reporting potential incidents and employers and managers will be more likely to create policies that counter the potential for incidents of workplace harassment.


Although we expect clarification and implementing regulations in the coming months, among the requirements of the new Illinois law include the following facets of a harassment program, which have become common to the variety of new laws passed in this area within the past year:


  • An explanation of sexual harassment consistent with Illinois State Law
  • Examples of conduct that constitutes unlawful sexual harassment
  • A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims
  • A summary of responsibilities of employers in the prevention, investigation and corrective measures of harassment


Training Every Year


As mentioned earlier, Illinois will require employers to train all of their employees at least once a year. While the state will be developing a model training program that will meet the minimum requirements of the law, employers are encouraged by the bill text to develop their own program or use that of a third party to fulfill the requirement.


Higher than Average Penalties


An interesting facet of the new Illinois law is the penalties provision, which shows Illinois is taking harassment prevention seriously. In addition to ordering non-compliant employers to train their employees within 30 days, Illinois has added a provision for financial penalties if employers choose to ignore such an order. Those penalties can range from $500 for a first offense for a very small employer to $5000 for a third offense for an employer with 4 or more employees. These penalties are certainly more than nominal, and should encourage employers of all sizes to get ahead of the curve in preparing their training programs.


Industry-Specific Training


Further, owners and managers of restaurants and bars in Illinois should be cognizant of the fact the new law enumerates specific provisions for those establishments as well. The state legislature found that restaurants and bars have a particularly high incidence of harassing behavior, and therefore are required to provide training that is specific to that industry and managers within. Syntrio will of course be developing a concurrent version of its Illinois training course that will fill the needs of restaurants and taverns.

Finally, while no date for training completion was included in the bill text, it is reasonable to expect that lawmakers expect training to be complete by January 1, 2020, as has been the pattern with other states implementing these laws. Should Illinois get the bill signed quickly by Governor Pritzker we can expect there will be implementing regulations by early this fall at the latest, as has been the pattern with New York and Delaware during calendar 2018. More to come as this law develops.

Why Is Soft Skills Training Optional?

The Situation

In my twenty-plus years in the training industry, I’ve worked both as an employee or in-house consultant purchasing training and as a vendor offering off-the-shelf and customized training. Topics such as compliance, regulatory changes, and health and safety are understandably often mandated training. Yet, the suite of interpersonal and personal competencies, typically known as “soft skills,” too often collects the digital version of dust on organizations’ learning management systems. Then, after time passes, training professionals and senior management recognize that critical soft skills remain lacking despite the availability of these optional courses, leaving them in no mood to upgrade or even continue this library due to employees’ seeming lack and interest and low use.


Simultaneously, according to one large survey, 92% of executives say that soft skills are equally important or more important than technical skills. And 89% of executives say that it is difficult to find people with soft skills. In the same survey, 44% of these same executives responded that the biggest skills gap among employees involves soft skills.


But the Research Says . . .

Employees with strong soft skills benefit companies. For example, research from Boston University, Harvard University, and the Ross School of Business at University of Michigan reveal that training employees in self-awareness and other soft skills produces a 256% return on investment. Conversely, employees with poor soft skills can actually cost organizations time and money due to problems resulting from poor communication, performance management, and leadership. With such strong evidence backing the need for soft skills training and proficiency, why aren’t more companies genuinely focused on improving these critical skills? This contradiction occurs time and again. A recent Adecco survey finds, “Of the executives who believe there is a skills gap, 89% say that apprenticeships and training programs could help. But 42% say that in-house training programs would be too expensive.”  


What’s Behind the Disconnect?

Frankly, what executive, shareholder, and other stakeholder wouldn’t welcome a 256% ROI? So, what’s clouding leadership’s thinking? One issue is not addressing the soft skills gap holistically. For instance, according to a Learning House report, “Despite pointing the finger at colleges and universities for not helping to address the skills gap, almost half of employers (43%) are not extending their hand in collaboration to these institutions to help ensure the necessary skills are being addressed.”


The same report finds that 74% of companies only invest $500 per employee on training and development in the workplace, regardless of topic.


Sometimes, leadership holds employees responsible for not taking optional soft skills training. However, research by the staffing company Randstad finds that 66% of US employees between 18 and 34 years old say they need to strengthen their interpersonal skills — where is the organizational support?


Some organizations fantasize that one-time training suffices. How many of us learned to ride a bike the first time we tried? Or mastered tying our shoes or kicking a soccer ball on the first attempt? Even more to the point, how many of us developed the technical skills that serve as the backbone of our professional experience after one course? Yet we expect individuals to demonstrate mastery of critical soft skills competencies after a single training session?


One’s confidence about new knowledge and skills doesn’t happen overnight. To wit, not enough organizations invest in and commit to a comprehensive training program involving effective soft skills courseware, role plays, supplemental learning materials, various delivery modalities, different learning styles, and so on.


How Organizations Can Close the Soft Skills Gap

First, organizations should make soft skills training a priority and requirement. They need to prove that they’re devoted to personal and professional development so that their employees succeed. According to LinkedIn’s 2018 Workplace Learning Report, 94% of employees would stay at a company longer if it invested in their career development. Further, 56% of employees would spend more time learning if their manager directed them to take a specific course to improve their professional skills.


