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by Barbara N. Shaw
Welfare reform will change how government, industry, and HR professionals work together. In August of 1996, President Clinton signed the Personal Responsibility and Welfare Reconciliation Act. This piece of legislation changes 60 years of welfare support into a system that encourages self-reliance. New time limits on benefits will make it critical for people to find and retain jobs. Over the next several years, approximately two million welfare recipients will need to find work. Can this solely be the job of government? I don't think so. Will this have an impact on companies and HR people? Absolutely.
Many companies are plagued with high turn over, apathy, and absenteeism in entry level positions. HR managers throughout the country are disturbed over the level of experience and lack of job readiness apparent in entry level people. These are problems that exist now, even before we take into account two million additional job seekers, some of whom have relatively poor work histories. If welfare recipients are to be successful in finding jobs and keeping them, government and industry are going to need to develop a new kind of partnership.
If companies say, "take this job and be grateful"; if states say, "take this inexperienced worker and do your community service"; if program operators and placement people say, "take whatever job is offered", we will only push people off of welfare temporarily. Having welfare recipients return to the welfare roles is a lose-lose situation for everyone. When good partnerships are developed between government and business, there can be success for everyone. When companies say, "take this position for which you are qualified, start at the bottom, and look forward to a career", programs can work. When states say, "provide support help for employers and for welfare job seekers", the system can work. When placement people say, "look for the positions that interest you and continue your training or education", programs can work.
There are currently models throughout the country where this partnership is happening. Companies are helping design good programs so that welfare people can find positions that match their skills. What do companies, states, and programs do that is successful? Many states are experimenting with strategies to make welfare workers attractive to corporate America. Your new employee may come with a new dedication to work and with a package of tax credits and support services. Consider some of the following strategies being used by creatively designed programs:
Under current federal law, some employers can receive a tax credit of up to $2100 for hiring welfare recipients. This credit is designed to provide an incentive for companies to develop a program to hire welfare recipients.
Many locations are developing mentoring, job coaching, counseling, and post-employment services to support employers and new employees. These programs and services are created to help people transition off of public assistance and to become successful.
Many programs provide a job matching service. This can greatly reduce the work for companies in determining a good job match. This pre-screening can be very beneficial.
Some companies and government agencies are partnering to develop incentive packages to encourage retention. These incentives take the form of individual training accounts or tuition type packages that provide some support for continuing education and training.
Many programs are adding "job readiness" training. All across the country, firms are complaining that new employees, especially entry-level employees, are not really ready to "show up, work hard, respond to a supervisor and treat customers well". These programs provide specific training to coach new employees regarding the importance of a good work ethic.
Some programs continue to support welfare recipients as they transition into the work place. In the past, many programs failed to work actively on retention so many welfare recipients had difficulty adjusting and returned to the welfare roles. Today, programs provide transitional child care, transportation support, and counseling services.
Some agencies and employers use an intermediary. The intermediary acts as the temporary "employer of record" to relieve the employer of the risk of the first several months. These temporary placements are appealing to employers as they minimize the risk until the employer can assess how well the employee is performing. This trial period can also address the concern for liability and workers' compensation costs until the employer is ready to commit to the employee.
There are numerous national programs that have gained amazing reputations for establishing good welfare-to-work programs with their agency partners. In these programs, the partners work together to match welfare recipients' talents, abilities, and potential with good job opportunities. Cleveland Works is a very successful model that moves welfare recipients into the work environment and has good support from employers. The program provides a safety net of day care, legal advice, a health clinic, and employment training. Corporations such as United Airlines, United Parcel Service, Burger King, Monsanto, and Sprint all have excellent partnerships in the welfare-to-work arena.
These creatively designed programs can provide some major benefits for your organizations. The key to these programs is finding ways to help welfare recipients find jobs, stay employed, continue their education, and advance. If you are looking for prospective employees, consider looking for a creative program that will match people with your jobs, provide job readiness training, and continue to support new employees. Welfare reform programs can provide you with a new source of employees for hard to fill positions.
