Obama is dressed like Osama bin Laden. And his wife is dressed in military gear with an exaggerated Afro – toting an assault rifle to boot. The two are congratulating each other with a “fist bump” in the Oval Office. And let’s not forget the American flag burning in the fireplace, or the portrait of Osama himself hanging on the wall.

• Stereotypes and assumptions based on protected categories have no place at work.

• Managers cannot make decisions based on race, religion, or national origin.

• Patriotism (when linked to a protected category) is not an appropriate criteria for making important employment decisions.

• Harassing people for being "unpatriotic" is never appropriate – even if it’s not linked to a protected category, it's bound to be toxic.

• There's no such thing as "absolute free speech" at work.  Employers can and will limit volatile conversations about race, religion and politics to prevent potential environmental harassment.

While we’ve seen this issue percolating for years (check out Workplace Bullying, which has an extensive amount of information and resources on the subject), this is the first time I’ve seen bullying tied to a survey on ethics.

While we’ve seen this issue percolating for years (check out Workplace Bullying, which has an extensive amount of information and resources on the subject), this is the first time I’ve seen bullying tied to a survey on ethics.

And workplace bullying is about more than just soft costs (like low productivity and employee engagement) – it’s now becoming a real liability issue as well, with the case law building.  For example, this past April, the Indiana Supreme Court upheld a $325,000 verdict against a cardiovascular surgeon accused of being a workplace bully.  The case is considered groundbreaking because it categorically supports the contention that there is a legal basis for workplace bullying claims.  And then there’s the 2005 9th Circuit decision that holds that bullying behavior can have a more severe impact on women than it does on men, because women are likely to be more intimidated due to factors such as size and power inequities. (See EEOC v. National Education Association, 442 F.3d 840, 846-47 (9th Cir. 2005).)   So workplace bullying can also support gender discrimination claims.

All of this should be a reminder that your workplace policies need to address the issue of bullying head on – and it should be a clear component of both harassment prevention and ethics training programs.

The SHRM / ERC study’s list of most commonly observed workplace misconduct also serves as a reminder that the bulk of employers’ ethics concerns are really “bread-and-butter” HR / employment law issues:

• E-mail and/or Internet abuse.

• Misreporting actual time or hours worked.  (Is this any wonder given the shocking surge in wage and hour litigation over the past few years?)

• Behavior that places an employee’s interest over the organization’s interests.

• Employees calling in sick when they are not.
  

It’s been more than six years since SOX became law, and almost as long since the Federal Sentencing Guidelines were amended to require Code of Conduct adoption, as well as companion ethics and compliance training programs.  Many employers are on their second, if not third round of Code and ethics training.  Now’s the time to make sure that your training is fresh and updated. Evaluate the topics you’ve already covered, and identify the gaps you want to fill during your next retraining cycle.  And by all means, consider topics that you may not think of as “classic” ethics issues.  Just look at the key concerns identified by the SHRM / ERC study.  While your training program may dedicate significant time to issues like preventing bribes, financial irregularities and potential antitrust violations, these are not the most common ethical missteps taking place at your organization.

It’s all about finding the right balance.

GINA is designed to balance the benefits of obtaining and using genetic information for things like research and managing personal health and wellness, with the harm that results when employers and health insurance companies misuse the sensitive data.

• A ban against discrimination in hiring, firing, compensation and in the terms, conditions, and privileges of employment based on genetic information.
  
  
• A ban against segregating employees based on genetic information that would deprive them of employment opportunities or their status.
  
  
• A ban on requesting, requiring or purchasing employees’ genetic information except under specific circumstances.
  
  
• Strict confidentiality protections for genetic information, which can be revealed only when permitted by statute (and there are a lot of restrictions here.)
  
  

But I Don’t Have Access to that Kind of Information … or Do I?
 
Not sure if the law applies to you or not?  Do you really have access to this kind of sensitive information?   Don’t dismiss GINA so fast – it’s still worth a good review of your HR and employment law practices:

• A study by the American Management Association revealed that 2/3 of major U.S. employers requires medical examinations for some new hires. And with recent advances in medical technology, it’s possible that genetic information may be revealed as part of that process.  
   
• Genetic information may be revealed during the FMLA process, fitness for duty examinations, or any other process where you obtain medical information from a current employee.
  
  
• Managers may have access to genetic information, but get it in a more casual way – like when an employee reveals that she has a family history of breast cancer or has the gene that makes it more likely that she will develop breast cancer.
  
  

What Should I be Doing Now?
 
To start with, the law doesn’t take effect for another 17 months or so.  That means you have time to get your ducks in a row and make sure that you’re in compliance. You also need to make sure that your managers are educated about the basics of GINA.
 
In short, employers should consider doing at least two things.
 
First, review your current policies and practices.  Hopefully, you’ve already taken extensive measures to limit access to medical information (and even genetic information) which may be disclosed during the recruitment and employment process.  Many laws, such as the Americans with Disabilities Act and similar state laws, already obligate employers to take great care protecting this type of information.  But now is a good time to audit your practices and get your house in order. Also be sure to update your discrimination policy – it should now expressly prohibit genetic discrimination.
 
Second, train your managers about genetic discrimination. My guess is that most of your managers are not well informed about this topic. They may not think twice about taking action based on genetic information. Maybe they’re afraid of skyrocketing health insurance costs if they hire some with a predisposition to a serious illness.  Or maybe they just don’t want to take a risk on someone who may need a lot of leave down the road. 
 
It’s your job to make sure that managers are trained on GINA and understand the basic rules.  But this doesn’t have to be a daunting production.  You don’t need extensive training that’s dedicated to the topic of genetic discrimination. We’re really just talking about awareness and “issue-spotting” here. Roll this training in with other training on harassment and discrimination prevention, which should be covering a variety of topics in any event (not just sex and race).
 
Sounds simple…and it is…so make it happen. 

So California and Massachusetts are leading the way on recognizing same-sex marriage. And where they go, others will follow – notably New York state, which just last week pronounced that it will recognize same-sex marriages performed in jurisdictions such as California and Massachusetts. (New York To Back Same-Sex Unions From Elsewhere).

So California and Massachusetts are leading the way on recognizing same-sex marriage.  And where they go, others will follow – notably New York state, which just last week pronounced that it will recognize same-sex marriages performed in jurisdictions such as California and Massachusetts. (New York To Back Same-Sex Unions From Elsewhere).

No doubt this decision raises a bunch of interesting legal questions, and will mean a lot of work for employers and government agencies that need to get systems in place to accommodate the change — including everything from benefits administration to employment policies. If you want a great summary of the most important impacts, Littler Mendelson offers a very helpful piece: California Supreme Court Opens the Door on Same-Sex Marriage.

