9/1/2007
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Workforce Performance Solutions By Cari McLean
Ever-evolving labor-employment regulations
are often the banes of HR and legal working
relationships. Simply complying with
labor-employment laws is not the primary
challenge, however — it’s combating the
aftereffects of maintaining compliance: time
lost on the job, decreased productivity and
the expenditures that follow compliance
training. “Employment laws cover a lot of
different areas — there are harassment laws,
discrimination laws, equal-pay laws,
disability laws, etc., so it can come at an
organization from many different angles,”
said Lynn Lieber, Esq., founder and CEO,
Workplace Answers, a provider of HR,
financial and ethics compliance training
courses. “But the primary ways employment-law
changes affect organizations are in terms of
time, cost, productivity and risk of
reputation. In all those ways, it really
affects the bottom line of the organization.”
Regardless of the labor law in question, it
can be extremely challenging for small and
blue-chip organizations to achieve
compliance, Lieber said. “What we come up
against is the legislatures really don’t
understand or think of the impact these laws
have on employers who are either very large
or very small — it is hardest for them to
comply,” she said. “The people in the middle
have a small enough workforce and
well-established enough HR departments. If
you have 70 employees, and you have to comply
with the Family and Medical Leave Act (FMLA),
it can be very challenging. Likewise, if you
have 40,000 people, doing anything on a
nationwide or global basis is very
challenging, as well.”
In 2005, Lieber’s
company assisted the University of California
and California State University in achieving
compliance with the Assembly Bill 1825,
regarding sexual harassment training for
employees. Lieber said more than 60,000
supervisors were trained at the universities,
and it wasn’t a walk in the park achieving
compliance because of the vagueness law at
its initial stage. “It has been a very
difficult thing for employers to comply with
because the regulations aren’t finalized yet.
(They actually just changed again on Aug.
29.) So employers are really dealing with a
lot that is unclear — they’re not sure how to
comply with it,” Lieber said. “For example,
under that law (AB 1825) the definition of a
supervisor is very different than a normal
definition of supervisor: It’s anyone who
assigns and directs work to someone. So
employers have had to re-look at all of
payroll systems and things since you just
can’t say, ‘Payroll, please print out a list
of all of our supervisors,’ because under
this law, it could be your secretary who
supervises a temporary person. In addition,
employers have had to look at issues such as
training the supervisors who live outside of
California who supervise people outside of
the state of California.”
Lieber also said
many employers have decided to train all
their supervisors, even the ones scattered
worldwide.
“A lot of organizations have said, ‘We’re
just going to take the high road and be on
the safe side — because California
supervisors need to be trained, we are going
to train all supervisors across the country.’
You could easily see a lawsuit where someone
works in Vermont, and he or she is not
getting the training, and they’re harassed,
and their supervisor wasn’t trained,” she
said. When it actually came down to training
for AB 1825, the law was unclear as to what
type of training modality was acceptable, as
well. Lieber said most organizations opted to
perform instructor-led sessions for the first
round of compliance in 2005. Different
methods of learning the sexual harassment
training, however, have been specified in the
new regulations — in addition to group
sessions, it is now acceptable to complete
the training online or by self-study. Lieber
said this is good news for national and
global employers because it will be easier
for them to comply, as well as ensure
employees are trained to the specified
standards.
“As an employment lawyer for
almost 20 years now, I think Web-based is
very compelling because there is no excuse to
why you can’t do it — it’s not like, ‘I was
on vacation’ or something like that,” she
said. “Everyone is getting the same type of
content, so you know your entire organization
is trained on the exact same situation — you
can control it more — and supervisors love it
because they can take it at their own
convenience. And frankly people are just sick
of going in a conference room, hearing a
lecture by an attorney on sexual harassment.
I also think if you take a Web-based program
on your own, people tend to take it more
seriously because it forces them to interact
with the material, oftentimes. It isn’t a
passive experience like in a conference room
— it heightens the seriousness of the
training.” Lieber said not only does
Web-based training increase supervisor
engagement and the consistency of the
training, it also limits the sticky
situations that sometimes occur during
instructor-led harassment training.
“Instructor-led training it is often very
hard for the trainer because employees and
supervisors will ask you questions that are
kind of a setup sometimes. Like, they’ll say,
‘What if my supervisor does this, this and
this,’ and they don’t understand that you are
the trainer, and as the trainer you could get
into a bad situation because you don’t know
what is going on behind the scenes,” she
said.
Lieber said HR and legal departments
must be continuously proactive in their
approach to labor-employment compliance in
order to mitigate the potential impact
regulation changes and implementations can
have on organizations. “It is very important
that HR be educated and takes proactive steps
not to rely on legal to tell them everything
that is happening,” she said. “HR executives
really need to take the initiative to go to
seminars, even if the employer doesn’t
support them in doing so. If they have the
knowledge, they can talk more intelligently
with the legal department or outside counsel
and get the respect of the organization in
putting forth inclusion initiatives, training
initiatives and simply getting the tools that
they need to make sure the organization is
complying with the laws.”