As an HR professional, you are familiar with what it takes to make the job match work. Having input up front in building successful programs may make a tremendous difference. The creative model has government supporting business and business supporting the welfare-to-work self-reliance model. It is good for everyone in the partnership when it is done correctly.
For further information, contact your local Private Industry Council or the Welfare-to-Work Partnership at 1-888-USA-JOB-1
Barbara N. Shaw is the owner of Barbara Shaw Seminars, a training and facilitation firm located in Lafayette, California. She is also Chair of the California State Job Training Coordinating Council, the organization charged by Governor Wilson with coordinating employment, training, and education agencies. She can be reached at 925-283-6929.
(Although the California Supreme Court has depublished the following case, it would still benefit employers to take to heart the suggestions it brought about in the original article. - Editor)
California employers are now subject to greater liability for sexual harassment based on a recent state court ruling. In Lai v. Prudential Insurance Company of America, a panel of the California Court of Appeals adopted a broad five-part test for determining liability under the California Fair Employment and Housing Act (FEHA). The decision broadens the scope of employers' liability for sexual harassment claims.
Under the court's ruling, a "supervisor" is: "any person in the chain of command over an employee, who has been invested by the employer with sufficient authority in the employment workplace that he or she has sufficient actual or reasonably perceived power or control or direction in the work environment to significantly affect an employee's employment status." This standard is a broad expansion of prior law and will result in far more employees being considered "supervisors" for sexual harassment cases.
Unfortunately, there's more. The Lai decision also reaffirms that an employer is strictly liable not only for quid pro quo sexual harassment but also for hostile environment type sexual harassment if that harassment is perpetrated by a supervisor.
Lai's Claims:
On June 18, 1990, Justine Lai, one of seventeen sales agents in an Alhambra office of Prudential Insurance Company of America, first alleged that she had been forced to engage in sexual conduct by her sales manager. Prudential conducted an investigation into Lai's claims and permitted the sales manager to resign in lieu of termination effective June 25, 1990 - seven days after Prudential first received a complaint from Lai.
Lai subsequently sued Prudential and the sales manager. Prudential defended itself on the grounds that the sales manager was not a "supervisor" for purposes of the FEHA because he had no authority to hire, promote, demote, terminate or otherwise discipline the sales agents with whom he worked. Neither did he have a role in establishing corporate policy at any level. His only duties as sales manager were to train sales agents, to work with them in their sales efforts and to report their progress to his supervisors in management. Prudential also relied upon its prompt investigation of Lai's complaint and its immediate remedial action of removing the sales manager from the workplace.
The Court of Appeals flatly rejected Prudential's arguments that the sales manager was not a supervisor under the FEHA because supervisory status requires the authority to hire, promote, demote or terminate an employee. Instead, the court adopted a five-part test for determining when an employee is a supervisor under the FEHA and capable of engaging in conduct for which the employer will be strictly liable:
Has a title such as "supervisor" or "manager" been conferred on the individual, coupled with the responsibility and power to direct the work of other employees?
Do the duties of the individual include the responsibility or right to oversee the work of an employee or employees, or to evaluate for the employer the performance of the employee, or the duty to orientate or to train the employee?
Has the individual the actual power, or reasonably perceived power to discipline the employee or to recommend discipline of the employee?
Has the individual the power or reasonably perceived power to significantly influence the employee's working conditions such as by determining the working conditions or increasing or decreasing the work duties?
Is the employee charged with the day-to-day supervision of the work environment?
The court then analyzed the situation before it and held that the sales manager was a supervisor under the five-part test because he had the title of sales manager and had job duties that imbued him with considerable actual and perceived power. Specifically, the court found that in addition to having the title of "sales manager," he recruited potential candidates to be sales agents, trained and generally assisted the sales agents in performing their jobs, and supervised their sales duties and methods of selling. The court also found that he determined the times that sales meetings would be held and when the agents were to report to him, determined whether time off would be granted or denied, distributed weekly paychecks, and reported on the agents to his supervisors. According to the court, these things clearly established him as a supervisor.