But What About the Impact to the Working Environment?

What most articles you’ll read on this subject don’t cover, is the impact to the work environment. While employees don’t stand around the water cooler talking about the latest and greatest case developments — unless you work in a law firm — employees do take an interest when the developments are as big (and as personal) as this one.

Same-sex marriage tends to be a very polarizing issue – you either support it strongly, or you oppose it vehemently. And there really isn’t a middle ground where reasonable minds can agree to disagree.  That’s because people’s personal views are so often colored and shaped by religious beliefs and strong personal convictions.  In other words, stuff that people take pretty darn seriously.  And because it’s such a heated subject, it’s very difficult (if nearly impossible) to have a civilized discussion on the topic. And this can lead to some very uncomfortable and offensive situations in the workplace.

Employee discussions can lead to serious workplace tensions and productivity issues – and frequently end up as harassment complaints. And if it’s a supervisor who makes offensive statements, not only are you dealing with potential harassment claims, but you may also see the statements used against you in subsequent discrimination litigation.

Plan Ahead – Let Employees Know What’s Expected of Them

Hot political and legal developments will continue indefinitely — that’s a certainty. And unless you’ve told your employees that discussions about politics, religion, morality, and other personal beliefs are completely off limits (an unrealistic and unworkable standard), people are going to, well…chat.

Employers need to take a strong and clear position about the appropriateness of these kinds of discussions in the workplace. There is a delicate balance to strike between allowing reasonable employee conversations on the one hand, and preventing harassment and discrimination on the other.

Don’t assume that employees know what’s off limits.  In fact, you will often find yourself contending with the misguided convictions of employees who believe that the First Amendment allows them to say anything they like at work.  You may also be dealing with folks who believe that religious discrimination laws protect any kind of behavior associated with deeply held moral beliefs – including brazen statements that gay marriage is a sin, or even proselytizing in the workplace.

There’s a recent line of case law addressing the precarious knife’s edge that employers must navigate between sexual orientation harassment on the one hand, and religious discrimination laws on the other.  I would highly recommend at least reading the head note summaries of the following:

• Ng v. Jacobs Engineering Group, 2006 Cal. App. Unpubl. LEXIS 9142 (Cal. Ct. App. Oct. 2006)
• Piggee v. Carl Sandburg College, 464 F.3d 667 (7th Cir. 2006)
• Peterson v. Hewlett-Packard Co., 358 F.3d 599, 601 (9th Cir. 2004)
• Bodett v. CoxCom, 366 F.3d 736 (9th Cir. 2004)
• Buonanno v. AT&T Broadband, 313 F. Supp. 2d 1069 (D. Colo. 2004).

It All Comes Down to Communication – Which Means Effective Training

At the end of the day, your employees will not be materially impacted by the cases you study – or even the policies you write to accommodate these recent changes in the law.  Only well executed, periodic training programs will get people’s attention, and send the message home.

That’s why you need to ensure that your harassment training program has been updated to include the following:

• Sexual orientation and gender identity as “protected categories.”
• Scenarios, examples and Q&A that address not just the prohibition against sexual orientation and gender identity discrimination, but also the issues associated with same-sex marriage, as well as the application of employee benefits to same-sex couples.
• The rules protecting employee privacy, including how questions about an employee’s sexual preferences and lifestyle choices are inappropriate.
• The organization’s commitment to an environment that is inclusive, and values the diversity of its employees.

And rest assured, just because you’re not operating in California or Massachusetts doesn’t mean that the gay marriage issue won’t impact your workplace.  It’s only a matter of time before the U.S. catches up with the rest of the industrialized world. (A highly opinionated statement by this Canadian-born blogger, but happily, I get to do that in this forum…)

And with the likely change of administration in 2009, these reforms are more imminent than ever.  It’s time for your policies and training programs to reflect the realities of the world’s demographics.

This April, the Indiana Supreme Court decided what appears to be the first workplace bullying litigation of its kind. The Court reinstated a verdict of $325,000 in favor of an employee who was assaulted by a surgeon during a verbal altercation at the hospital. While the surgeon attempted to argue that the damages were excessive and that the ultimate finding of assault was based on insufficient evidence, the high court rejected these arguments, and also allowed into evidence the surgeon’s prior aggressive acts in order to prove that he was a workplace bully. As importantly, the supreme court supported the trial court’s refusal to give jury instructions that there was no basis in law for a “workplace bullying” claim. (See Raess v Doescher, IndSupCt, April 8, 2008).

The Raess case is a reminder to employers to get a handle on their workplace bullies. Just because behavior does not appear to involve serious physical harm, or to rise to the level of unlawful harassment and discrimination, does not mean that a workplace bully is not causing irreparable damage to the workplace, as well as creating serious legal liability.

This April, the Indiana Supreme Court decided what appears to be the first workplace bullying litigation of its kind.  The Court reinstated a verdict of $325,000 in favor of an employee who was assaulted by a surgeon during a verbal altercation at the hospital.  While the surgeon attempted to argue that the damages were excessive and that the ultimate finding of assault was based on insufficient evidence, the high court rejected these arguments, and also allowed into evidence the surgeon’s prior aggressive acts in order to prove that he was a workplace bully.  As importantly, the supreme court supported the trial court’s refusal to give jury instructions that there was no basis in law for a “workplace bullying” claim.  (See Raess v Doescher, IndSupCt, April 8, 2008).

The Raess case is a reminder to employers to get a handle on their workplace bullies.  Just because behavior does not appear to involve serious physical harm, or to rise to the level of unlawful harassment and discrimination, does not mean that a workplace bully is not causing irreparable damage to the workplace, as well as creating serious legal liability.

Bullies are Rampant

Unfortunately, our workplaces seem to be full of unpleasant and abusive people who don’t discriminate among their victims.  Don’t believe it? Consider this. About 45% of American workers have been the target of workplace abuse. Another study by the Workplace Bullying Institute concluded that:

• 80% of the women and 20% of the men surveyed had been bullied in the workplace
• 71% of bullies are bosses
• 64% of Americans believe that victims of bullying should have legal recourse

When Bullying Creates Harassment Liability

We should also remember that bullying behavior, applied equally to both men and women, can still result in a potential gender discrimination claim – at least in California.   How is this possible?  Well according to a 2005 decision out of the 9th Circuit, the bullying behavior can have a more severe impact on women who are likely to be more physically intimidated due to factors such as size and power inequities.  [See EEOC v. National Education Association, 442 F.3d 840, 846-47 (9th Cir. 2005)].  This 2005 case is another reminder that classic “jerk” behavior may create more legal risk than employers ever imagined.

Take Control of Your Bullies!

