Table 10.1 shows potential training activities and situations that can make an employer vulnerable to legal actions and harm the company’s reputation. The following sections describe each situation and potential implications for training.
Failing to Provide Training or Providing Inadequate Training
To comply with a wide range of laws and regulations, companies are required to show that employees not only have completed training programs but also are applying their new knowledge on the job. Most companies provide training to reduce the potential for a hostile work environment for employees protected by Title VII of the Civil Rights Act (race, color, gender, religion, nationality, national origin), the Age Discrimination in Employment Act (age), or the Americans with Disabilities Act (disability). For example, the U.S. Supreme Court considers sexual harassment training to be an important factor for companies that wish to avoid punitive damages in sexual harassment cases. Employers must also train employees to comply with practices designed to prevent harassment of any class protected by Title VII.
Federal laws may require a certain number of training hours and types of training for employees in certain industries. For example, initial training for flight attendants must include how to handle passengers, use galley equipment, evacuate the airplane, and use the public address system. The safe landing of US Airways Flight 1549 on the Hudson River was one of the rare moments when a U.S. passenger plane completed a forced landing without loss of life of passengers or crew. As a result, the Federal Aviation Administration is proposing new training regulations and rules for airlines, calling for hands-on drills on the use of emergency equipment and procedures for all flight attendants.
In congressional hearings, the Federal Aviation Administration (FAA) has been accused of providing inadequate training for air traffic controllers, resulting in near collisions between aircraft. As a result, the FAA has upgraded training by purchasing simulators that use voice-recognition technology and allow trainees to instruct simulated aircraft on takeoff and landing procedures in all types of weather conditions. This allows better training of air traffic controllers who otherwise would have to wait for inclement weather to conduct on-the-job training.
Companies in health care are required to comply with the Health Insurance Portability and Accountability Act (HIPPA); companies in finance are required to comply with the Bank Secrecy Act; and companies in the gaming industry (such as casinos) are required to train employees on how to handle money and how to report suspicious activity. In several states, candidates interested in being hired as full-time police officers must complete approved police training. Legislation can also require training that is related to providing a drug-free workplace (e.g., training about drug abuse and making counseling available) and a safe workplace (e.g., training about the handling of hazardous materials and the use of safety equipment as dictated by the Occupational Safety and Health Act).
Due to recent corporate scandals, compliance examiners are now more rigorously reviewing the quality of training by evaluating whether employees understand how regulations apply to their jobs. This has resulted in a change in the methods used for compliance training. Traditionally, compliance training used passive learning methods such as lectures, handouts, or e-mail attachments with PowerPoint slides. Now, companies are using training methods that enhance both learning and transfer of training—such as e-learning, Business Games, and role playing—to ensure that employees not only understand regulations but can also apply them. For example, Tufts Health Plan uses a game-show format for awareness training, and Ho-Chunk Casino uses scenarios to teach casino employees specific behaviors to watch for.
Incurring Employee Injury during a Training Activity
On-the-job training and simulations often involve the use of work tools and equipment (e.g., welding machinery, printing press) that could cause injury if incorrectly used. Workers’ compensation laws in many states make employers responsible for paying employees their salary and/or providing them with a financial settlement for injuries received during any employmentrelated activity such as training. Managers should ensure that (1) employees are warned of potential dangers from incorrectly using equipment and (2) safety equipment is used.
Incurring Injuries to Employees or Others Outside a Training Session
Managers should ensure that trainees have the necessary level of competence in knowledge, skills, and behaviors before they are allowed to operate equipment or interact with customers. Even if a company pays for training to be conducted by a vendor, it is still liable for injuries or damages resulting from the actions of poorly, incorrectly, or incompletely trained employees. A company that contracts out training to a vendor or consultant should ensure that it has liability insurance, be sure that the trainers are competent, and determine if there has been previous litigation against the trainer or the vendor providing the training. Also, trainers should be sure to keep copies of notes, activities, and training manuals that show that training procedures were correct and followed the steps provided by licensing or certification agencies (if appropriate).
Incurring Breach of Confidentiality or Defamation
Managers should ensure that information placed in employees’ files regarding performance in training activities is accurate. Also, before discussing an employee’s performance in training with other employees or using training performance information for promotion or salary decisions, managers should tell employees that training performance will be used in that manner.
Reproducing and Using Copyrighted Material in Training Classes without Permission
Copyrights protect the expression of an idea (e.g., a training manual for a software program) but not the ideas that the material contains (e.g., the use of help windows in the software program). Copyrights also prohibit others from creating a product based on the original work and from copying, broadcasting, or publishing the product without permission.