The Court then turned to whether an employer is strictly liable for hostile work environment claims of sexual harassment involving a supervisor. The Court concluded that an employer is strictly liable for both quid pro quo and hostile work environment sexual harassment where the claim involves a supervisor-subordinate relationship.
What Does This Mean to Employers?
This decision mandates that prudent employers take several actions:
Evaluate job positions and titles An employer must evaluate its work staff and ensure that it has given titles such as "supervisor" or "manager" only to persons with actual supervisory or management responsibilities. Similarly, an employer must verify that employees who do have actual supervisory or management responsibilities are properly titled as supervisors or managers.
Train Supervisors Once an employer has evaluated and properly classified its job positions, supervisors must be trained to prevent sexual harassment. They must know what constitutes sexual harassment, what to do when they observe conduct that can constitute sexual harassment, and the personal and professional consequences of engaging in or failing to address sexually harassing conduct in the workplace.
Monitor the Workplace Although Prudential promptly responded to Lai's June 18th allegation by conducting an investigation and terminating the offending supervisor effective June 25th, the court found that Prudential had failed to monitor the workplace properly before it received a complaint. Prudent employers will monitor each of its geographic or organizational areas to ensure that front line and other supervisors are performing in compliance with company policy.
(California employers would also be well advised to remember that the standard for handling sexual harassment complaints in California requires that the problem be solved, not just that action is taken to discipline an offender.)
Reprinted from Flash, published by Landels Ripley & Diamond, LLP, with permission. For more information contact Howard A. Simon, Esq., editor at 415-512-8700 or at has@landels.com
by Denise V.M. Hubert
Conflict in the work place costs business more money than honest mistakes because all too often these days conflict turns into litigation. Even the fear of lawsuits now carries a large price tag.
Eighty-three percent of corporate executives report the fear of a lawsuit affects their decisions. According to The Rand Institute for Civil Justice, the fear of wrongful termination litigation causes managers to accept inadequate performance, to avoid reengineering positions and systems, and to miss development opportunities. The result, according to Rand, is that the fear of litigation ends up costing business 100 times more money than the direct legal expenses of litigation.
There is good reason for these fears, according to the Employer's Resource Group, "wrongful termination lawsuits have increased one-hundred fold in the last ten years with alarming trends of $733,000 as the average award in wrongful termination cases in a national survey, verdicts ranging from $500,000 to over $17,000,000, and with former employees winning jury verdicts in 64% of the cases." The cost of litigation on the one hand and the dollars lost for rear of litigation on the other hand create a no-win situation.
To combat these costs, companies today are beginning to address conflict with a different philosophy. This new concept is alternative dispute resolution. Most often employment ADR means using arbitration or mediation to resolve issues. Arbitration usually takes place through the implementation of mandatory arbitration agreements, which bring their own set of problems. A number of companies have been sued over their mandatory employment arbitration clauses. A southern California law firm is currently being sued for wrongful termination for firing an employee who refused to sign such an agreement.
The Ninth Circuit U.S. Court of Appeals heard arguments on March 9, 1998 in a case challenging mandatory arbitration. This case has the court trying to reconcile Title VII of the Civil Rights Act of 1964 with the U.S. Supreme Court's Gilmer decision on arbitration, issued in 1991. "What we have to do here is decide what Congress intended in the Civil Rights Act," commented Judge Stephen Reinhardt. The Supreme Court's Gilmer decision allowed employers to compel arbitration of statutory claims, unless Congress created specific exemptions. The Ninth Circuit now has to determine whether or not Congress did so with the Civil Rights Act. Gilmer and the Act are "like two trains on different tracks," said Judge William Canby, Jr.
Mediation is also being used to resolve employment issues. Unfortunately, a mediated issue means an employee with his or her lawyer, and the company with its lawyer, attend mediation meetings lead by a trained lawyer/mediator to resolve the dispute. The downside of this approach is that mediation does not occur until well after court filings, time-consuming discovery, and expensive depositions, all of which also fuel resentments and harden positions on both sides.