Because bullying damages your business and can easily lead to harassment and workplace violence claims, it’s important to address the problem head on. Some simple things you can do:

• Set conduct and behavior expectations.  If your culture contributes to bullying behavior, think about making some changes – even small ones can make a big difference.  (A bank I used to work with had a hard and fast rule that employees should not be “called out” or disciplined in group meetings.) 
• Senior management needs to lead by example.  A well known, high-powered bully needs to be addressed head on. 
• In my experience, comp and rewards drive 99% of behavior in most workplaces.  Don’t reward bullies – in fact, make it cost to be a bully.  (Several clients I work with tie a large component of a manager’s annual bonus to employee feedback from 360 reviews.) 

Training is Key

If you really want to get your message out, training is critical. You don’t need to go overboard on this one though – and you certainly don’t need a stand-alone anti-bullying course.

What you do need is a harassment course that thoughtfully integrates the broader concepts of workplace respect and dignity. While employees need to understand the basics of unlawful harassment prevention, not all undesirable and costly behavior is illegal.  In fact most of that spite and venom falls into the ubiquitous and category of plain “unpleasant.”

And we all know why employees sue.  It’s not because of their in-depth knowledge of case law, statutes or employment law treatises.  Employees sue because they feel wronged and mistreated.  Behind every successful plaintiff, there’s invariably a jerk who went unchecked, and untrained.

Several studies have found that men are more tolerant of discrimination than women, but a study released this month goes one step further to find that both genders tend to more readily accept prejudice against some immigrants and Arab-Americans.

The study also found that:

• Men and women differed the least in regard to discriminating against Arab-American airplane passengers, and most in regard to African-American motorists.
• The highest percentage of respondents accepted discrimination against "poorly educated immigrants," followed second by acceptance of discrimination against Arab-Americans.
• Respondents were least likely to accept discrimination against the genetically disadvantaged, or people who are genetically at high risk for diseases that require expensive medical care.
• Men were 19.6 percent more likely than women to tolerate discrimination against obese people and 17.4 percent more likely to accept racial profiling.

The results, just released this month, come from surveys of more than 3,300 people conducted in 2002 by University of Southern California researchers.

It appears as though implicit bias (often subconscious) is driving the bulk of the problem. Edward J. McCaffery, a USC law professor, who co-authored the study, concludes that an individual who sees nothing wrong with certain kinds of biases will often find others objectionable.

Several studies have found that men are more tolerant of discrimination than women, but a study released this month goes one step further to find that both genders tend to more readily accept prejudice against some immigrants and Arab-Americans. 

The study also found that:

• Men and women differed the least in regard to discriminating against Arab-American airplane passengers, and most in regard to African-American motorists.
• The highest percentage of respondents accepted discrimination against "poorly educated immigrants," followed second by acceptance of discrimination against Arab-Americans.
• Respondents were least likely to accept discrimination against the genetically disadvantaged, or people who are genetically at high risk for diseases that require expensive medical care.
• Men were 19.6 percent more likely than women to tolerate discrimination against obese people and 17.4 percent more likely to accept racial profiling.

The results, just released this month, come from surveys of more than 3,300 people conducted in 2002 by University of Southern California researchers.

It appears as though implicit bias (often subconscious) is driving the bulk of the problem.  Edward J. McCaffery, a USC law professor, who co-authored the study, concludes that an individual who sees nothing wrong with certain kinds of biases will often find others objectionable.

"Many political struggles of our time, in the United States as elsewhere, amount to clashes over the appropriate boundary between permissible and impermissible forms of discrimination," McCaffery said. "As a matter of practice, people morally opposed to discriminatory policies based on reviled forms of prejudice do not insist on equal treatment for everyone, in every context."

So if you’re an employer trying to create a safe and welcoming workplace for all your employees (or at a minimum trying to avoid crippling discrimination lawsuits), what can you do to address this inevitable (and ugly) aspect of human behavior?

Education is the heart of the solution.  Discrimination and harassment prevention training, including sexual harassment training, is an absolute must for all of your employees. How will they know what you expect of them, and what behavior is inappropriate, if you don’t tell them – especially if they don’t even realize they hold certain biases?  And while the most deeply held prejudices won’t be changed by even the best training programs, you can at least send a clear message that certain behaviors and opinions will not be tolerated in the workplace, and that there will be serious consequences for violating the anti-discrimination policy.

As importantly, several laws and regulatory requirements require you to provide discrimination and harassment training.  So beyond doing the right thing, and creating a culture of inclusion, basic compliance standards require you to take action.

Finally, make sure education happens at all levels of the organization, including senior executives. Don’t forget your senior execs – they need compliance training too.  Just because someone holds a high-level position in an organization doesn’t mean that s/he doesn’t have prejudices and won’t engage in discriminatory behavior.  Many of the most notorious and costly lawsuits are the result of senior execs misbehaving.

Implicit bias is both fascinating and insidious.  We all have biases, whether we choose to admit it or not.

Some of the most ground breaking work in this area has been done by “Project Implicit” – a collaborative effort among researchers at Harvard University, the University of Virginia and the University of Washington.  Studies conducted by Project Implicit examine thoughts and feelings that exist either outside of conscious awareness or outside of conscious control. The primary goals of Project Implicit are to provide a safe, secure, and well-designed virtual environment to investigate psychological issues and, at the same time, provide visitors and participants with an experience that is both educational and engaging.  Interested in seeing what your own implicit biases may be?  Check out the virtual tests for an eye-opening experience.

If your organization is tightening its belt or considering how to weather this period, it’s critical to steer senior leaders away from making one big mistake – cutting back on essential employment law training. Employment law training budgets should never be considered “discretionary spending,” especially in a downturn.

Employment law claims don’t dwindle along with a poor economy – they actually increase. This isn’t just speculative theory – it’s supported by a formal analysis of case filings.

If your organization is tightening its belt or considering how to weather this period, it’s critical to steer senior leaders away from making one big mistake – cutting back on essential employment law training.  Employment law training budgets should never be considered “discretionary spending,” especially in a downturn.

Employment law claims don’t dwindle along with a poor economy – they actually increase. This isn’t just speculative theory – it’s supported by a formal analysis of case filings.  A great study published in the Stanford Law Review by John Donohue and Peter Siegelman (The Changing Nature of Employment Discrimination Litigation, 43 Stan. Law. Rev. 983 (1991)), gives a clear picture of claim trends during an economic downturn:

• When the economy goes into a recession, there is a dramatic increase in the number of employment lawsuits filed in federal court.  A scarcity of alternative employment serves as a catalyst for litigation.