Companies can also augment soft skills training programs with strategies like building a coaching and mentoring program, retention training, prescriptive learning paths tailored to specific job roles, and including soft skills assessments in hiring and performance reviews.


Bottom line: Investing in and fully supporting soft skills training may seem like an unnecessary expense and afterthought, but actually it can become one of the best initiatives an organization takes to remain competitive in our global economy.

New York Seeks to Expand Sexual Harassment Laws

In 2018, New York enacted sweeping legislation requiring employers to train nearly all employees that work in that State. While it is likely employers are still scrambling to meet these new requirements, the 2019 legislative session shows no signs of New York slowing down its efforts to eradicate offensive behavior from its workplaces.


Lawmakers within New York seek to pass ten bills that would dramatically expand employee protections from sexual and other harassment. Most importantly, the State seeks to alter its constitution to explicitly prohibit discrimination on the basis of everything from sex to national origin and everything in between. Such a change would alter the landscape of legal interpretation of New York harassment law, and provide yet another avenue for victims to argue that their claim was indeed illegal harassment. Constitutional protections can simplify some of the complicated statutory provisions that make up this area of law.


Along this same line, New York’s legislature seeks to remove the requirement that misconduct meet the current “severe and pervasive” standard. Currently, except in extreme circumstances, for conduct to be considered illegal harassment it must be both severe and “pervasive.” The pervasive component requires misconduct to occur on a repeated and ongoing basis, something that is a sticking point in many harassment lawsuits, and leaves many trials ending in verdicts for the defense. Should this change occur, the standard would be streamlined, and even single incidents of offensive behavior could create liability for employers.


New York also seeks to clean up statutory language to ensure harassment is officially considered a form of discrimination, hold employers liable for the misconduct of all non-employees, and extend the time employees have to file a complaint with the New York Division of Human Rights. Such legal and procedural changes would certainly have an impact on the ability of employers to have greater access to remedies for harassment, and would undoubtedly increase the number of harassment lawsuits filed within New York.


Undoubtedly, employers operating within New York have been given reason to pause and examine their policies and procedures regarding workplace harassment in the last two years. The news that the State legislature seeks to expand protections for employees in this space even further should be the impetus for your organization to take a full-scale audit of its practices to ensure compliance with State and local laws is met. Failing to do so could leave your organization behind the curve as laws within the Empire state continue to expand.

Beyond the “Compliment Sandwich”


No one likes receiving negative feedback, which explains why more than two-thirds of managers dread delivering it to employees. According to one survey, 44% of managers find it stressful and difficult to give constructive feedback to employees while another 20% avoided it altogether. Further, as a manager, the feedback you give an employee is less credible when it’s given only occasionally. At the same time, it’s difficult for employees to work in a vacuum with no sense of how they’re performing. In fact, the majority of workers appreciate performance feedback, even when they perceive it as negative.


How can managers bridge the feedback gap without discouraging their employees? It likely won’t surprise you that the content of your criticism matters less than how you deliver it.


The Biggest Myth about Giving Constructive Feedback

For years, business pundits circulated a popular strategy for delivering performance feedback called the “compliment sandwich.” The idea was that the best way to deliver constructive feedback is to “sandwich” it between two pieces of positive feedback. However, this approach has downsides. First, employees have come to expect it. It can come off as inauthentic, causing the receiver to discount both praise and criticism.  Also, people are wired to focus on the positive. A two-to-one ratio of positive to negative feedback could lead the employee to dismiss the negative feedback entirely. At the same time, you don’t want to create an environment where employees only hear from you when they make mistakes.


How to Give Constructive Feedback Without Alienating Your Team

Done well, a mix of positive and constructive feedback is appropriate. The key is to be authentic and not follow a rigid formula.

  1. Make sure you’re regularly communicating with your team. If you’ve built strong relationships with your employees and they’re used to hearing both praise and constructive criticism from you, they’ll be less likely to get defensive when issues arise. You’ll also become more comfortable giving feedback and communicating effectively and empathetically.
  2. Be specific and offer solutions.  Instead of telling someone their writing “needs work,” point out specific issues and offer resources to help them improve.
  3. It’s essential to focus performance feedback on the behavior or situation, not the person.
  4. Follow up with employees and check on their progress. Following up shows you care about their growth and builds your credibility as a leader.


Most Everyone Wants to Improve

In a perfect world, everyone would do their jobs flawlessly, and your only job would be to shower them with praise. But would that really be a perfect world? The desire to learn and grow is a huge motivator for most people. Taking on challenges and learning from mistakes is part of being a good employee and a good manager. Learning to deliver honest feedback with empathy and respect will make you a more effective leader and make your employees trust you more, not less.

The Department of Justice’s Gift That Keeps on Giving

On April 30, the US Department of Justice updated its Evaluation of Corporate Compliance Programs, guidance that it provides to federal prosecutors for their use to assess an organization’s efforts to implement and maintain effective compliance management.

