While it might sound hard to believe, management training programs have definite interplay with litigation. Any claim, whether it is harassment, discipline based, safety focused or another complaint will be influenced not only by the way managers handle a situation but also by the training they have had in that area of concern -- or even by the training they did not have but “should have had.”
The answer to the question, “Why train?” is simple. Policies are irrelevant if they are not followed or if they are contradicted. An effective management training program yields productivity and consistency and helps managers integrate your company’s values and culture into daily business operations and staff interaction.
Well-planned, executed and documented training programs not only lead to a more positive and productive work environment; they also can provide affirmative defense for your company in some cases or at least reduce potential damages when judgments don’t swing in your favor. Either way, proof of training can demonstrate fairness to fact finders in any case where training-related claims arise and wind up in a litigious environment.
There’s an adage in the legal community -- “If you’re prepared to be sued, you’re less likely to be sued.” With that in mind, think about what you can do to make sure the training programs you have in place for such things as harassment and discrimination, employee discipline, wage and hour issues, Family Medical Leave Act (FMLA) and more not only prepare your employees for a productive, appropriate work experience but also protect your company’s officials from winding up in a courtroom, sitting at the defendant’s table.
Harassment and Discrimination
Training covering compliance with local, state and federal equal employment opportunity laws regarding gender, age, race, color, national origin, disability, genetic and religious discrimination, among others, is fundamental. Training regarding the changes brought by the newly amended Americans with Disabilities Act (ADA) and the newly enacted Genetic Information Non-Discrimination Act (GINA) is particularly important.
Likewise, discrimination-related retaliation claims continue to rise against employers. Consequently, issues surrounding discrimination should be addressed preventively through training rather than at the crisis level after charges have been raised against your organization.
Most importantly, anti-discrimination and harassment training stress this key focus: All policies are irrelevant if not followed (or if they are contradicted).
Not surprisingly, discipline decisions are a hotbed for employment-related litigation, and training in this area is important. Management training should strongly stress that if an action was not documented, it never happened.
The training also should ensure that all discipline decisions are accurately, clearly and completely documented. Additionally, the five C’s of effective discipline should be emphasized:
Wage and Hour Issues
State and federal wage and hour lawsuits (including Fair Labor Standards Act, or FLSA lawsuits) have dramatically increased over the past several years and continue to do so. Staffing issues related to the economic downturn have also generated numerous wage and hour issues. Thus, management training should address such prominent issues such as the following:
- What constitutes "work,” including training regarding how to treat time spent on Blackberries/personal digital assistants and other virtual office concerns
- Proper classification of employees
- Identification and management of common mistakes related to overtime (including mistakes related to waiting time, volunteer time and travel time)
- Compliance with recordkeeping obligations to minimize liability. As with discrimination and harassment claims, retaliation claims are also a concern in the wage and hour arena
The Family and Medical Leave Act (FMLA) can be complicated to navigate. Recent military service member leave amendments, regulatory amendments and continually evolving court decisions/administrative guidance regarding successor and joint employer liability issues make this perennial-hot topic even more so. For this alone, comprehensive FMLA training is always an important risk management tool.
Another unpleasant reality of the modern workplace is the potential for workplace violence. Training managers to recognize potential warning signs, as well as educating them about available legal protections such as anti-stalking and restraining orders, is a must.
General Supervisory Skills
Supervisors and managers are obviously the first line of implementation for employer policies and procedures. They also bear the initial responsibility relating to discipline and discrimination issues. Thus, general supervisory skills training is important, and in addition to addressing all of the topics presented above, this training also should address such basic issues as interviewing skills, dealing with difficult employees and employee morale.
Liability for Managers
In the course of any management training session, it’s imperative that you emphasize any and all potential liability issues -- not only those for the business entity as a whole, but also the individual liability for supervisors and managers. Such liability does exist in certain situations. Consider discrimination laws, as one example:
While there is no individual liability for discrimination under federal anti-discrimination laws, such as Title VII, ADEA, ADA and the Pregnancy Discrimination Act, a supervisor or manager might be individually liable for discrimination under state laws. It depends on where he or she lives and works.
This same concept holds true for numerous other scenarios. An employment attorney can help you determine the level of liability your company and your managers face in these situations.
The most thorough and detailed training program can be rendered worthless as protection in a courtroom if you do not document all your efforts. Simply put, in the eyes of the court, the same adage stressed above about employee discipline also holds true in respect to training: “If it isn’t documented, it didn’t happen.”
The easiest way to be prepared with good back-up information is to create and maintain logs of all training sessions. Include copies of any presentations delivered and any handouts provided.
Also be sure to not only document the date and focus of these programs, but also record the names of those managers who attended the sessions.
Documentation also provides a good basis for measuring results over time.
An investment, not an expense
The saying, “an ounce of prevention is worth a pound of cure,” really does ring true when it comes to management training. There’s no doubt about it.
A proper employment process that incorporates well-thought-out training programs that focus on practical, real-life situations not only keeps litigation to a minimum; it also ensures that your company can better manage or even eliminate problem or non-performing employees.
Think of training as an investment rather than expense -- in the long run, a well-developed program with measurable results bolsters your company’s success rather than draining your budget. It’s time and money well spent.
Christine T. Cossler regularly counsels both public and private sector clients on employment-related matters, including litigation risk management, and provides training in a variety of areas, including harassment prevention, employee privacy and technology concerns in the workplace. For more information, visit http://www.walterhav.com/