The use of videotapes, learning aids, manuals, and other copyrighted materials in training classes without obtaining permission from the owner of the material is illegal. Managers should ensure that all training materials are purchased from the vendor or consultant who developed them or that permission to reproduce materials has been obtained. Material on Internet sites is not necessarily free from copyright law. Many Web sites are governed by the fair use doctrine, which means that you can use small amounts of copyrighted material without asking permission or paying a fee as long as the use meets four standards. The standards relate to (1) the purpose for which the copyrighted materials are being used, (2) what the copyrighted work is, (3) the proportion of the copyrighted material you are using, and (4) how much money the copyright owner can lose as a result of the use. Republishing or repackaging under your own name material that you took from the Internet can be a violation of copyright law. For example, the CEO of Crisp Learning frequently finds his small company in court defending copyright issues. Crisp Learning develops and sells video and training courses that deal with skills such as business report writing and time management. The series of courses, known as the Fifty-Minute series, is popular because it is easily applied and can be completed in a short period of time. Crisp Learning has found that copyright violators have actually retyped its books and sold them as their own work. Violating copyright can be expensive. Copyright violators can end up paying expensive legal fees and paying damages that are more expensive than what it would have cost to legally purchase the training materials. To obtain copyright permission, you need to directly contact the owners of the material and explain how the material will be used and how ownership will be cited. Another way to get copyright permission is to seek permission from organizations such as the Copyright Clearance Center (www.copyright.com) or iCopyright.com.
Excluding Women, Minorities, and Older Employees from Training Programs
Two pieces of legislation make it illegal for employers to exclude women, minorities, or older persons from training programs. Title VII of the Civil Rights Act of 1964 (amended in 1991) makes it illegal to deny access to employment or deprive a person employment because of the person’s race, color, religion, gender, or national origin. The Age Discrimination in Employment Act (ADEA) prohibits discrimination against persons who are age 40 or older. The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing both the Civil Rights Act and the ADEA.
Although these two pieces of legislation have existed for several years, a study by the U.S. Department of Labor found that training experiences necessary for promotion are not as available or accessible to women and minorities as they are to white males. Women, minorities, and older employees can be illegally excluded from training programs either by not being made aware of opportunities for training or by purposeful exclusion from enrollment in training programs. Denial of training opportunities and better treatment of younger employees can be used to support claims of age discrimination. Older employees may bring lawsuits against companies based on a denied promotion or discharge. As evidence for age discrimination, the courts will investigate whether older workers were denied training opportunities that were provided to younger workers. To avoid age discrimination in training, managers and trainers need to ensure that the organization’s culture and policies are age-neutral. Decisions about training and development opportunities should not be made on the basis of stereotypes about older workers and should take into account job-relevant factors such as performance. Managers should be held accountable for fair training and development practices and for ensuring that all employees have development plans. Finally, all employees should receive training on the ADEA and on how age stereotypes can affect treatment of older employees. Stereotypes such as “older workers are resistant to change” may result in exclusion of older workers from training and development programs.
The University of Phoenix had to pay over $1 million for demonstrating a religious bias against non-Mormon employees who worked as enrollment counselors in the university’s Online Division. The bias included denying tuition waivers to non-Mormon employees for failing to meet student registration goals while granting similar waivers to Mormon employees. In another example, Coca-Cola settled out of court a discrimination suit in which African American employees were excluded from programs needed to receive promotions in the company. Four current and former Coke employees filed a lawsuit alleging race discrimination in pay, promotions, and performance evaluations within the Coca-Cola company. Rather than face continued legal and public scrutiny and to move forward on initiatives to correct the perceived racial discrimination, Coca-Cola agreed to pay $113 million in cash to the plaintiffs, $3.5 million to adjust salaries of African American employees during the next 10 years, and $36 million to implement various diversity initiatives. The goal of the settlement is to change the company culture. Coke’s employment practices have been reviewed by a task force consisting of experts in civil rights, diversity, labor, employment, and business. The task force also reviews Coke’s human resource practices. The settlement required more oversight of managers’ decisions on promotions, more mentoring programs, and regular diversity training for all employees. Coke has made progress in complying with the requirements of the settlement agreement. Coke’s external recruiting of minorities has increased, and the company has sent all its managers and half its employees to two-day diversity awareness training. However, according to employee surveys, Coke’s African American employees are, on average, less positive about fairness within the company than are white employees, particularly about fairness related to advancement and career opportunities.
Not Ensuring Equal Treatment of All Employees While in Training
Equal treatment of all trainees means that conditions of the learning environment, such as opportunities for practice, feedback, and role playing, are available for all trainees regardless of their background. Also, trainers should avoid jokes, stories, and props that might create a hostile learning environment. For example, because of claims that female employees were being harassed at air traffic control centers, the Federal Aviation Administration (FAA) required employees to attend diversity training. The diversity training required male employees to experience what it felt like to be taunted and jeered at as you walked down the aisle in an air traffic control facility (known as “walking the gauntlet”). One of the male employees found the experience to be distasteful and psychologically stressful, sued the FAA, and won.
