Mandated Training Legal Dos and Don'ts
When can training be held? Can employees be asked to pitch in for the costs? What are the risks of looking outside for the trainers?
Several questions arise: When can the training be held? Can employees be askedto pitch in for the costs? What are the legal risks of looking outside for thetrainers?
Paul Salvatore, a partner in the labor and employment practice groupin the New York City office of Proskauer Rose, offers HR some guidelines ontraining.
- What kind of training tends to be legally mandated?
- There are certain areas, like in OSHA, where regulations require employersto do a certain kind of training -- or at least ensure their employees havethat kind of training before they put them to work.
- Discrimination and harassment is nearly mandatory. What we've seen sincethe Clarence Thomas-Anita Hill standoff in the early 1990s is a movement --and Supreme Court rulings in the past few years have propelled that movement-- toward training as an almost essential function for companies. Some states,like Connecticut and Maine, require training in the sexual-harassment areafor managers. It's a growing trend.
- So sexual-harassment and discrimination-prevention training is almost mandatoryin practice?
- The Supreme Court has essentially ruled that punitive damages cannot be availableagainst an employer who has taken all the preventative steps in discriminationand harassment. So this training has become almost mandatory for corporationsin order to prevent the problems from happening, and to avoid liability.
- Say your company is required to conduct training. How much does the companyhave to pay for?
- You have to shoulder the cost of the training as the employer. As far as I know,there's no government grant for doing harassment training, although there maybe for some kinds of safety training.
- Does it matter if the training is conducted live rather than online?
- Live training is the traditional way of presenting material in an interactiveway. Sometimes people use theatrical actors to role-play, or movie clips, casescenarios, or lecture formats. The trainers customize their content to the company'sculture, making sure they're teaching the policy of the company, whatever thatpolicy may be. The problem with that kind of training is if you have 50,000employees. How do you get to all of them?
- So you can use the Internet?
- The Web has created a dramatic delivery mechanism.
- With legal wrinkles so rapidly developing in the online arena, is suchtraining legally viable?
- I'm unaware of any case that talks to the delivery mechanism of training.
- The critical factor is the quality of the material you're presenting. Youmust make sure it's customized enough to cover the company. You also haveto have a record to show that the person has gone through the training. Mostgood training programs have a quiz at the end. Once you've completed the program,an e-mail goes to HR for a permanent record of the accomplished training.
- What if the employee fails the legally mandated training?
- Then the employee brushes up, does some remedial reading, and takes the quizagain to show that the problem has been dealt with.
- Can you demand that employees go through their training on the weekend orafter work hours?
- Sure, but this training is considered work, so under the wage and hour lawsyou're going to pay the employees if they're non-exempt. If they're managers,they're exempt, so then they're on a salary. But a regular worker would getovertime.
- What if it turns out that the training itself is simply ineffective? Where'sthe liability then?
- With sexual-harassment law, for example, the plaintiff's attorney often challengesthe efficiency of the training and the quality of the training. It's very commonthat the training content and delivery becomes an issue.
- What if the training itself causes a legal issue -- an employee is hurt,or, in harassment training, the discussion reveals something ugly or illegal?
- There have been cases where the training is not done well -- especially in thearea of diversity training. There are situations where people are encouragedby their trainers to act out as part of their methodology. Things said and donein these training sessions have come back to haunt the company. There are caseswhere companies have been found liable because of things said or done, or retaliatoryactions, triggered by improperly conducted training sessions. That is anotherreason why you want to understand what you're buying when you're outsourcingtraining.
- And in such cases, who would be sued: the company that hired out or thetrainers?
- I think the company is going to be sued by the employee. Whether the employercan look to recover from the third party is an interesting legal question. Butusually these third parties aren't real deep pockets. The company is the deeppocket. Usually it's not so much malpractice in the training as, "My managerSam revealed he's a member of the Ku Klux Klan and loves to put up nooses. Twoweeks later I found a noose in my cubicle, and when I confronted him about it,he denied it, and three weeks later he fired me for poor performance."It's not so much the training as what's revealed in the training.
- What should HR do then, if something like that is revealed in training?
- I've had many training sessions where people say things and do things thateven the group knew were wrong in terms of the group's mores. Then you haveto engage in a very sensitive but tactful kind of Socratic exchange with thatindividual to try to have him or her understand why they're an outlier interms of what they've expressed.
- In a group session, sometimes you can achieve that and sometimes you can't.But it's a job you'll follow up with human resources. Because you can't justlet that go. Anytime you're dealing with workplace issues, you're dealingwith sensitive personnel issues. And it's hard unless you're utilizing peoplewho know what they're doing.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.
Workforce, September 2001, pp. 82-84 -- SubscribeNow!