• The single largest predictor in the long-term growth trend of case filings is the national unemployment rate.  When the economy booms, employment discrimination case filings fall in the next half-year; when the economy slumps, case filings rise over the next half-year.  This phenomenon explains roughly 95% of the variance in the number of cases filed.  A modest rise in the current unemployment rate from 4% to 5.5% could generate a 21% increase in the number of employment discrimination claims.

• The average damage award to a successful plaintiff rises in business downturns, particularly with respect to employment discrimination suits.  Because the length of time it takes for a plaintiff to find another job increases in a recessionary economy, monetary awards are elevated.

• Overall charges surged by 9% over the prior year – the largest annual increase since 1993.

• Race claims still top the list at 37% of all EEOC charges.

• Up 18%, retaliation is now the second most common claim.

• Pregnancy discrimination claims jumped 14% over last year – a number that’s likely to only increase.

• The EEOC collected record monetary relief for victims of discrimination in 2007 -- $345M, an increase of 26% over 2006.

• Consent decrees and settlements with the EEOC consistently featured mandatory harassment and discrimination prevention training.

By now, you’re probably all familiar with your compliance training obligations and mandates. They really focus on three key areas – ethics, harassment and discrimination. If you’re not familiar, just check out the free ELT resources designed to help you understand the legal landscape.

And as a final note, remember to pay attention to your potential wage-and-hour liability during these tough economic times.  Like discrimination claims, wage-and-hour claims are increasingly attractive when wallets are thin, and alternative job prospects grim.  Wage-and-hour class action claims now outnumber all discrimination class action claims, combined.  So during our current downturn, I’m confident we can expect to see an increasing surge of claims related to pay and hours or work.  Training in wage-and-hour compliance, like with harassment and discrimination, can help your organization to establish invaluable affirmative defenses in the event of litigation.  Learn more about how training can impact the bottom line with ELT’s wage-and-hour resources.

At the end of the day, employment law training is so much more than “training” – it’s bottom line risk management.  You wouldn’t start canceling your business insurance policies to save money in a downturn.  The same goes for foundational employment law compliance.  It’s non negotiable.

The reason for the switch is that e-learning is more “flexible and efficient…[and] a more fluid model of training delivery” than the traditional classroom model, according to the reports. Instructor-led classes are also generally more expensive per learner, and organizations are growing reluctant to pull employees from their work in order to attend training sessions – not to mention tighter budgets during our slowing economy.

“It’s become pretty clear that companies simply cannot do corporate training without using technology,” said company president Josh Bersin. Even companies that were late adopting virtual training, such as St. Louis-based Anheuser-Busch Cos., have “reached a point where they [have] no choice.”

The reason for the switch is that e-learning is more “flexible and efficient…[and] a more fluid model of training delivery” than the traditional classroom model, according to the reports.  Instructor-led classes are also generally more expensive per learner, and organizations are growing reluctant to pull employees from their work in order to attend training sessions – not to mention tighter budgets during our slowing economy.

“It’s become pretty clear that companies simply cannot do corporate training without using technology,” said company president Josh Bersin.  Even companies that were late adopting virtual training, such as St. Louis-based Anheuser-Busch Cos., have “reached a point where they [have] no choice.”

The studies align with our own findings at ELT, which suggest an even stronger trend toward online training in the compliance space.  In 2005, we polled more than 2,000 HR, legal and ethics professionals, asking how much education on topics such as harassment prevention and ethics was occurring online in their workplaces.  The answer was 25 percent.  When we ran the same poll in 2007, the number climbed steeply to 40 percent -- an impressive 60 percent jump in less than two years.

When it comes to mandatory, enterprise-wide compliance training, the sheer volume of learners, as well as the requirement to constantly re-train workers, has made e-learning the only real viable option for companies of any significant size.  The other trend we’re seeing, however, is a downsizing in the number of online courses being built or purchased by employers.  While in the early 2000’s, a “library” model gained popularity, most organizations have discovered they purchased far more programs than they could consume, which translated not only into a poor ROI, but also watered down quality of the actual training programs.

The same 2007 ELT study referenced above asked employers where they are investing the majority of their training dollars and time when it comes to compliance subjects.  Over 90 percent indicated that efforts were concentrated in ethics/Code training, and harassment/discrimination prevention.  This finding is hardly surprising, given that these are really the only two areas where widespread training mandates impact employers of all sizes, and across all industries.  (For a detailed overview, check out ELT’s mandatory compliance training summary.)

So as you embrace e-learning, and the volume of online education at your organization grows, don’t fall into the trap of over spending on multiple compliance titles that are unlikely to get used, and unlikely to add much value to the bottom line.  While we love to see those e-learning numbers climb, sometimes less is more.

And as the economy only looks to get worse, that’s an easy argument to sell.

The contest between Hillary Clinton and Barack Obama is one of the most talked about elections in years. And as the first female and first African American candidates engage in a highly televised debate season, the number of debates among coworkers is on the rise as well. And in a lot of cases, these discussions can center on topics not appropriate for the workplace, including ethnicity, gender, sexual orientation, religion, and even morality.

And while it’s exciting to see our nation so engaged in the race for our next president, the current frenzy can also create challenges for organizations when it comes to maintaining a discrimination-free workplace. The very topics of the debates – healthcare, abortion, the environment, economics, immigration, and the war on terror, are ones that people are passionate about, and may cause resentment and tense working relationships among employees.

The contest between Hillary Clinton and Barack Obama is one of the most talked about elections in years.  And as the first female and first African American candidates engage in a highly televised debate season, the number of debates among coworkers is on the rise as well.  And in a lot of cases, these discussions can center on topics not appropriate for the workplace, including ethnicity, gender, sexual orientation, religion, and even morality.

And while it’s exciting to see our nation so engaged in the race for our next president, the current frenzy can also create challenges for organizations when it comes to maintaining a discrimination-free workplace.  The very topics of the debates – healthcare, abortion, the environment, economics, immigration, and the war on terror, are ones that people are passionate about, and may cause resentment and tense working relationships among employees.

The increased media coverage is not helping.  Employees are inundated 24/7 with election news on television, radio, newspapers, email, and blog postings.  And because so many employees have the misconception that what’s on television is fair workplace conversation, training employees on what your organization deems appropriate is more important than ever.

Consider an instance where you have two coworkers who interface on a regular basis.  Coworker A is vigorously opposed to the war, but coworker B has a child or relative in the military, stationed in Iraq.  Discussions on the war could prove disastrous, and in the end, cost your organization significantly in terms of lowered productivity, as well as the time and resources needed to resolve the issues.  If other employees become involved creating a workplace schism, the lost productivity, overall costs, and decreased morale just multiply exponentially.

