What training must employers provide to employees?

While no federal training regulation applies to all employers, certain laws and agency regulations may apply to specific industries or employers. For example, there are training requirements for some public-sector employees, occupations considered safety-sensitive (OSHA), or positions involving the safety of the public (FAA, DOT). There are also federal laws that require training when necessary; these regulations include the Health Insurance Portability and Accountability Act (HIPAA), which requires training "as necessary and appropriate for the members of the workforce to carry out their functions within the covered entity," and the Federal Acquisition Regulations (FAR), which require federal contractors to train "periodically" on ethics awareness and compliance.

Some state laws require employers to train on the general topic of sexual harassment, whereas others may require training for certain occupations or employees engaging in specific activities, such as Maine's law requiring video display terminal training. There may also be individual and employer obligations to ensure the training of certain licensed occupations, such as Texas' requirement that licensed child care facilities provide various clock hours of training. These laws can be difficult to uncover and necessitate consulting with legal counsel to ensure proper compliance.

Establishing an affirmative defense. This concept can apply to any number of employment-related laws but may be best known to HR in terms of nondiscrimination training under Title VII. While federal law does not currently require such training for private-sector employees, there are directives from both the EEOC and the U.S. Supreme Court stating the necessity and importance of such training. For example, in the well-known Faragher and Ellerth sexual harassment cases, the Court opined that where no negative employment action exists, employers can establish an affirmative defense to liability or damages if they can show that they (a) "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (b) "that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Training employees would, therefore, be a necessary component to support such a defense.

Establishing effective compliance programs. This requirement appears in various laws. Within them, training often is not mandated per se; however, it is suggested as part of an effective compliance or awareness program. Some examples include business ethics training obligations such as those under the Sarbanes-Oxley Act, and certain requirements pertaining to government contractors, such as the Drug-Free Workplace Act, as well as state contractor training requirements.

In all cases, employers should assess their own training obligations with guidance from legal counsel. What employment-related training is required versus what is precautionary may not always be clear, but if employers approach the analysis by asking, "What training should we provide to create a fair, safe, and respectful environment for all employees?" it will help frame the answer.