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

We all gripe about the cost of airline travel – even though few consumers recognize the razor-thin profit margins that most carriers have to contend with.

But there’s nothing like a price fixing scandal to really fuel the fires of consumer outrage.

And that brings us to this week’s ethics scandal – the dark and dirty relationship between British Airways (BA) and Virgin.  These two giants are the target of an investigation into price fixing and collusion by the British Office of Fair Trade (OFT) and the U.S. Department of Justice (DOJ). 

The allegations claim that BA and Virgin (along with some additional carriers) colluded to fix fuel surcharge prices for passenger and air cargo fares on long-haul flights to and from the U.K.  British Air increased this surcharge seven times in two years, and the money it collected from fuel surcharges surpassed after-tax profit the past year. (See Timesonline.com article: British Airways investigated over price fixing cartel & Foxnews.com article: Airlines Face Probes Over Price-Fixing).

Just yesterday, the OFT announced that it had obtained an admission of collusion from BA.   The outcome?  Some very hefty fines.  BA will pay £121.5 million, or $246.5 million US - the largest penalty ever imposed by the British competition regulator. BA was also was fined $300 million by the U.S. DOJ after parallel trans-Atlantic investigations.  Needless to say, BA has been hit very hard in terms of financial punishment.

So what about Virgin?  After all, it does take two to collude.  The airline reportedly discussed price-fixing schemes with BA on at least 6 different occasions between June 2004 and January 2006. 

But here’s what may surprise you: while the criminal investigation is reportedly still underway, Virgin will not face fines. 

Why?  Virgin employees blew the whistle and reported the colluding activities first to their internal legal department, and then externally to the OFT.  Under the OFT’s leniency policy (which is designed to encourage reporting – a critical part of regulatory compliance), Virgin is protected from monetary penalties.

That’s a big payoff. 

Ethics Training Can Make the Difference

So in the event that a few rogue employees in your organization fall prey to unethical and illegal behavior (which is the case in the BA/Virgin scandal), how can you increase the odds of their co-workers and colleagues reporting the situation? 

Through periodic ethics and compliance training. 

Even if you have a robust and utterly thorough Code of Conduct – your Code is not enough.  (Enron had a fantastic Code.)  The Code needs to be brought to life for your workforce – actually followed and enforced.  Interactive and compelling educational programs are critical to making that happen.

Relevant to the issues in the BA/Virgin case, most employees don’t even have a basic understanding of price-fixing and anti-competition laws. While few people need truly in-depth training on the subject, all your employees will benefit from an awareness-level introduction to this increasingly important area of law. Basic coverage of the topic and clear guidance on how to spot and report policy violations can make a big difference.

Proper ethics and compliance training also needs to focus on the importance of reporting, as well as the rule against retaliation.  Whistleblowers need to know: (1) how to report, and (2) that they will be protected against discrimination and mistreatment for having come forward. 

Ethics Training Has Real ROI

The British Office of Fair Trade is not alone in providing a financial incentive for proactive compliance efforts and self reporting.  In the U.S., preventative action and responsible corporate governance can make all the difference when you’re under investigation.  Under the U.S. Federal Sentencing Guidelines (FSGs), if an organization has taken proactive steps to prevent unethical and illegal conduct through an effective ethics and compliance program (which includes periodic, formalized training), the employer may be able to mitigate potential fines and punishment for criminal violations by up to 95%. (For more details, see ELT’s summary of the FSGs.)

Review Your Ethics Training Programs

For those of you not providing periodic ethics training, this latest newspaper headline is yet another reminder of why you need to start.  Just scroll up, and check out those penalties again.

For those of you who have embraced periodic, mandatory ethics training, consider whether you need to address the basics of price fixing and other forms of anti-competitive behavior.  While for some organizations, this is simply not a risk area, for many it is.  With ELT’s Ethics & Code of Conduct online training program, I see the majority of our clients select antitrust content as part of their “core” course.

I have a Virgin flight coming up in a just few weeks.  (They just announced service from SFO.)  I’ll be looking closely at the ticket cost, and wondering if a whistleblower is handing me my blanket and pillow …

In three short days, AB 1825’s sexual harassment training regulations are effective.  That means any training done after August 17, whether live or online, must comply not only with the text of AB 1825, but also it’s detailed and demanding regulations.
 
The regulations place a particularly high onus on e-learning.  The most hotly debated requirement?  That employers be able to demonstrate their sexual harassment training programs take supervisors “no less than two hours to complete.”  
 