Even discussions on policy can create huge problems for employers.  Take for example the recent Economic Stimulus Act of 2008 which will provide refunds for individuals earning under $75,000, or couples earning under $150,000 jointly.  As employees discuss this topic and inevitably mention whether or not they will receive a return, what they are also doing is revealing to their colleagues their general salary range and those of their spouse.  If an employee learns a coworker is making significantly more money, the disclosure could create problems and resentment, especially if those conversations then continue among other coworkers.

So how can you prevent inappropriate and potentially explosive political discussions in your workplace?

1. On election day, communicate to all employees that while your organization encourages them to exercise their right to vote, discussions about political preferences or issues may not be suitable in the workplace.
2. Monitor your workplace for political campaign ads, advertisements or other literature, and remind employees that certain printed materials may not be appropriate.
3. If you overhear heated discussions in the workplace, address them early.  Make sure your managers are also paying attention to what is going on in their individual departments.
4. Continue to train employees on the importance of maintaining a tolerant workplace and continue to communicate your policies for what your organization considers appropriate workplace discussions.  Training has been and will always be your best defense for preventing problems before they happen.

So the good news is that we have survived 55 past presidential elections.  And while the 2008 election may be the most watched and debated in years, having a sound policy and training program around diversity and discrimination will prove your best defense against problems.

See you in 2012!

Admissibility of "Me Too" Evidence, is a Case-by-Case Analysis

A closely watched Supreme Court case, Sprint/United Management Co. v. Mendelsohn was decided yesterday. Mendelsohn was a laid-off older worker who sued her employer for age bias. At trial Mendelsohn attempted to rely on the testimony of other older workers who also were fired from the same company. The district court refused to allow the testimony indicating that the facts of these co-workers were not relevant, because they had been fired by other supervisors, not the supervisor who laid off Mendelsohn.

Admissibility of "Me Too" Evidence, is a Case-by-Case Analysis

A closely watched Supreme Court case, Sprint/United Management Co. v. Mendelsohn was decided yesterday.  Mendelsohn was a laid-off older worker who sued her employer for age bias.  At trial Mendelsohn attempted to rely on the testimony of other older workers who also were fired from the same company.  The district court refused to allow the testimony, indicating that the facts of these co-workers were not relevant, because they had been fired by other supervisors, not the supervisor who laid off Mendelsohn. 

The 10th Circuit reversed that order, holding this kind of testimony always should be heard because it is "relevant to [the company's] animus toward older workers."  In a unanimous decision in favor of Mendelsohn, Justice Clarence Thomas stated, "[t]he question whether evidence of discrimination by other supervisors is relevant ... is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances." 

The compliance training take-away?  Be sure that your discrimination and harassment training programs cover age.  As importantly, be clear with managers that their actions not only impact direct reports, but the company as a whole.  Even if a manager’s conduct toward one of his or her employees does not promote a lawsuit, those actions could become relevant to a lawsuit involving a completely different employee (or group of employees).  While as legal, HR and compliance professionals, this is not a far-fetched concept, to your average front line manager, it may be completely unfathomable.  Awareness of the far-reaching impact of workplace conduct needs to be raised.

See the full text of the opinion.

Employees Should Not Suffer for the EEOC's Failures

A second labor and employment opinion was issued from the Court just this morning, Federal Express Corp. v. Holowecki.  Justice Anthony Kennedy issued the 7-2 ruling in favor of the employees.

The Court was asked to determine if an age discrimination claim against FedEx was filed properly.  The ADEA requires that plaintiffs alleging discrimination notify the EEOC and wait 60 days before filing a lawsuit against an employer so that the EEOC can notify the company and investigate the charges. FedEx alleged that the plaintiffs filed suit before notifying the EEOC, but the plaintiffs indicated that they had complied with the law and any failure to notify FedEx was the fault of the EEOC itself.

The Court was highly critical of the EEOC and affirmed the 2nd Circuit allowing the employee's case to proceed.  See the full text of the opinion.

The compliance training take-away?  While this case highlights more of a procedural issue, it underscores the prevalence of age related discrimination claims.  Be sure that your discrimination and harassment training programs don’t suffer from the “silo effect,” only addressing issues of sex and gender.  It’s critical to address other protected categories.  According to the EEOC's most recent stats, discrimination charges from 2006 break down as follows:

• Race – 35.9% 
• Sex – 30.7% 
• Retaliation - 25.8% 
• Disability – 20.6% 
• Age – 21.8% 
• National Origin – 11% 
• Religion – 3.4% 
• Equal pay - 1.1%

The EEOC will soon release its FY 2007 statistics – stay tuned for more updates.  And remember, when it comes to establishing affirmative defenses with compliance training, your programs need to address conduct relevant to the lawsuit at hand.  A sex harassment training program doesn’t have much to offer if you find yourself fighting an age discrimination claim.

The key provisions of the whistleblower protection under Article 8 of SOX are as follows:

• Employees who provide information about acts they reasonably believe to be a violation of securities laws, rules of the SEC, or laws relating to fraud against shareholders, are protected from retaliation by their employer.
  
  
• Protected employees cannot be discharged, demoted, suspended, harassed, or otherwise discriminated against.

SOX retaliation claims have been steadily on the rise since 2002. What’s even more interesting is that the average recovery in a SOX whistleblower discrimination claim ($270,000) significantly exceeds the average recovery in a classic Title VII retaliation claim ($187,583). (Employment Practice Liability: Jury Awards Trends & Statistics, 2005, Jury Verdict Research, Horsham, PA.)

So we know these types of claims are prevalent – which is why a robust ethics and compliance training program will include appropriate coverage of whistleblower protections and the rule against retaliation. What some of us may not realize, however, is that SOX whistleblower protections could apply outside the U.S. At least that’s what a recent case out of the Southern District of New York is suggesting.

The key provisions of the whistleblower protection under Article 8 of SOX are as follows:

• Employees who provide information about acts they reasonably believe to be a violation of securities laws, rules of the SEC, or laws relating to fraud against shareholders, are protected from retaliation by their employer.
  
  
• Protected employees cannot be discharged, demoted, suspended, harassed, or otherwise discriminated against.

SOX retaliation claims have been steadily on the rise since 2002.  What’s even more interesting is that the average recovery in a SOX whistleblower discrimination claim ($270,000) significantly exceeds the average recovery in a classic Title VII retaliation claim ($187,583).  (Employment Practice Liability: Jury Awards Trends & Statistics, 2005, Jury Verdict Research, Horsham, PA.)

So we know these types of claims are prevalent – which is why a robust ethics and compliance training program will include appropriate coverage of whistleblower protections and the rule against retaliation.  What some of us may not realize, however, is that SOX whistleblower protections could apply outside the U.S.  At least that’s what a recent case out of the Southern District of New York is suggesting.

