Category Archives: legal issues

NLRB: Grad Students Are Employees

In a 3-1 decision, the National Labor Relations Board has ruled that graduate students working as research and teaching assistants at Columbia University are statutory employees covered by the National Labor Relations Act.

As the Washington Post reports, the ruling overturns a 2004 Brown University decision, in which the NLRB said graduate students engaging in collective bargaining “would undermine the nature and purpose of graduate education.”

The decision, which clears the way for these grad students to join or form unions, opens the door “to the full panoply of rights provided under collective bargains, and the effect will change the relationship between private sector universities and their students,” Joseph Ambush, a Boston-based attorney who filed the brief on behalf of the schools involved in this case (and who represented Brown in 2004), told the Post.

Philip Miscimarra, who offered the lone dissenting opinion in the Columbia case, voiced concerns that allowing students to collectively bargain could “wreak havoc” on their education, given the potential for strikes and lockouts, according to the paper.

That’s not all the decision could do.

Earning recognition as employees means that grad students working in teaching or research capacities “can bargain for larger stipends and better health coverage, especially if they have children,” according to the Post. “It also means they can get basic protections, such as unpaid leave.”

The ruling “could be huge,” says Laura Hung, a doctoral candidate in anthropology at American University. Hung, now working as an adjunct professor, told the Post that she’s making roughly the same salary (around $19,000) that she earned as a teaching and research assistant in her most recent academic year.

“The vast majority of my colleagues are swimming in student debt,” notes Hung, adding that her wages are “barely enough” to cover her $1,000 rent each month, and “certainly not enough” to pay for the health insurance offered by the university.

“The way things are right now obligates students to take out large amounts of debt to eat and live,” continues Hung. “There are students who are not going to find jobs that pay enough to pay that back.”

This struggle is real among young workers outside of academia as well. Pay attention, employers.

As HRE notes in an upcoming feature in our Sept. 2 print issue, the number of recent grads buckling under the weight of massive student loan debt is only growing. Recent data from the Plan Sponsor Council of America, for instance, finds 69 percent of students graduating college in 2011 and 2012 borrowed money to finance their educations, compared to 49 percent of 1992 and 1993 college graduates.

Some employers are recognizing this trend, and are responding. As we report in the aforementioned Sept. 2 piece, for example, Nvidia Corp. is helping its youngest workers start off their careers on the right financial foot.

Designed to help employees repay student loans up to $30,000, the Santa Clara, Calif.-based technology company’s Student Loan Repayment program is open to all full- or part-time employees who have graduated within the past three years and are working 20 or more hours per week and provides monthly reimbursement up to $500 or the worker’s monthly payment amount, whichever is less.

Applicable to various types of loans—Federal Perkins loans, private student loans and subsidized Stafford loans, for instance—the repayment program also helps employees who go back to school for an advanced degree.

Beau Davidson, vice president of human resources at Nvidia, describes the effort as a “bridge program” geared toward helping recent grads transition into the working world.

“This kind of assistance might help them get started in an apartment, put a down payment on a car, and get themselves situated and ready to work,” says Davidson. “It’s one less stressor to worry about.”

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Supporters of E-Cigs Fight Back

There’s some real pushback under way to what I was thinking had become a generally agreed-upon vice worth eradicating from our streets, public arenas and workplaces: e-cigarette vaping.

470456691--vapingMy eyebrows were raised on Friday when I came across this release from the National Center for Public Policy Research announcing an amicus brief that had just been filed by the NCPPR and TechFreedom in support of an earlier challenge to the Food and Drug Administration’s war on vaping.

Specifically, the initial challenge that got a major boost on Friday was filed by Nicopure Labs, a manufacturer of e-cigarette liquid, against the FDA’s Deeming Rule, which was finalized in May. That rule would force e-cigarette manufacturers to undergo an expensive and time-consuming premarket tobacco-application process unless their products were on the market prior to the predicate date of Feb. 15, 2007. As the NCPPR release puts it:

“The high cost of the application process means most e-cig businesses will be forced to shut down, eliminating choices of dramatically safer alternatives to combustible cigarettes, which will leave smokers with fewer options to compete against the most harmful form of nicotine consumption, [again,] combustible tobacco.”

It also states that:

“The FDA’s Deeming Rule fails to consider the scientific evidence readily available to the agency regarding the safety and the public health benefits of e-cigarettes.”

Is it just me or is this the first time you’ve read anything about the “public health benefits of e-cigarettes”?