True ADR
To save money and be effective, employment ADR must start earlier and resolve disputes more quickly than current approaches allow. A dispute resolution program that starts at the moment of complaint receipt and solves issues early, quickly and fairly is true ADR.
The most overlooked form of ADR is fact-finding and it can be the most important step. The employer's initial response to a complaint is crucial because when and how you first reply to a complaint establishes how quickly that problem turns into a solution. To be effectual, ADR must start with fact-finding and must begin within 24 hours from complaint receipt.
Keep in mind, the decision to report workplace concerns is often a delayed decision by employees. To protect co-workers or to avoid being labeled as troublemakers themselves, employees may hide issues until the matter reaches a personal crisis point. Management often has not seen or heard of the problem prior to a complaint. However, because employees held onto it for some time, they become angry when they do not see immediate action, making the whole process more difficult. This delay is also as dangerous for the employer because issues of long standing or repetition bring greater damages to the organization, to the employee population, and in jury awards.
Promptness is critical in fact-finding for other reasons. How soon you begin an investigation directly affects the information received because:
As time passes, memories fade losing important details of an incident.
The more time workers spend discussing incidents and facts, the more their memories may blend into one.
Witness recollection can be "adjusted" due to fearfulness of "being wrong."
In some situations peer pressure or management pressure takes hold. As more time passes this pressure affects the investigation and makes employees hesitant to talk or provide documents.
Some employees may fear reprisal from other employees for sharing information.
Documents are lost either intentionally or in the natural course of daily activity.
Greater cooperation is more likely when an investigation occurs close in time to the incidents resulting in the claim.
Witnesses may no longer be employed by the organization or may become unavailable to provide needed information.
Trusted Neutrality
Along with promptness, a company must provide a fact-finding report employees and management alike trust. If anyone involved perceives the report as biased or incomplete in any manner, the fact-finding efforts are meaningless. No one uses a mistrusted report as a basis for discovering solutions.
Supplying a trusted report means providing neutrality. Neutrality begins with the investigator. A neutral, third party is someone with no interest in and nothing to gain from an outcome. Neutrality means an investigator of the facts is not involved in the dispute, in the chain-of-command of any party or witness, and has no reason to prefer a certain result. Investigators must be and must be perceived as neutral.
Duke University's Professor E. Allan Lind recently completed a study of wrongful termination that pointed out why employees sue their employers. "...employees who feel that they were treated without dignity or respect on the job ... were more than twenty times more likely to file a claim against their former employer." Professor Lind advises that the worker's perception of whether he or she was treated fairly is as strong as the economic factors in determining whether or not the employee will sue. His study goes on to state, "unnecessary litigation is 'unnecessary' when better management could have avoided it."
According to Lind, "studies show that people who are treated with dignity emerge from experiences, even from experiences that entail substantial negative outcomes, with a feeling of fairness. Employees judge fairness on whether or not they were treated politely and with dignity, whether they feel their views are listened to and considered, and whether they feel decisions are made on factual rather than a biased basis."
"If the organization demonstrates it wants an even playing field and decision makers base their judgments on facts, rather than personalities, then people feel fairly treated. If authorities give the impression that they are trying to do the right thing, that they are considering all points-of-view, trust is engendered."
These findings illustrate the key to reducing the risk of lawsuits, even to avoid lawsuits altogether, is by immediate fact-finding, with fact-finders using proper techniques, and with quickly accomplished investigations. Early, thorough, neutral, factual reports all combine to provide the respect and dignity claiming employees, and their co-workers, look for to feel fairly treated.
Would a Jury Consider Your Fact-Finding Report Neutral?
What's the point of spending time and money on a fact-finding report that will not pass the critical eye of your own employees, an outside agency or a jury? There are a number of steps you can take to ensure the sustainability of your investigations.
1. Plan the Investigation
Before you begin, develop an investigation plan. List the needed physical evidence. Identify potential witnesses, including the claimant, the witnesses listed by the claimant, the alleged wrongdoer, and the others from whom it becomes apparent, during the course of the investigation, additional information is available. Create an interview order and draft questions for each interview to ensure the information received is objective, accurate, thorough and relevant.
