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February 28, 2005
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 The H.R. Doctor Is In

I’ll Take HR Liabilities for $250,000, Alex!

When Frankenstein the manager meets Wolfman the employee, Human Resources better be ready to act! Organizations that do not embrace proactive HR philosophies and take prevention and intervention actions promptly are in real jeopardy. Liabilities for poor practices continue to increase steadily.

HR Executive Magazine recently reported that in 2003, the average compensatory damage award in employment practices liability cases was more than $250,000. The prior year was $212,000, the year before that it was $168,000. These were just part of the cost. They do not reflect the poor morale, waste of taxpayer resources, attorney fees and loss of productivity. In a recent EEOC case stemming from a terrible workplace violence tragedy in Mississippi, U.S. Equal Employment Opportunity Commission (EEOC) felt that the employer was liable for failing to respond proactively in recognizing the symptoms of trouble ahead.

Consider the following questions and how you would answer them as a leader in public or business administration.

1) Are active steps taken to improve and maintain strong security in the workplace?

If the answer was "yes," can you demonstrate the improved security practices clearly and convincingly to others with proper documentation? The "others" might include a jury; however they might include your own insurance brokers trying to keep liability, property and workers’ compensation costs to a minimum. They might include the relatives of an injured employee whose injury could have been avoided if security measures had been taken to avoid workplace violence, or domestic violence spilling over into the workplace.

For many public agencies, the greatest risk of violent assaults on employees may not come from al Qaeda but rather from the perpetrator of domestic abuse failing to control emotions in the victim’s workplace.

Security also means taking proactive steps to create barriers to the negligent hiring of employees who have lied on their applications. Without strong and documented criminal history, driving history, credential verification and reference checks, an organization might end up hiring a person repeatedly convicted of drunk driving to drive a school bus, a convicted embezzler to work in the finance department, an arsonist to work in the fire department or a convicted pedophile to work in the child care programs.

Security means making sure the parking lot is safe for employees to move through after dark to get to their cars and that receptionists have some physical barrier between them and the clients. It means securing the supply chain to be more confident that thousands of dollars of purchases for everything from paper to computers to pharmaceuticals, which are delivered at the organization, actually make it to the intended destination instead of to the car trunk of a burglar. Workplace security has become one of the new imperatives for a manager of the 21st Century. (See the HR Doctor’s article "Every Manager a Security Manager" at for more tips and background).

If you answered "no" to the security question, the HR Doctor’s best advice is to immediately freeze, step away from the doughnut you are eating and create a security program built around expert, field-tested advice. However, please finish reading this article first.

2) Do you know how the organization would respond to charges of racism or sexual harassment made by an employee against a supervisor or another employee?

Surprisingly, you may find that most people — over three-quarters — reported in one survey that they would take no action in the face of poor behavior by another person. They would move on rather than confront the perpetrator or report the behavior.

If you answered the question "yes," you should have in place a strong set of written policies, comprehensive training for employees including new hires and especially for the organizations’ direct agents, the supervisors and managers. There should be regular refresher training and signed "receipts" demonstrating that an employee was at the training, received the information and acknowledge his (yes, the perpetrators usually are male) responsibilities not to engage in, condone or fail to report such poor behavior.

There should be a clear complaint procedure including protection from retaliation against people who report violations in good faith. There should be trained and experienced staff members, often in Human Resources, ready to promptly conduct a documented investigation leading the agency to take strong, appropriate action if the allegations are sustained. If they are not sustained, the organization owes the person wrongly accused a strong statement that the charges were not sustained.

If you answer "no," immediately put down the coffee cup, invite the HR Director over for lunch and discuss the fact that the organization is really committing nothing short of malpractice by knowing of these liabilities and not launching very strong proactive steps to "put off the day when something bad happens."

Finally, no matter what your answer might be to the question above, it is very possible that even with policies and training in place, managers and supervisors will avoid dealing with poor behavior and let it fester.

A person who has the responsibility to supervise others has a special diligence requirement to follow the HR Doctor’s most important advice: "Don’t walk by something wrong!" Instead, take some kind of positive action. Actions may include reporting the behavior, or interrupting the sexist jokes which are not really funny, or the racist comments and privately remind the perpetrator of a serious violation taking place. Perhaps the "reminder" can take the form of an immediate suspension pending completion of an investigation.

There is absolutely no excuse for the particularly serious malpractice committed when the perpetrator is a supervisor, a manager, or even an elected official in a government agency.

3) Are the policies and actions in place to meet the legal and practical compliance requirements of the "alphabet soup" of laws such as HIPAA, FMLA, FLSA, ADA, EEO and other acronyms?

If the answer is "no," the organization is providing a golden opportunity to the plaintiff’s lawyers lurking everywhere in the Yellow Pages®. They are likely to leap out and bite the ankles of the manager and attack the credibility of the agency. Along with federal or state laws, including civil rights laws and wage and overtime laws, come federal complaint procedures and enforcement agencies such as EEOC and the Department of Labor. These folks are only too happy to come to the agency office, flash the badge with the picture of the Secretary of Labor on it, and leave behind an extremely painful migraine headache, which can last for years. The headache may occur whether or not the agency has violated any of these laws. Just the investigations, the production of records, the need for attorneys, the staff time diverted from services and production of products to investigative activities, and other related expenses can drain precious energy from the organization as well as harm morale.

Obviously, if the agency has violated the law, it should absolutely learn from its violation, sanction the violator and change practices and procedures immediately. The agency should tell the truth about what happened, correct its mistakes and move on to better administration for the future.

The center of the proper administration for these programs will likely be Human Resources. The HR office, staff members and the director need to be very proactive, knowledgeable, and sitting next to the chief executive officer providing guidance and counsel. If access and respect within the organization is not present for HR, my advice to colleagues in HR is to work very hard to correct the situation. If those efforts fail, then leave as soon as possible with honor before the organization succeeds in mugging itself. If HR has a place of respect in the organization, my collegial advice is not to disappoint. Be "on station" and proactive. Help keep everyone out of trouble and full of passion to do their work well and to do the right thing in their relation with other people. Even if there is no HR office, or if it is combined with other activities, as is the case in small organizations, the function is still vital!

For new professionals just entering the field, find an organization with the characteristics described above. It is in these new professionals’ best interest to turn down an offer from an organization which won’t provide growth and positive challenge. These comatose organizations may provide ample opportunity to use no other tool than a shovel for staff members who will spend too much time cleaning up smelly organization "poop" instead of doing more positive work.

3) Is the phrase "job related," the centerpiece of HR decision-making?

Hopefully, the answer is a clear yes! Any other answer means either that the manager doesn’t know if decisions can be successfully defended against challenge, or it means decisions are made in a dangerous way. The way to defend unlawful employment practice charges is to show "job-relatedness" in the decision making. "I wasn’t hired because of my race…" needs to be met and overcome by "actually, the person wasn’t hired because of their lack of relative qualifications to perform the essential work of the position!"

This concept of job-related decision making is what HR is all about. It needs to permeate organizational decision making in areas such as hiring, discipline, promotion decisions, layoff and more.

The Jeopardy TV show is great. However, allowing jeopardy at work is not what modern administration is all about. Answer the questions above with confidence and knowledge as well as the many more which will jump out in the workplace. The most effective jeopardy answer in controlling business and government liability is to be able to say, "Alex, what is proactive, positive HR?"


Phil Rosenberg
The HR Doctor


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