I love how this guy, Tom Remington, on his blog post, compares  choosing between e-cigs and tobacco to choosing between Donald Trump and Hillary Clinton. Mind you, I’m not 100-percent sure what position he’s taking here (something tells me he’s anti e-cigs … and don’t ask me to even hazard a guess as to who he plans to vote for), but his quote is pretty fun:

“Having a discussion about whether or not e-cigarettes are more healthy than real tobacco-product cigarettes is akin to deciding which crook, Hillary or Donald, should get your vote. Would you rather die from e-cigarettes or from tobacco? Would you rather get screwed and further forced into slavery by Hillary or Donald?”

For a much more complete and sobering look at why clamping down on the e-cigarette business isn’t necessarily a good thing for health but IS a big victory for Big Tobacco, read this opinion piece on the Washington Post site by Jonathan Adler. Here’s just one compelling thought to come away with, as Adler writes it:

“With the new FDA rule, Big Tobacco is getting just what it wanted. … [A]s a consequence of the FDA rule, the e-cig market will shrink, and Big Tobacco will be in a better position to dominate what’s left. A vibrant competitive market will be replaced with a cartel, much like the one we see in the cigarette market.”

So what does all this have to do with HR? Probably not as much as other topics we’ve raised here, but I do know many of you are grappling with your smoking policies, and many of you have opted to lump vaping in with the rest of your organization’s prohibited activities.

I guess this might just give you something more to think about as you go about drafting or enforcing such a policy … like who’s hands you might be playing into(?) Or where the real truth lies(?) If, indeed, these things are so much healthier than cigarettes, for all concerned, and can help move the quitting process along, are you sure you want to deny your employees any and all access(?)

Maybe just put all this in your pipe and smoke it(?) (Sorry.)

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Eliminating the ‘Mad Men’ Mind-set

Less than two weeks from today — August 15 — federal contractors that work with the U.S. government will need to comply with modernized rules when it comes to sex discrimination in the workplace.

According to the Office of Federal Contract Compliance Program’s fact sheet, the revisions will bring the “guidelines from the ‘Mad Men’ era to the modern era,” as well as protect women and men from discrimination on the job.

The U.S. Department of Labor is publishing new sex discrimination regulations that update – for the first time in more than 40 years – the department’s interpretation of Executive Order 11246 to reflect the current state of the law and the reality of a modern and diverse workforce.

“Updated rules on workplace sex discrimination will mean clarity for federal contractors and subcontractors and equal opportunities for both men and women applying for jobs with, or already working for, these employers,” the department said in a release.

“We have made progress as a country in opening career opportunities for women that were, for decades, the province of men. Yet, there is more work that lies ahead to eradicate sex discrimination. This is why it is important that we bring these old guidelines from the ‘Mad Men’ era to the modern era, and align them with the realities of today’s workplaces and legal landscape,” said director of the Office of Federal Contract Compliance Programs Patricia A. Shiu.

The final rule updates OFCCP’s sex discrimination regulations to make them consistent with current law. It makes explicit the protections against compensation discrimination; sexually hostile work environments; discrimination based on pregnancy, childbirth or related medical conditions; and discrimination based on unlawful sex stereotypes, gender identity, and transgender status. The regulations also promote fair pay practices.

The rule implements Executive Order 11246, which prohibits companies with federal contracts and subcontracts from discriminating in employment on the basis of sex.

But before the new rules take place, says Brett Draper, a partner at Alston & Bird’s labor and employment group:

“[E]mployers should review current policies to determine what changes should be made to processes in order to keep up with new regulations and ensure compliance.”

The new rules add to the growing employment obligations imposed on federal contractors through various guidelines and regulations, adds Clare Draper, also a partner with the law firm.

“While the OFCCP seeks to minimize discrimination in the workplace through these expanded requirements, the burden on businesses to comply grows as well. Businesses should take immediate action to protect themselves from exposure that can arise through OFCCP compliance reviews, class actions and other legal actions.”

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Don’t Get Blindsided by Family-Leave Laws

Ever wonder what a typical case of family-responsibility discrimination involving elder care might look like? Consider this 538047854 -- elder carescenario laid out in a piece by Tom Spiggle that posted on the Huffington Post in June:

“You have an elderly parent who suffers from Alzheimer’s. He requires continuous care. You have worked at the same job for five years with a strong, positive work history. To better care for your father, you move him out of assisted living into your house. A paid caregiver takes care of him during the day, but leaves at 6, which means that you have to be home then.