2. Conduct Investigations Expeditiously
Beginning within 24 hours is essential.
3. Maintain Objectivity
The duty of a fact-finder is not to judge but to gather the facts. To maintain objectivity, it is important fact-finders follow these investigative principles:
Corporate positions, titles, race, religion, physical status, age and gender do not give facts more or less weight.
Do not let the facts given at the outset dictate the extent or scope of the inquiry. Although it may be human nature to jump to conclusions based on initial information, subsequently obtained facts may cause one to alter original positions.
Witnesses' information may contain partial information, misinformation, biased information, or new information regarding the facts and avenues to be pursued. Remaining objective will allow a fact-finder to recognize additional areas for the investigation.
Do not discount anyone involved in any way with the claim or assume how much value an individual can add; interview all persons who might have information about the alleged activity.
Do not attempt to determine the value of the information received. If it is relevant to the case, include it.
4. Maintain Proper Confidentiality and Discretion
Every fact-finder must preserve two levels of confidentiality. First is the absolute confidentiality necessary to keep the facts of the investigation from going beyond the investigation circle. The second level of confidentiality is to divulge within the circle only the facts necessary to conduct a fair investigation. However, the fact-finder cannot promise absolute confidentiality between participants in the investigation. Provided information may require corroborating statements.
5. Ensure Sustainable Evidence
Obtain corroboration for statements. Confirming a statement with a corroborating statement from someone else, or with supporting but independent documentation, helps the parties involved more clearly understand the strengths and weaknesses of the claim. Follow the best evidence rule: collect original documents whenever possible.
It is best to have a cadre of in-house fact finders correctly trained to investigative techniques. A good rule of thumb is to have five investigators available for every 200 employees ensuring you have professionally trained persons available considering vacations, illness, and conflict-of-interest issues.
An employee complaint is a serious matter. Make fact-finding assignments a priority obligation over other duties. Again, consider how an outside investigator handles assignments. This person's sole responsibility is to investigate and this focus creates quick completion. Your in-house fact-finder must operate the same way. It is a professional approach and it reduces emotional inflammation. Except in complex situations with numerous witnesses, complete investigations in five to seven business days. Also, it is easier to achieve resolution within two weeks of a serious allegation than it is three or four months later, after frustration forces employees to hire lawyers. Remember, studies show early demands by employees are generally very low.
Let the claimant pick their own fact-finder from the company list. Allowing a person to select the investigator brings added trust to the final report, and if all your investigators are well trained, it really doesn't matter to you whom the employee picks. Some companies also consider having both a man and a woman on investigative teams, particularly in sexual harassment issues. There may be times when this approach will be helpful to you.
Let the claimant pick their own fact-finder from the company list. Allowing a person to select the investigator brings added trust to the final report, and if all your investigators are well trained, it really doesn't matter to you whom the employee picks. Some companies also consider having both a man and a woman on investigative teams, particularly in sexual harassment issues. There may be times when this approach will be helpful to you.
The most important factor is to manage investigations using the over-riding fairness principle: conduct the investigation the way you would want to be investigated if you were claiming harassment or discrimination, or if someone alleged you had committed some violation. If at any time there is a question of whether or not the fairness principle will fully apply to an investigation, and that means fairness to all parties involved, even the employer, then an outside fact-finder should conduct the investigation.
An outside fact-finder can usually start right away, will take less time to complete the report because he or she does not have other in-house duties, will bring an objectivity that no in-house person can bring, and is not intimidated by rank, size, history, or other issues that may affect, or appear to affect an in-house person. Whatever that cost may be, and it is usually less than you think, it will cost your company less than an unfairly or poorly conducted investigation that results in a lawsuit and jury verdict.
Denise V. M. Hubert is Vice President for Internal Dispute Resolutions, based in San Francisco, and specializes in employment conflict resolution. She can be reached at 415-389-9890.
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