In other words, you need to police the time.
 
You can imagine why this provision garnered some very strong reactions from both employers and the training community.  E-learning, at the end of the day, is supposed to be self-paced. How can a program maintain that quality, and yet also police a minimum training duration?
 
The “2 hours means 2 hours” requirement (to quote public testimony of AB 1825’s author, Sarah Reyes) is the single most common reason many harassment e-learning programs are out of compliance.  I have viewed literally hundreds of programs, both built internally by employers, and purchased externally from vendors, that simply cannot meet the controversial timing rule.
 
So, let’s get down to practical solutions.  If you’re building a sexual harassment training program, or purchasing one from a training provider, what do you need to look for?  It really boils down to 4 simple components:

1. Content Rich.  Make sure the program has enough robust content and interactive exercises, so that  even without a timing mechanism, the average learner would need 2 hours to complete it.  A timer mechanism should be a safety net for a program that is already designed to be 2 hours in length.
   
   
2. Set the Tone.  Your harassment training course needs to set a clear expectation with learners, right from the beginning, that they are going to be required to spend two hours in the program.  Highlighting the fact that this is a statutory requirement can also assist with the “palatability” of a 2-hour course.  (Remember, the AB 1825 regs expressly provide that training does not need to be completed in 2 consecutive hours – so don’t forget to let learners know they can still bookmark the program and take it in segments.)
   
   
3. Require Interactivity. The best way to avoid having learners “cheat” the program, is to fill it to the brim with well designed and engaging interactive exercises.  A good sexual harassment training program will punish learners for random clicking, and ensure that the vast majority of your employees are actually interacting with and digesting the material.  There’s nothing like real learning and knowledge application to make those minutes fly by.
   
   
4. Use the Right Timer.  Here’s the most technical part.  Your e-learning program needs a timing mechanism that:
   
1. Doesn’t let employees finish in less than 2 hours.  If learners reach the end of the program in less than 2 hours, they should be required to return to the portions of the program they clearly raced through.
   
   
2. Warns employees periodically when they are going too fast.
   
   
3. Does not artificially slow employees down.  Any timer that requires a minimum amount of time per page, no matter how short, is poorly designed.  This will make fast readers think there is a technical error.  Your e-learning program should still be 100% self paced.
   
   
4. Can work both with sound, and without.
   
   
5. Counts active course time, not browser window time.  In other words, the learner should only get credit for time spent interacting with the course.  You can’t allow a learner to simply launch the course window, and then get credit for time spent on a phone call or checking e-mail.
   
   
6. Is able to function properly with a bookmarking feature.  When a learner logs out of the course, and then logs back in, the program needs to keep accurate count of previous minutes spent in the course.  (This can be particularly challenging if you are integrating an outside vendor’s program onto your own Learning Management System.)
   

So. Can you see now why this portion of the regs was so controversial?  While “2 hours means 2 hours” is a simple concept in live training, it gets a little more “nuanced” and sticky when it comes to e-learning.
 
Caution: There are good timers, and there are bad timers.  A timer, for example, that “counts down” each course page, or artificially stretches out the time, is going to do you no favors.  In fact, it will actually create risk, sending the message to your employees (and to juries and regulators) that you take a “check the box” approach to compliance – that you don’t actually care about good faith harassment and discrimination prevention.
 
To learn how a timer actually works inside a sexual harassment training course, you can check out ELT’s demo. SHRM also featured an article recently on the topic.
 
These regs took forever to finalize, but there’s no hiding from them now.  2 hours means 2 hours.  
 
Can you prove it?

It’s been exactly one week since the AB 1825 sexual harassment training regs became effective.  Any training done after August 17, 2007, must align with strict and detailed requirements.  
 
I know many of you are taking a careful look at your sexual harassment training programs and asking tough questions about compliance.
 
Last week, I blogged about the 2 hour timing rule.  This week, I want to help readers tackle one of the required forms of interactivity for online sexual harassment training programs - that supervisors be able to submit questions during e-learning, and have those questions responded to within 48 business hours.
 
Inserting a link into an online program that allows your learners to submit questions is easy.  Figuring out how to respond to those questions is where the challenges arise.  Many employers fear they may not be able to answer questions in time - either because they have too many questions, or too few responders.  
 
Not surprisingly, this creates a lucrative business opportunity for the training industry.  Several e-learning providers are offering to answer questions for you - for a price.    
 