“Your performance at work remains strong, but you are no longer able to take part in the informal after-work get-together frequently arranged by your boss. After missing these for a month, your boss stops by your office to ask why. You tell him. He responds ‘How long will this go on?’ You tell him maybe years. After this, things change at work. For no apparent reason, your boss begins to criticize your work. At one point, HR puts you on a performance-improvement plan.

“Although you do everything they ask and more, nothing seems good enough. One day, your father falls at your house, breaking an arm. You have to leave work early to get to the hospital and miss work the next day. You call HR, letting them know what happened and put in for [Family and Medical Leave Act] leave to cover the absence. When you return, the axe falls; you get fired. The last communication you receive from your boss is an email: ‘I’m sorry it had to end like this. You will be missed. I hope that this gives you the time that you need with your father.’

“That would be discrimination under the Family Medical Leave Act and the Americans with Disabilities Act.

Granted, his piece speaks primarily to employees, but there are some nuggets worth reviewing for employers, such as a little-known fact (little known by me anyway) that some bosses seem fine and accommodating with the first child, “but their attitude is that one child should have been enough,” writes Spiggle, an employment lawyer and founder of the Spiggle Law Firm, based in Arlington, Va.

(Note to anyone reading this who considers this a familiar occurrence in his or her organization: Time for some manager training!)

Here’s another nugget: Employees claiming they were discriminated against or weren’t accommodated under family-leave law have much stronger cases if they ask for the law’s protection while they’re still working for you. Spiggle elaborates (remember, this is directed at employees, so interpret between the lines):

“Let me give you an example. Suppose that your boss says that you are a shoo-in for a promotion. Before things become official, you announce your pregnancy. Next thing you know, the promotion goes to a man who is your junior. When you confront your boss, she shrugs and says, ‘Them’s the breaks. Next round.’ Let’s suppose things only go downhill from there and you get fired, even though your performance remained unchanged.

“Here’s the thing: If you had complained about being skipped over for the promotion because you were pregnant before you were fired, you’d have a second claim of retaliation, which is easier to prove and gives you more leverage.

“There’s also a chance that, by reporting your concerns, you might get the problem fixed. Sometimes companies do the right thing when they learn that a rogue manager is violating the law. By reporting what happened, you give the company a chance to fix it.”

Probably the most telling piece of information he shares though — as does Mark McGraw in this HRE Daily post from May — is the fact that the number of family-responsibility-discrimination cases are going way up. McGraw and Spiggle both cite a report, Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016, showing a 269-percent increase in the number of family-responsibility-discrimination cases between 2006 and 2015.

Many of our news analyses have also mentioned this increase and the fact that far too many employers still don’t seem to get it when it comes to proactively turning that trend around.

Consider this a reminder, then, to get your anti-family-caregiver-discrimination house in order. And make sure you’re up on the nuances involved, including who has what rights and when — and precisely what this form of discrimination looks like.

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The Cost of Not Accommodating Caregivers

Some employers “still aren’t getting it when it comes to discriminating against employees with family responsibilities.”

So says Joan C. Williams, founding director of the Center for WorkLife Law at the University of California, Hastings College of the Law, in a recent statement highlighting findings from a new UC Hastings study.

And, judging by some of the statistics found in said study, it’s hard to argue that she has a point.

The report, Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016, analyzed 4,400 family responsibilities discrimination cases that were filed in the United States between the years 2006 and 2015.  Report author Cynthia Thomas Calver looked at employees’ claims alleging discrimination based on their status as a pregnant woman, mother, father, or a caregiver for a sick or disabled family member or an aging or ill parent, and found a 269 percent increase in the number of such cases filed in that 10-year span, compared to the prior decade.

While you’re digesting that number, chew on these facts and figures to emerge from the UC Hastings report:

  • Claims for FRD have been filed in every U.S. state.
  • Cases involving eldercare have increased 650 percent in the last 10 years.
  • Pregnancy accommodation cases have gone up by 315 percent.
  • Though the number of claims remains small, suits in which an employer is alleged to have denied accommodations or discriminated against an employee because she was breastfeeding or needed to express milk during the workday has risen by 800 percent.
  • Male employees have brought 55 percent of spousal care cases, 39 percent of eldercare cases, 38 percent of FMLA cases and 28 percent of childcare cases.
  • A clear majority of employees are succeeding with family responsibilities discrimination suits, with workers winning 67 percent of the FRD claims that went to trial from ’06 to ’15.