In O'Mahony v. Accenture Ltd., 07 Civ. 7916, 02/05/08 (S.D.N.Y.), U.S. District Judge Victor Marrero held that the whistleblower protections of SOX applied to the U.S. subsidiary of a foreign Bermuda-based corporation based on conduct that took place on foreign soil, under foreign law and affecting an employee based in and performing services in the foreign jurisdiction. The case involved the non-payment of Social Security taxes in France for an employee of Accenture's U.S. subsidiary who had worked in France – not the typical kind of issue we focus on as ethics, legal and HR professionals. The Plaintiff claimed she was demoted and fired for refusing to conceal from French authorities that she had worked in the country long enough to invalidate the original certificate of exemption of coverage from France's Social Security taxes.  In other words, she was asked by her employer (Accenture's U.S. subsidiary) to keep silent about payments that were owed.

While it may seem a bit overly technical and obscure, the decision is worth watching because it is the first case to hold that the whistleblower provisions of SOX apply to an employee working overseas.  The Court focused on three key aspects of the case to justify the application of SOX protections extra-territorially:

1. The Plaintiff had worked at the U.S. subsidiary before being posted to France, and she was an employee of and paid by the U.S. subsidiary, even when she was working in France.  The employment relationship was therefore between a U.S. employer and its employee;
   
   
2. The alleged wrongful conduct "involved employees of Defendants located in the United States and occurred in the United States" [namely, the decision that Social Security taxes were not due and owing in France]; and
   
   
3. The Plaintiff was bringing suit against a "foreign parent and its U.S. subsidiary for alleged misconduct of the United States subsidiary in the United States."

Aside from the overseas application of SOX whistleblower protections, the case also carries importance because Judge Marrero rejected the previously assumed limitation of SOX to securities matters involving "fraud against shareholders."  He held that "general principles of statutory construction weigh against reading [the statute] as providing whistleblower protection only to employees who provide information concerning fraud against shareholders."

So O’Mahony is a big deal, not just for its jurisdictional reach, but also for its extension of SOX to cases not involving fraud on shareholders.

As to its specific relevance for those of us interested in compliance training, I think the take-aways are also three-fold:

1. It’s critical for your ethics and Code of Conduct training to cover the principles of whistleblower protection, to encourage reporting, and to make crystal clear the rule against retaliation – both by employees and by managers.
   
   
2. When you address the issues in #1, be sure to cast a broad net, and underscore that these rules are not limited to circumstances which involve reporting suspected fraud against shareholders.  They can apply to a much more extensive range of ethical violations and suspected misconduct.
   
   
3. If you are a multinational organization, don’t limit your ethics and code of conduct training to U.S. employees.  Train everyone (with appropriately localized programs).  Not only does your Code have global application, but in cases like O’Mahony, you may find U.S. laws being applied extra-territorially.

It will be interesting to see if O’Mahony can withstand appeal.  Even if it does not, the practical recommendations that it inspires make for good business practice in any event.  So many of the training programs I review are dangerously thin on proper treatment of anti-retaliation principles, yet lawsuits claiming retaliation are on a steep and steady increase.  Time to review your materials and blow the whistle internally (pun intended) if your organization’s training programs are coming up short.

Plenty of organizations get bogged down in the smoke and mirrors of intricate compliance risk assessments and the infamous “training needs analysis” (usually run by a vendor who conveniently, also sells training). But when it comes to the baseline training that should drive the foundation of spend decisions, it’s really not that complicated. The core curriculum should be comprised of those areas where: (1) training is legally mandated, and (2) there is the greatest exposure based on actual litigation trends.

The first driver is pretty simple – frankly, because there aren’t that many true mandatory training laws. Most are concentrated in the areas of harassment and discrimination. (For a detailed overview, check out ELT’s mandatory compliance training summary.)

The second is a bit more complicated, and of course more fluid. You have to look at the actual litigation data from recent years. Luckily, we lawyers love to research this stuff, and write about the data at length – so the information is easy to come by. Take the recently released fourth Annual Workplace Class Action Litigation Report from Seyfarth Shaw LLP. It analyzes rulings and decisions in 507 leading class-action and collective-action cases against employers in all 50 states, along with key settlements. The report’s chief conclusions are that the rapid pace of wage-and-hour litigation is likely to continue this year, and that workplace litigation, especially class action and multi-plaintiff lawsuits – “continues as the chief exposure driving corporate legal budget expenditures.”

• Collective actions pursued in federal courts under the FLSA produced more rulings in 2007 than did class actions for employment discrimination or under ERISA.
• The Class Action Fairness Act of 2005 continued to have significant effects on case law, primarily in wage-and-hour class actions filed in state courts.
• Plaintiff lawyers resorted to state courts more frequently to pursue employment-related class actions, particularly in the wage-and-hour arena.
• Although the U.S. District Courts for the Southern and Middle Districts of Florida experienced more wage-and-hour filings than any other federal jurisdiction, the most significant growth took place in state courts in California, Florida, Illinois, New Jersey, New York, Pennsylvania and Texas.
• As to discrimination exposure, in 2007, the EEOC “became increasingly activist in its litigation filings.”
• Recoveries secured by the EEOC and the U.S. Department of Labor in 2007 “represented new records in total monetary relief as compared to past years.”
• The financial industry has been bit hard in both arenas – wage-and-hour and discrimination:
• The report highlighted large settlements paid by Morgan Stanley and Merrill Lynch at the end of 2006 to settle wage-and-hour cases over unpaid overtime for highly paid financial analysts – employees many people did not think were likely plaintiffs in a wage-and-hour case.
• Two of the top 10 settlements in the area of private plaintiff employment discrimination class actions again involved Morgan Stanley – $46 million for female financial advisers and trainees who claimed gender discrimination, and $23.5 million for Black and Hispanic financial advisers and trainees who claimed gender and race discrimination.
• In the top 10 settlements of government-initiated lawsuits, Sidley & Austin agreed to pay $27.5 million to settle an EEOC suit alleging age discrimination against partners, Walgreen Co. agreed to pay $24.4 million to settle an EEOC suit alleging race discrimination against Black employees and Woodward Governor Co. agreed to pay $5 million to settle an EEOC suit alleging discrimination against Black employees.

Just yesterday, IBM announced plans to change the base pay and status of 7,600 workers. IBM will lower base salaries for these employees (6% of its workforce) and make them all overtime eligible. At the end of the day, employees shouldn’t see a significant change in their take-home pay – it will just be paid on slightly different terms, and workers will need to be diligent about properly recording their hours.