But is outsourcing the response to potentially critical questions the answer?  In my opinion, the answer for the overwhelming number of employers is “no.”  
 
The costs and risks are just too high.  
 
Let’s Start with the Practical Costs
 
Many of the training providers offering to answer employee questions brag that their sexual harassment training programs are used by several hundred thousand, or even several million learners.  That’s a lot of employees with potential questions.   
 
The problem is that these vendors simply can’t afford to hire a phalanx of qualified employment lawyers or HR experts to field the calls.  You will be shocked if you ask potential outsource vendors two simple questions.  How many people on your staff are dedicated to responding to questions?  What are their qualifications?   
 
Another practical problem is the quality of the “response.”  Third parties sitting on a phone bank cannot possibly understand the nuances of your organization’s culture, sexual harassment policies or past practices.  A quick response is no help if it doesn’t make sense in your environment – and may actually frustrate employees who get generic responses.  
 
Anyone who has called a phone help line and gets an unqualified “customer service specialist” can empathize.
 
Finally, there’s the cost issue.  Most vendors charge on a “per question” basis.  You pay for every question - whether it raises a legitimate sexual harassment issue, or involves finding the “next” button at the bottom of the course page.  If you have any kind of significant employee population, those costs could really add up.
 
And Now the Legal Risks
 
The legal implications of outsourcing responses to sexual harassment training questions can be huge.  Clients often fail to understand that communications between your vendor and employees are not privileged, and can be used in court against you.  
 
The lack of privilege is a giant potential landmine.  Remember that the vendors talking to your employees will not have a history with your organization, or your sexual harassment policies. How comfortable will you be if plaintiff’s counsel projects an email communication between your vendor and one of your employees onto a court room wall?
 
The other legal red flag involves complaints.  Questions that set off your duty to investigate sexual harassment claims are not always labeled as a “complaint.”  They often take the form of inquiries or statements that should “sound the alarm” and kick start a sexual harassment investigation.  Failing to respond quickly to sexual harassment complaints is the number one reason that employers are found liable for harassment, and pay out big damage awards.  
 
Are you really comfortable letting a third party make this critical judgment call?  
 
The Biggest Problem of All
 
Even with the serious practical and legal considerations, I think the biggest problem with outsourcing responses to learner questions is that it takes you out of the picture.  
 
With questions going invisibly to third parties, you don’t see the ebb and flow of the harassment issues that employees are facing.  You don’t get to police the quality of the response, and have no way to ensure that employees understand and properly apply the guidance they receive.  
 
Most importantly, outsourced solutions mean that your organization doesn’t benefit from its best defense to a potential sexual harassment claim - your experience and judgment addressing and defusing potential problems.  With outsourced solutions, it’s all in someone else’s hands - and you hope for the best.
 
So Who Takes the Call?
 
If outsourced solutions are not the answer, what is?  I think the best answer is to choose the right sexual harassment training program in the first place.   
 
A well designed sexual harassment training course will answer most employee questions up front, in real time – and at no additional cost.  

The questions that then filter internally to your organization are the ones you should and need to handle yourself.  
 
To minimize the volume of questions that are routed internally, and to maximize risk mitigation, choose a program that:
 

1. Provides a clear orientation on how to use the sexual harassment training course.  This eliminates a whole category of questions that may start your response time ticking.
   
   
2. Clearly explains basic principles prohibiting sexual harassment in the workplace with realistic scenarios and interactive exercises.
    
   
3. Provides learners with easy access to supplementary information resources - like an interactive content / topic guide.
    
4. Includes a searchable FAQ tool that provides immediate answers to the most common questions that arise in sexual harassment training.
   

 
At ELT, we’ve taken this 4-step approach to help employers filter out the large majority of questions that are asked during sexual harassment training.  Our interactive Q&A Solution provides a database of hundreds of questions and answers based on our years of experience specializing in harassment prevention training.  AB 1825’s Q&A interactivity requirement is easily met with no additional cost, and without introducing unnecessary risk to the organization.
   
Whatever solution you chose (or build yourself), remember that it’s not just about racing to provide some response - any response - within 48 business hours. It’s really about getting your supervisors good information on harassment prevention and making sure that serious issues get the attention they deserve.   
 
It’s hard to believe, but the next AB 1825 deadline for most employers is just 4 months away.  While you tackle the challenges of getting training set up and deployed, be smart about streamlining the required Q&A component.