Naturally, these claims are hitting American employers pretty hard in the wallet. FRD litigation cost U.S. companies $477 million over the past decade (compared to roughly $197 million from 1996 to 2005), according to the WorkLife Law report, which suggests that the actual amount is “likely to be significantly higher, as many settlements are confidential.” These figures “also fail to capture the ripple effects of discrimination, including employee attrition and related replacement costs, damage to the company’s public reputation and reductions in the morale and productivity of all employees.”

The report also lays out some steps for preventing family responsibilities discrimination within the organization, such as providing supervisor training, adopting anti-discrimination policies that include family responsibilities, activating HR-run oversight programs and ensuring that the company’s procedures for responding to employee complaints address FRD.

In the aforementioned statement, Calvert, a senior advisor to the Center for WorkLife Law, stresses the importance of adapting to America’s evolving workforce and families, and the cost of failing to do so.

“Until employers adjust to the realities of families with all adults in the paid workforce and a significant growth in the number of older Americans who need assistance from their adult working children, it’s unlikely we’ll see a decrease in the number of cases filed.”

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New Trade Secrets Law: The HR Angle

It’s incredibly rare these days for a proposed law to receive near-unanimous backing in the U.S. House and Senate but, by George, our nation’s politicians managed to pull off this miraculous feat recently, which culminated with President Obama affixing his signature yesterday to the Defend Trade Secrets Act.

The new law puts trade secrets on par with patents, copyrights and trademarks, which are already protected under federal law. The Defend Trade Secrets Act provides a “uniform set of rules for trade secret protection” throughout the United States (although it does not replace trade secret laws passed by individual states). The upshot is that companies whose trade secrets were violated in multiple states can now file suit in a federal court rather than trying to determine which state may (or may not) provide the best legal remedy.

Trade secret claims have long been a key component of employee non-compete agreement lawsuits, writes Chris Marquardt, a partner at Alston & Bird’s labor and employment law group. For this reason, the new federal law “not only gives employers another tool to protect their confidential business information, but will also likely shift many routine employment-agreement lawsuits into the federal court system,” he writes.

Employee non-compete agreements can vary widely from state to state and the new law is written in such a way as to recognize that “the statute should not override state laws” on such agreements, Marquardt writes. However, he adds, “only time will tell how broadly federal courts interpret the new law and how willing they are to use it to prevent employees from accepting new jobs in competition with a former employer.”

Brett Coburn, also a partner with Alston & Bird, writes that one of the less-frequently discussed aspects of the new law is one that will impact nearly all employers: “The law grants both criminal and civil immunity under both federal and state trade secrets laws to individuals who disclose a company’s trade secrets to the government” if the person has reason to suspect that a legal violation has occurred. It also requires employers to notify employees of this immunity “in any agreements that govern the use of trade secrets or other confidential information.”

To ensure compliance, Coburn writes, HR leaders and legal counsel will need to reexamine their company’s restrictive covenant and nondisclosure agreements, as well as policies regarding the protection of confidential information and employee whistleblower activities.

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Employee Handbooks Under Scrutiny

OK, pop quiz: What’s the difference between these two employee-handbook policies?

  1. “Be respectful to the company, other employees, customers, partners, and competitors.”
  2. “Each employee is expected to work in a cooperative manner with management/supervision, co-workers, customers and vendors.”

One, according to the National Labor Relations Board, is legal. The other is not. (I’ll tell you which was which in a minute.)

Don’t fret if you have trouble seeing the difference. That’s why we have lawyers. And that’s why there’s plenty of work for them as the ThinkstockPhotos-517631808NLRB cracks down on employee-handbook language — including provisions that once were standard — that it says is too broad.

In a series of rulings the agency has told companies to revise policies that infringe on rights of workers — unionized or not — to talk to each other about the company in person or through social media.

“Employers are really waking up to this,” says Lauri F. Rasnick, a member of the firm at Epstein Becker Green of New York. “For a long time, nonunionized employers didn’t give a lot of thought to NLRB decisions.”

The U.S. Chamber of Commerce contends the effort is part of an anti-employer crusade. In a highly critical December report titled “Theater of the Absurd: The NLRB Takes on the Employee Handbook,” the trade group argues that the agency “has undertaken a campaign to outlaw heretofore uncontroversial rules found in employee handbooks and in employers’ social media policies.”

Worse, according to the chamber: the NLRB’s guidance to employers often is contradictory, creating “a morass of confusion that leaves employers wondering just how they are to exercise effective control over their workplaces.”

Rasnick agrees. “I do think that’s part of the challenge for employers,” she says, noting that NLRB decisions aren’t always consistent. And they are continuing to evolve, with confidentiality provisions attracting more scrutiny in recent rulings, she says.