What motivated IBM to make this decision? A $65 Million settlement in 2006 for unpaid overtime (OT). IBM was hit with the kind of wage and hour case employers are terrified of facing – a class action claim that workers who are classified as exempt from OT are actually OT eligible. It’s typically a no-win situation for the employer, because when workers have been classified as exempt, detailed records of the hours they’ve worked simply don’t exist. That makes the job of plaintiffs’ counsel easy – and mighty lucrative. The burden of proof rests on the employer to prove employees did not work overtime, and without extensive documentation, that’s a tough row to hoe. Add in the ease of class certification with these types of cases, and you see why employers are facing a tidal wave of wage and hour litigation.

Just yesterday, IBM announced plans to change the base pay and status of 7,600 workers.  IBM will lower base salaries for these employees (6% of its workforce) and make them all overtime eligible.  At the end of the day, employees shouldn’t see a significant change in their take-home pay – it will just be paid on slightly different terms, and workers will need to be diligent about properly recording their hours.

What motivated IBM to make this decision? A $65 Million settlement in 2006 for unpaid overtime (OT).   IBM was hit with the kind of wage and hour case employers are terrified of facing – a class action claim that workers who are classified as exempt from OT are actually OT eligible.  It’s typically a no-win situation for the employer, because when workers have been classified as exempt, detailed records of the hours they’ve worked simply don’t exist.  That makes the job of plaintiffs’ counsel easy – and mighty lucrative.  The burden of proof rests on the employer to prove employees did not work overtime, and without extensive documentation, that’s a tough row to hoe.  Add in the ease of class certification with these types of cases, and you see why employers are facing a tidal wave of wage and hour litigation.

A Solution That Begs For Training

Reclassification is an interesting solution to an OT problem like IBM’s  -- and one that could help some employers get a handle on a piece of the wage and hour risk puzzle. However, reclassification also brings some new challenges and issues. In this case, do IBM’s newly classified employees really understand the rules of the road when it comes to their hours and pay?   With wage and hour law, the life of an exempt employee is very different from that of a non-exempt one. 

Non-exempt (a.k.a. OT eligible) employees need to keep meticulous records of hours worked, and must pay close attention to employer rules about everything from properly recording time, to reporting errors, to taking meals and breaks, to avoiding off-the-clock work. Then add in the need for supervisors to understand how to manage hourly employees – especially ones that were previously considered OT exempt.  Managers have special responsibilities when it comes to record keeping, errors and reporting, and handling employee complaints. Get any of the complex rules and requirements wrong, and IBM may find itself facing yet another expensive lawsuit.

That’s where wage and hour training comes in. Employers who chose to reclassify employees must also remember to educate them about key wage and hour rules. You should never just assume your workers know what to do – no matter how sophisticated or professional they may be. The requirements are complex and don’t always make sense. (In fact in many cases, they’re counter intuitive.) And while a well written and widely distributed policy is a good idea, we all know that policies are very unlikely to change employee behavior (let alone be read by your workers).  Policies need to be brought to life, and put into context, by companion education programs. 

Beyond educating your workforce about how to avoid wage and hour mistakes, training in this area has another huge benefit – the ability to establish affirmative defenses in the event of litigation.  While most HR and legal professionals are aware of this concept in the harassment and discrimination context, few truly understand the extent of damage mitigation that a training and compliance program can offer in the wage and hour arena.  To find out more, check out ELT’s whitepaper on training ROI.

Who?
FAR 3.10, FAR 52.203-13 and FAR 52.203-14 apply to government contracts of at least $5,000,000, and which require at least 120 days to perform.

How?
The new regulations require both an employee awareness program, as well as a robust internal audit program.

When?
Effective December 24, 2007.

Government Contractors Face Substantial Requirements

The new FAR rules are noteworthy for requiring both an employee awareness program and a robust internal audit program.  Specifically, the regulations provide that an employee training program should extend to all employees, and represent an “ongoing” effort to ensure that employees both know and understand their obligations under their employer’s Code. 

Likewise, the regulations require affected contractors to institute internal controls, including suggested “periodic reviews of company business practices, procedures, policies and internal controls.”  This make a robust ethics and code of conduct program an absolute essential for employers doing even modest business with the federal government. 

The new FAR requirements will sound very familiar to those in the private sector.  Most organizations adopted Codes of Conduct and ancillary ethics training programs following the passage of the Sarbanes-Oxley Act in 2002, and amendments to the Federal Sentencing Guidelines in 2004.   The FAR rules emphasize the need for an ongoing program, as well as the requirement to reach out to all employees.  These requirements codify what we view as best practices for all organizations – whether doing business with the government or not.

The complete text of the new FAR requirements can be found at http://acquisition.gov/far/current/html/Subpart%203_10.html and http://acquisition.gov/far/current/html/52_200_206.html.

A summary of the key rules follows:

Which Government Contractors Are Affected?

The new FAR requirements generally apply to any government contract worth at least $5,000,000 and which requires at least 120 days to perform.  They also apply with minor exceptions to subcontractors providing services under the affected contracts.

How Does the Timing Work?

• Within 30 days* of entering into a government contract, contractors must:
  
  
• Adopt a written code of business ethics and conduct;
   
  
• Provide a copy of the Code to each employee engaged in the performance of the government contract; and
   
• Promote compliance with the adopted Code.
  
  *This time may be extended by the contacting officer and the requirement does not apply to existing contracts that were awarded before December 24, 2007, or to task orders awarded under those contracts.
  
  
• Within 90 days of entering into a government contract, contractors must:
  
  
• Establish an “ongoing business ethics and business conduct awareness program; and
   
• Establish an internal control program aimed at:
  
  
• The timely discovery of improper conduct; and
  
  
• Ensuring corrective measures are taken.

What Kind of Employee Training and Audit Programs Are Required?

In general, the regulations provide that government contractors must adopt (1) employee business ethics and compliance training, and (2) internal audit programs:

• That are suitable to the size of the company and extent of its involvement in Government contracting.
• That facilitate the timely discovery and disclosure of improper conduct in connection with Government contracts 
• That ensure corrective measures are taken.

For details on available online training and awareness programs, go to ELT’s ethics training resources.

Do We Also Need to Display Hotline Posters?

Probably not.

Under FAR 52.203-14, if a contractor has implemented a business ethics and conduct awareness program, including a reporting mechanism (such as a hotline), then the contractor does not need to display any agency fraud hotline posters, other than any required DHS posters.

If a contractor has not implemented a business ethics and conduct awareness program, it must display a government agency or Department of Homeland Security-approved fraud hotline poster (available from the official Contracting Officer).  This requirement will most likely apply to small businesses that are not required to follow the training and internal control rules.  (See exceptions below.)

What Happens if We Don’t Comply?