• What are the changes to these evaluation criteria?
• Further, what’s the significance of this guidance in the first place?
• Finally, why should businesses find value in this update?

To provide appropriate context to these questions, first let’s revisit the development of guidance for federal prosecutors and judges regarding evaluation of an organization’s compliance program.

The Federal Sentencing Guidelines 

In 1991, the US Sentencing Commission updated its own guidance to federal judges. The Commission is part of the federal judiciary and charged with providing guidelines to federal judges for sentencing organizations convicted of federal criminal misconduct.

Broadly, these Sentencing Guidelines are intended to help judges determine a sentence for an organization convicted of criminal conduct. (This is related to similar sentencing guidelines for individuals convicted of criminal conduct, which would apply to an organization’s officials and other employees.) These Guidelines provide the judge a framework for making this evaluation and, in doing so, creates consistency among judges across cases and federal districts.

The Guidelines chiefly take into account the significance of the criminal conduct, its duration, and the organization’s complicity in the conduct. But the Guidelines also offer a “carrot and stick” with respect to compliance: an organization’s sentencing can be reduced or exacerbated based on the degree to which the organization maintained an effective compliance program.

This section of the Guidelines, “Criteria for an Effective Compliance Program,” quickly became the de facto framework for how US businesses institute and manage legal compliance. The criteria included seven essential components of compliance management. These have been updated three times since 1991 and today address such criteria as the following:
• Commitment by leadership to ethics and compliance
• Assurance that senior staff are reviewed for a propensity to engage in misconduct
• Assessment of the organization’s compliance risks
• Standards and procedures
• Training and communications
• Compliance monitoring and auditing
• Systems for reporting suspected misconduct confidentially and anonymously
• Procedures to respond to identified misconduct

In the ethics and compliance profession, these criteria are often referenced as the US Sentencing Guidelines or Federal Sentencing Guidelines and have been very influential in similar frameworks developed by other areas of the federal government, including the Department of Health & Human Services’ Office of Inspector General and the Department of Justice.

DOJ Principles for Federal Prosecution

Starting in 1999, the Department of Justice began issuing a series of memoranda to provide federal prosecutors with guidance when pursuing cases against and charging organizations with criminal conduct (Holder, Thompson, McNulty, Filip memos). This guidance became the basis for today’s Principles for Federal Prosecution of Business Organizations. These Principles take their cue from the US Sentencing Guidelines with respect to criteria that prosecutors should consider as to whether an organization has made efforts to institute an effective compliance program. These Principles influence prosecutors:
• Whether to pursue a case against an organization
• Whether to charge an organization with civil or criminal conduct (and separate from whether to charge its employees with this conduct)
• What sentencing to recommend to the judge for organizations found guilty of criminal conduct

In 2015, the Department of Justice began working with Hui Chen, a former federal prosecutor and corporate compliance expert, to help the Department better determine how to aid prosecutors in evaluating organizations’ compliance efforts. This resulted in the first “Evaluation of Corporate Compliance Programs” in 2017. These criteria laid out the following structure:

Two prominent examples of where this framework demonstrated value to businesses follow:
• In 2012, The Department of Justice declined to prosecute Morgan Stanley when one of its executives bribed Asian officials in a real estate deal. Prosecutors signaled that the firm’s efforts to train and communicate compliance requirements to this executive demonstrated the firm’s commitment to compliance. (The executive was charged separately.)
• Earlier this year, the Department declined to charge Cognizant with criminal conduct over a bribery scheme by its CFO and chief compliance officer in securing a location site in India, largely because of the company’s compliance efforts and its quick reporting of a bribery scheme. (see blog)

DOJ Updated Evaluation Criteria

With the April 30 release of the DOJ’s updated Evaluation of Corporate Compliance Programs, the DOJ has evolved how it sees successful organizational compliance. This both sets challenges for and offers gifts to businesses.

The Challenge

As the ethics and compliance field matures, its frameworks will move in tandem, creating a more sophisticated and nuanced way of addressing how organizations should demonstrate responsible conduct. This evolution has moved from a reactive stance to one that is increasing proactive, with expectations that organizations not only maintain hard controls, such as segregation of duties and management sign-offs, but also soft controls, such as communications and management commitment. Companies that don’t want to run afoul of regulators’ focus will need to keep pace with these changes and develop their own compliance efforts in line with regulators’ expectations.

The Gift

The gift is twofold.

First, by developing criteria in the first place, the DOJ provides a helpful roadmap for what businesses should do to demonstrate compliance. They need not ‘read the tea leaves’ of prior criminal cases and sentencing memos to divine what the Department expects; through these criteria, the Department is speaking rather clearly about its intentions.

Second, indirectly, businesses now have an improved means to manage compliance risk. By using the Department’s (or the US Sentencing Commission’s) criteria for effective compliance, businesses benefit themselves by better managing risk: preventing it, detecting it early, taking quick steps to mitigate its damages, and then proactively improving processes to prevent its recurrence.

Part 2 of this series will address the changes in the updated DOJ Criteria versus its earlier criteria.

Part 3 will address the new Criteria’s implications for organizations’ compliance training and communications efforts.