The latest headline came this month after an administrative law judge ruled that Quicken Loans and five related companies had illegal rules in its employee handbook, which it calls “The Big Book.” (Despite the Quicken name, the companies are not owned by software company Intuit; they’re led by Dan Gilbert, majority owner of the Cleveland Cavaliers.)

To the untutored eye, many of the rules seem pretty standard stuff. An example: “Think before you Tweet. Or post, comment or pin. What you share can live forever. If it doesn’t belong on the front page of The New York Times, don’t put it online.”

The problem with this rule, wrote judge David I. Goldman in his April 7 ruling:  Although the policy doesn’t tell workers they can’t bad-mouth the company online, “an employee considering this suggestion would reasonably feel chilled by this rule from expressing negative (but protected) information” about the employer.

The companies are appealing the decision to the full board. But there’s little indication that the NLRB is letting up on the effort.

Back to our pop quiz. Of those two employee-handbook policies, the first (“be respectful”) is illegal, according to the NLRB’s general counsel. The second (“work in a cooperative manner”) is OK.

The problem is in telling workers they must be “respectful” to management, as well as customers and others, wrote Richard F. Griffin Jr. in a memo last year. An employee might reasonably see that as a ban on complaining about the company, he wrote.

The second example is legal, Griffin wrote. “Employees would reasonably understand that it is stating the employer’s legitimate expectation that employees work together in an atmosphere of civility.”

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The DOL’s New Fiduciary Rule

The new fiduciary rule issued yesterday by the Dept. of Labor, which is designed to address conflicts of interest among financial advisers, will require HR departments to review their arrangements with vendors that provide retirement-plan services, say experts.

“The definition of ‘fiduciary’ is being expanded, and HR will need to determine if they have vendors that will now fall under this category,” says Robert Kaplan, associate attorney in Ballard Spahr’s employee benefits and executive compensation group.

The rule is designed to protect the best interests of retirement-plan participants and sponsors by applying the “fiduciary standard” to all those who provide investment advice in order to prevent conflicts-of-interest, which the White House Council of Economic Advisers says costs retirement savers $17 billion a year.

In many cases, vendors that provide services for employer-sponsored retirement plans that hadn’t been fiduciaries before the new rule – such as broker-dealers, mutual-fund representatives, etc. – will be considered fiduciaries once the new rule takes effect (it goes into final effect on April 1, 2018, with a “transition period” starting April 1, 2017). HR will need to carefully evaluate all advisers that provide services to their organization’s retirement plans to determine whether they’ll now be considered fiduciaries, says Kaplan.

For example, many 401(k) record-keepers offer “reach out” campaigns targeted at plan participants (including former employees who still have accounts in the company plan) who may be considering whether to rollover funds from a 401(k) plan into an individual retirement account. Today these services only need to meet a “suitability” standard, says Kaplan; under the new rule, they must meet the fiduciary standard.

Much of the compliance duties for the new rule will be handled by vendors and record keepers, says Kaplan. However, in a few instances HR may encounter vendors that refuse to recognize that they will now be considered fiduciaries – in such cases, HR will need to terminate the relationship, he says.

“There are some less-than-reputable vendors that don’t want to be held to the fiduciary standard, and they will probably be driven out of the business,” says Kaplan.

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Key Lessons from the Tyson Decision

ThinkstockPhotos-485982240I’m sure many of you have now read or heard about the Supreme Court’s Tyson vs. Bouaphakeo decision on Tuesday upholding a Court of Appeals decision in the Eighth Circuit,  which sides with Tyson workers at an Iowa pork-processing plant.

The employees’ main grievance was that they did not receive mandated overtime pay for time spent “donning and doffing” protective equipment.

In its attempt to reverse the judgment, lawyers representing Tyson took aim at the case’s class-action status, making two arguments. First, they argued the class should not have been certified because the method used to prove injury assumed each employee spent the same time donning and doffing protective gear. Second, they argued that certification was improper because the damages awarded to the class could be distributed to individuals who did not work any uncompensated overtime.

In delivering the majority opinion (6-2), however, Justice Anthony Kennedy wrote that …

“A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes—be it a class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.”

In this instance, Kennedy said, the court’s holding is in accord with the 2011 Wal-Mart v. Dukes decision, which supported the blocking of a class-action against the retailer.

Yesterday, I asked Patrick Bannon, a partner in the Boston office of Seyfarth Shaw LLP, to share his assessment of the Tyson decision.

