Sexual Harassment Training : ELT, Inc. : AB 1825, Employment Law, Online Harassment, Compliance, and Harassment Training

Any employer hit with a sexual harassment claim quickly learns how difficult – and expensive -- it can be to gather, review and eventually produce the kinds of documents plaintiffs’ counsel demand. A recent change to the Federal Rules of Civil Procedure just made that job harder. 

The Rules of Civil Procedure govern how litigation is handled – including how and when plaintiffs can look at your internal documents and communications.  Under the new rules (effective December 1, 2006), parties must meet and exchange all documents and information potentially relevant to the dispute, even before a discovery request is made. This must occur 90 days after the appearance of a defendant, or 120 days after the complaint has been served on a defendant.  The required information includes all documents “electronically stored” that a party “may use to support its claims or defenses.”  Among other things, that means e-mail.

These new requirements may sound innocuous -- but think about the practical impact on your organization and your office workflow: 

• Plaintiffs do not even need to demand electronically stored documents like e-mails.  You are obligated to do the work necessary to find the documents and then tell the plaintiff all about them.

• The timeframe is incredibly short.  Imagine having as little as 90 days to cull through every e-mail that has been sent or received over the last two or three years!  The time and expense alone can create great pressure to settle even unmeritorious claims. 

• Plaintiffs’ counsel has a field day.  Employees commonly make embarrassing statements in e-mail and often use a single e-mail to discuss multiple topics.  All this means that plaintiffs’ counsel gets a wide window into your organization and an unmatched chance to look for a way to expand claims against you.

Not surprisingly, a cottage industry has sprung up to help companies respond to these kinds of discovery obligations.  But before you find yourself the subject of a lawsuit, there is something you can do to mitigate your losses – train employees about appropriate use of electronic resources in the workplace, most importantly, e-mail and the Internet.

It always amazes me how employees get extensive computer access within hours of showing up for their first day of work, but are rarely trained on company policies and rules.  In today’s legal environment, a loose e-mail can cost your organization more than you care to imagine.  Yet, most organizations make no efforts to educate employees and managers on the rules of the “virtual road.” 

As a practical matter, training on e-mail and Internet use can also be an important part of your effort to manage harassment and discrimination risks.  Some of the most common e-mail gaffes end up as exhibits in lawsuits because they involve inappropriate jokes, personal references and “short hand” that can be seen as racially or sexually insensitive.  Studies consistently show that jurors are more likely to believe that these kinds of written comments reflect the “real story” – and believe that explanations offered at trial are self-serving.  

And turning to another hot topic these days, training on the use of electronic resources covers two additional critical issues:  confidentiality and workplace privacy.  Hewlett-Packard recently learned the importance of privacy training – and on a national stage.  The company just settled a criminal complaint alleging that HP used “false and fraudulent” pretenses and violated California’s identity theft statute. 

The final cost?   A $14.5 million cash settlement, the resignation of key board members, and nearly irreparable harm to the company’s reputation as corporate leader.  Even cursory training might have made the difference between complying with appropriate legal standards and the debacle that unfolded as the country looked on.

So while the compliance training world is focused on sexual harassment training (especially with the AB 1825 retrain year almost upon us), pause to consider how you are addressing education about e-mail and Internet use, as well as basic workplace privacy protections.  A good harassment training course can seamlessly weave these topics into the program, and at least provide employees with “awareness level” knowledge.  If you have the time and resources, invest in a separate electronic resources / privacy training program.  At ELT, we call this “Cyber Policy” training.  Whatever you may choose to call it, it’s a small investment that can truly pay big dividends.

A recent survey by the Ethics and Compliance Officer Association confirms that senior management in America’s largest organizations “get it” when it comes to compliance, and that they are often the biggest drivers in compliance programs, such as enterprise-wide ethics training.

The survey focused on the anti-corruption programs at 165 multinational companies and looked at what the responding companies are doing – and why.

According to the survey sponsors, the anticorruption programs examined were not simply a reaction to the threat of lawsuits, or the hit to brand equity that usually results from a major compliance gaffe. Instead, responding companies reported that the programs were part of “a larger effort to build a culture of compliance within the company, one that is rooted …in the company’s system of values[.]”

Consistent with this conclusion, companies reported that their senior leaders were the single most influential driver for their programs. Programs were also much more widespread than in 2000, when an earlier survey was taken.

In many ways, the report simply confirms what I’ve seen in the field. The conclusion that may be more surprising to some of you, is that senior management does in fact care about compliance and ethics, and will support the steps necessary to create a culture of compliance.

It’s an important lesson for HR or legal professionals who may be tasked with putting together a company’s first compliance training program. These folks often set out to do the absolute minimum necessary – presumably out of a fear that they will be criticized for spending too much money, or for forcing people to take too much time away from work. The ECOA survey strongly suggests that this approach is short-sighted, and a big mistake. Compliance training programs have senior management’s support, and are recognized for the tangible return on investment they can bring to an organization.

So, the lesson is, an HR or legal professional looking to buy an ethics training program should focus on choosing a high quality solution that can best support a robust compliance program.

The ECOA survey also strongly demonstrates that the bar is being raised when it comes to the legal ramifications of your compliance programs.

The survey’s authors concluded that the programs they reviewed had become significantly more detailed and sophisticated in the last six years. With judges and regulators becoming more savvy about compliance issues, “check the box” solutions no longer maximize legal protections, nor are they looked upon favorably.

Imagine the look on the face of a judge when you argue that you are truly committed to compliance – even though you provided rudimentary ethics training, or even worse, no training at all.

At the end of the day, the survey simply confirms what common sense tells us. If you’re going to invest the time and effort necessary to create a compliance training program, choose training that you feel will truly reach your learners, and maximize your legal protections. It’s a strategy that gives you the best chance of pleasing senior management -- and the judge.