Contractors that fail to comply with these new requirements could face withheld payments, loss of fee award, or even debarment, suspension or other disciplinary action. 

Are There Any Exceptions to the New FAR Requirements?

Yes.

The regulations do not apply when the contracts are awarded under the FAR Part 12 commercial item contracts clause, or when the contract will be performed outside of the United States, the District of Columbia, and outlying areas.

In terms of a partial exception, contractors that have represented themselves as small business concerns during the contracting process are excluded from the formal training program and internal control requirements. 

These exceptions also flow through to subcontractors.

Could There Be Additional Changes to the new FAR Requirements?

Yes.

At the request of the DOJ, a supplement to the Code is under consideration. The proposed additional rule was published on November 14, 2007 and the deadline for comments was January 14, 2008.

This Proposed Rule imposes additional requirements regarding codes of business ethics and conduct, including notification requirements for contractors upon becoming aware of violations of federal law.  The Proposed Rule appears to be consistent with the contractor compliance requirements in U.S. Sentencing Commission Guidelines Manual, which provide specific guidance on what the FAR Councils consider to be an effective ethics and compliance program. 

It is anticipated that these additional requirements will be approved.  Stay tuned to ELT’s website and blog for more updates. 

What Should We Do Now?

If your organization does business with the federal government, you need to immediately determine whether you have current or prospective contracts valued over $5,000,000. 

If you meet the threshold, it’s imperative to create a robust and easy-to-understand Code.  If you already have a Code, you should consider reviewing and updating it.   The new regulations require “periodic reviews of company business practices, procedures, policies and internal controls.” A Code should be a living document that reflects the ongoing needs and challenges of your business, as well as changes in the law.

The Code then needs to be widely distributed to your employees.  The distribution requirement dovetails nicely with the requirement to establish “ongoing business ethics and business conduct awareness program.”  The most effective way to communicate the Code, and to bring it to life, is to include it as part of your enterprise-wide training program.  With online education, the Code can be seamlessly delivered and tracked, along with the training.

Finally, you need to establish an “internal control program.”  Don’t let this sound more complicated than it needs to be.  The intent of the new FAR requirements is for companies to be able to discover improper conduct, and to take corrective action when they do.  In short, you need to have an effective complaint and investigation procedure.  This is likely something already well established at your organization.  The key is for employees to know about it – in other words, make sure that it’s well publicized through your training programs and other forms of internal communications (intranet, periodic e-mail announcements etc.)

Now here’s a reality check for those of you hoping to fit the exceptions.  Even if you’re not technically covered by the new FAR requirements, it is still highly advisable to follow these new rules.  Not only do they reflect the key components of the Federal Sentencing Guidelines (which almost every employer needs to follow), they represent basic best practices when it comes to risk management, and fostering a culture of compliance. 

The trend of Code adoption and ethics training is only continuing to build momentum.  In the coming months and years, we’re likely to see more of these types of regulations -- impacting employers of all sizes and types, and across all industries. 

For more information about online training and awareness programs, go to ELT’s ethics training resources.

When it comes to the workplace though, making a couple of solid resolutions is a very good idea. The process of selecting your top initiatives and then working out a plan to achieve them can help you focus your time and attention on what really matters.

So … for those of us in the compliance training world, and those of us who manage employment law risks, what should be on the list? At ELT, we’ve boiled it down to 5 simple items:

When it comes to the workplace though, making a couple of solid resolutions is a very good idea. The process of selecting your top initiatives and then working out a plan to achieve them can help you focus your time and attention on what really matters.

So … for those of us in the compliance training world, and those of us who manage employment law risks, what should be on the list? At ELT, we’ve boiled it down to 5 simple items:

1. Resolve to Avoid Crippling Fines and PR Nightmares: If we’ve learned anything from 2007, it’s that mandatory ethics and compliance training is a must for all employers. Training not only gets the right message out to your employees, but it can also help protect your organization from huge fines and criminal sanctions, not to mention a lot of bad publicity. Unfortunately, some employers learn this lesson the hard way. The most recent victim – the Tribune. They got caught inflating circulation numbers, lying to advertisers, and overcharging for ad placement. The Tribune just settled a criminal case with the feds to the tune of $15 Million. They now require ethics training for all their employees. If only they’d made a commitment to train employees sooner… they may have avoided this mess entirely.
   
   
2. Resolve to Send a Consistent Message to All Employees: When it comes to harassment training, one consistent, nationwide message is best for all employees. This includes everyone from entry level workers to your senior leaders (let’s not forget the recent Red Cross romance debacle). And don’t think that just because your state doesn’t mandate harassment training that it isn’t essential. If your organization is sued under federal law (and most claims today include both federal and state actions) sexual harassment training can mean the difference between winning and losing the case.
   
   
3. Resolve to Tackle New Ground with Wage and Hour Education: In the last few years, wage and hour litigation has slapped US employers squarely across the face. Employers of all sizes are reeling from costly and time-consuming litigation that’s resulting in staggering damage awards and settlements. Did you know that wage hour class actions now outnumber all discrimination class action cases, combined? 2008 is the year to do something about it, and to change your organization’s risk profile. Start (or enhance) your wage and hour compliance program with effective and carefully designed wage and hour training for all of your employees.  Training needs to address both supervisory and nonsupervisory employees, and accommodate state law issues. Wage and hour education can actually help your organization establish critical good faith defenses to federal and state wage and hour claims. And another side benefit, your employees will know how to do things right from the start. Most violations in this area result from a basic misunderstanding of the laws and your policies.
   
   
4. Resolve to Go Beyond Harassment: Harassment training alone may not be enough to protect your organization in the event of a discrimination lawsuit. For example, if you get sued for national origin disparate impact discrimination, trotting out your sexual harassment training program won’t get you very far, especially if punitive damages are on the table. Discrimination training for supervisors across all of the protected categories is a critical part of establishing the Kolstad defense. Remember, harassment is just one form of discrimination. Your managers need to be trained on discrimination basics across the employment lifecycle (hiring, performance management, terminations), in addition to harassment.
   
   
5. Resolve to Train More Efficiently & Effectively: Nothing is more frustrating than purchasing an entire library of compliance courses only to discover that you have way more content than you need or could possibly consume. When it comes to compliance training, the best approach is to stay focused. Most employers do not need a massive course library – they need 4 cornerstone courses (ethics and code of conduct, harassment, discrimination, and wage and hour). A narrow focus will help ensure that your annual training initiatives are a big success rather than a massive flop – and that they carry true ROI in terms of reduced claims, and assertable defenses.

Adopting these simple but effective compliance training resolutions will help your New Year get off on the right foot, and finish strong.

From all of us at ELT, all the best for 2008!