It’s pretty narrow, as SCOTUS decisions go, he said, because it’s largely based on the fact that it accepted a study by an expert hired by the plaintiff as valid evidence, but it didn’t really look at the particulars of the study. “They assumed,” he said, “that it was valid because the defendant hadn’t challenged the study. In a case in which an employer challenges a study with shaky statistics and not good evidence, the outcome could have been quite different.

“If there’s a cautionary tale here for employment attorneys,” Bannon said, it’s be careful of plaintiff lawyers bearing statistics.

Asked if HR leaders should be doing anything differently in light of the decision, Bannon noted that it does raise the question as to whether employers should be tracking donning and doffing time, even if it’s time employees don’t need to be paid for. “That’s a question HR folks should at least be thinking about,” he said. “It’s not always right for every workplace to try to measure tasks that you don’t think are really work, but if it turns out that it really is work and you were wrong about it, then you start down the road that Tyson Foods was on.

“If you’re an employer with a lot of employees who are all doing a repetitive task every day—and if there’s a way to measure what they’re doing that’s not too intrusive or confusing—then I’d be thinking about it,” he said.

Other employment attorneys noted that the case took on additional importance because of its connection to the Wal-Mart ruling, in which the Court rejected the use of statistical evidence to provide a pattern of discrimination.

Seth Rafkin, a partner in the New York and San Diego offices of Cooley LLP, pointed out that …

“The key threshold at issue in the Tyson and Wal-Mart cases was whether the positions and work experiences of class members were sufficiently similar such that the statistical evidence based on [a] sample of class members could reasonably be relied on as representative of the experience of other class members. In the Wal-Mart case, the Court found that the positions and experience of class members was so diverse that the statistical evidence could not be relied on as representative of the class’ experience. In contrast, the class in the Tyson case all worked at the same facility, performed similar work and were subject to the same policy.”

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Internal Investigations are Getting Longer

Patience may be a virtue, but HR leaders shouldn’t expect their employees to necessarily see it that way when it comes to the increasing number of days it’s taking employers to complete internal investigations.

ThinkstockPhotos-470406181As some of you may recall, my colleague — Kristen Frasch — posted details on Friday from NAVEX Global’s 2015 Europe, Middle East, Africa and Asia Pacific State of Compliance Programmes Benchmark Report. In it, NAVEX reported that, on a global scale, boards are not getting regular compliance reports from their ethics and compliance officers.

Well, here’s an even newer report from NAVEX that sheds light on the time it’s taking these days to respond to open internal-investigation cases.

In its 2016 Ethics and Compliance Hotline Benchmark report, NAVEX reveals that the timeline for internal investigations is continuing to lengthen. More precisely, companies took a median of 46 calendar days to close such cases, up from 39 days in 2014 and 32 days in 2011.

HR, diversity and workplace-respect cases, in particular, jumped to 47 calendar days, up from 37 days in 2014. (These cases represented 71 percent of the 867,551 reports — at 2,311 client organizations — in NAVEX’s database.)

Needless to say, this doesn’t bode well for employers that want to keep employee morale high and limit how often employees take their complaints outside their organizations. Who needs the EEOC knocking on your door, right?

Asked what’s driving these longer timelines, Carrie Penman, chief compliance officer and senior vice president of advisory services for NAVEX Global, pointed to several factors.

In a poll conducted during a client webinar held by NAVEX last week, Penman said, roughly 46 percent of the respondents cited a lack of resources as the primary reason. “Resources are simply not keeping pace with the volume,” Penman pointed out. Case complexity turned out to be the second-most-mentioned driver in the poll.

Penman said some of the respondents specifically mentioned the global nature of many of the cases and the more frequent involvement of legal counsels as important drivers. (She said roughly 1,000 individuals participated in the webinar, with about six in 10 taking part in the polling.)

So what should HR leaders be doing about this lengthening time frame?

Penman hopes many will use these findings to hammer home the need for additional resources. As far as her clients are concerned, she said, she advises them to “record all of the issues they are working on in a central database so they can get a holistic picture of what’s going on in their organizations” and can, in turn, make a stronger case for more support.

Among other disturbing findings in the more recent NAVEX report: Workers are apparently skipping an internal remedy and taking retaliation claims outside their organizations. Despite the noticeable rise in retaliation claims being taken up by the Equal Employment Opportunity Commission in recent years, they continue to represent less than 1 percent of all reports in NAVEX’s database.

“People are simply not giving their organizations a chance to address their concerns and are instead taking them outside … ,” Penman said.

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