Requiring Employees to Attend Programs That Might Be Offensive
Allstate Insurance has been the focus of several religious discrimination lawsuits brought by insurance agents who have found the Scientology principles emphasized in agent training programs offensive and counter to their religious beliefs. For example, the program taught concepts such as the “tone scale” which catalogs emotions and scientologists believe can influence behavior.
Revealing Discriminatory Information during a Training Session
At Lucky Store Foods, a California supermarket chain, notes taken during a diversity training program were used as evidence of discrimination. In the training session, supervisors were asked to verbalize their stereotypes. Some comments (“women cry more,” “black women are aggressive”) were derogatory toward women and minorities. The plaintiff in the case used the notes as evidence that the company conducted the training session to avoid an investigation by the Equal Employment Opportunity Commission. The case was settled out of court.
Not Accommodating Trainees with Disabilities
The Americans with Disabilities Act (ADA) of 1990 prohibits individuals with disabilities from being discriminated against in the workplace. The ADA prohibits discrimination based on disability in employment practices including hiring, firing, compensation, and training. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a record of having an impairment, or being regarded as having such an impairment. This includes serious disabilities such as epilepsy, blindness, or paralysis as well as persons who have a history of heart disease, mental illness, or cancer that is currently in remission.
The ADA requires companies to make “reasonable accommodation” to the physical or mental condition of a person with a disability who is otherwise qualified unless it would impose an “Undue Hardship” on the organization’s operations. Determination of undue hardship is made by analyzing the type and cost of the accommodation in relation to the company’s financial resources. Even if the Undue Hardship can be justified, the ADA requires that the person with the disability be provided the option of paying that part of the cost that causes the undue hardship.
In the context of training, reasonable accommodation refers to making training facilities readily accessible to and usable by individuals with disabilities. Reasonable accommodation may also include modifying instructional media, adjusting training policies, and providing trainees with readers or interpreters. Employers are not required to make reasonable accommodation if the person does not request them. Employers are also not required to make reasonable accommodation if persons are not qualified to participate in training programs (e.g., they lack the prerequisite certification or educational requirements).
One example of how the ADA might influence training activities involves Adventure Learning. Some adventure learning experiences demand a high level of physical fitness. Employees who have a disability cannot be required to attend adventure learning training programs. If it does not cause an undue hardship, employees should be offered an alternative program for developing the learned capabilities emphasized in the adventure learning program.
It is impossible to give specific guidelines regarding the type of accommodations that trainers and managers should make to avoid violating the ADA. It is important to identify if the training is related to “essential” job functions. That is, are the tasks or knowledge, skills, and abilities that are the focus of training fundamental to the position? Task Analysis information can be used to identify essential job functions. For example, tasks that are frequently performed and critical for successful job performance would be considered essential job functions. If training relates to a function that may be performed in the job but does not have to be performed by all persons (a marginal job function), then a disability in relation to that function cannot be used to exclude that person from training. To the extent that the disability makes it difficult for the person to receive the training necessary to complete essential job functions, the trainer must explore whether it is possible to make reasonable accommodations.
Incorrectly Reporting Training as an Expense or Failing to Report Training Reimbursement as Income
The cost of training is covered by Internal Revenue code. Companies can often deduct the cost of training provided to employees as a business expense. The Employer Assistance Program allows an employer to pay an employee up to $5,250 per year for certain educational expenses. This amount can be deducted by the employer as a business expense without adding the payment to the employee’s yearly gross income. In other programs (e.g., the Educational Reimbursement Program), the employer can decide which training is paid for and how it is funded. Reimbursement for training expenses that an employee incurs may be considered part of the employee’s taxable income. Employees may be able to deduct workrelated educational expenses as itemized deductions on their income taxes. To be deductible, the expenses must be for training that maintains or improves skills required in the job or that serves a business purpose of the company and is required by the company, or by law or regulations, in order for employees to keep their present salary, status, or job. See www.irs.org for more information about business and individual reporting of educational expenses.
Situations That May Result in Legal Action
• Failing to provide required training or providing inadequate training
• Incurring employee injury during a training activity
• Incurring injuries to employees or others outside the training session
• Incurring breach of confidentiality or defamation
• Reproducing and using copyrighted material in training classes without permission
• Excluding women, minorities, and older Americans from training programs
• Not ensuring equal treatment while in training
• Requiring employees to attend training programs they may find offensive
• Revealing discriminatory information during a training session
• Not accommodating trainees with disabilities
• Incorrectly reporting training as an expense or failing to report training reimbursement as income