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Running head: NAVIGATING THE LEGAL LANDSCAPE OF HPT

 

 

 

 

 

 

 

 

Navigating the Legal Landscape of Human Performance Technology

Sarah Hutchins

Boise State University

 


Table of Contents

 

Abstract.................................................................................................................. 3

The Case for Considering the Legal Implications of HPT................................. 4

Foundations: Federal Laws Guiding Human Performance Practice............... 6

Laws Prohibiting Discrimination..................................................................... 6

Title VII of the Civil Rights Act of 1964 (Title VII)....................................... 6

Americans with Disabilities Act of 1990 (ADA)........................................ 7

The Age Discrimination in Employment Act of 1967 (ADEA)................. 7

The Occupational Safety and Health Act of 1970.......................................... 8

Legal Issues in HPT Practice:.............................................................................. 9

Training Liabilities and Performance Evaluations......................................... 9

Training Liabilities........................................................................................ 9

Mandated training...................................................................................... 10

Inadequate Training................................................................................... 10

Training to Accommodate Special Needs.............................................. 11

Discrimination in Training.......................................................................... 11

Performance Evaluations............................................................................... 12

Copyright Law...................................................................................................... 14

The Copyright Act of 1976............................................................................. 14

Life and Proprietorship of Copyright Protection.......................................... 17

Obtaining Copyright Permission................................................................... 17

Obtaining a Copyright for Original Work...................................................... 18

Conclusion........................................................................................................... 18

 

 

Table of Figures

 

Table 1: Trends in Harassment Charges: 2000-2003....................................... 5

Table 2: EEOC Litigation Statistics: 2000-2003............................................... 5


Abstract

This paper provides further detail regarding the legal issues of which every human performance technology (HPT) professional should be aware, to develop a sensitivity to the legal pitfalls and guideposts in the HPT landscape.

Litigation and judgements resulting from legally indefensible activities in the workplace are financially costly and detrimental to organizational performance. Without an awareness of the legal implications of HPT, a professional can be made ineffective and even detrimental to the performance of an organization.

This paper provides research and discussion regarding: the importance of considering legal implications of HPT; an overview of federal laws guiding HPT; legal issues in practicing HPT (training liabilities and performance evaluation); and copyright law.

 


Navigating the Legal Issues of Human Performance Technology

Human Performance Technologists are not immune to the legal landmines of the human resource profession. Hundreds of local, state, and federal laws govern the fairness of employment in the areas of selection, testing, training, performance evaluation, and workplace environment rights of individuals.

This paper does NOT provide specific legal advice or guidance. This paper DOES provide further detail regarding the foundations of the legal issues that every human performance technology (HPT) professional should know, to develop a sensitivity to the legal pitfalls and guideposts in the HPT landscape. HPT professionals should partner with their colleagues in the human resource law when the need for legal advice occurs.

The following research and discussion includes: the case for considering legal implications of HPT; an overview of federal laws guiding HPT practice; legal issues in practice (training liabilities and performance evaluation); and, finally, copyright laws.

 

The Case for Considering the Legal Implications of HPT

The financial ramifications for organizations whose processes and systems are not in compliance are severe, including possible financial settlement or judgements and the costs of legal counsel. In this litigious society, organizations are becoming increasingly vulnerable. “According to a 1997 survey conducted by the Society for Human Resource management, almost 60% of those polled said that their business had faced at least one employment –related lawsuit during the previous five years. And according to Jury Verdict Research, employers lose these lawsuits a whopping 67% of the time…” (DelPo & Guerin, 2003).

          Employers are responsible for many aspects of the employer’s work life: allowing access to appropriate work, making reasonable accommodations for disabilities, and promoting a healthy workplace. And employers are finding that employees are holding them more accountable for those responsibilities. Harassment is only one example of legal liability issues for organizations. As an example of the increasing accountability of employers to employees, harassment claims alone now account for approximately 18% of all charges filed with the U.S. Equal Employment Opportunity Commission (EEOC), with approximately 15,000 charges filed each year (see Table 1).

Table 1: Trends in Harassment Charges: 2000-2003, number & percentage of total charges

 

 

 

Race

 

National Origin

 

Sex

Race, National Origin, and Sex Combined

 

All Harassment Charges

FY 2000

6,641

8.3%

2,352

2.9%

5,332

6.7%

14,325

17.9%

14,987

18.8%

FY 2001

6,710

8.3%

2,439

3.0%

5,204

6.4%

14,353

17.8%

14,914

18.4%

FY 2002

6,697

7.9%

2,728

3.2%

5,159

6.1%

14,584

17.3%

15,282

18.1%

FY 2003

6,180

7.6%

2,365

2.9%

4,906

6.0%

13,451

16.5%

14,273

17.6%

U.S. Equal Employment Opportunity Commission (2004)

But while the number of harassment charges filed appears to be holding fairly constant over he past few years, the monetary awards are growing rapidly (see Table 2). Of the charges that proceeded to legal proceedings, monetary damages awarded have grown to almost $150 million over the past 4 years.

Table 2: EEOC Litigation Statistics: 2000-2003

 

Monetary Awards, in Millions (by statute enforced)

Title VII

ADA

ADEA

Total Awards

FY 2000

$ 35.1

$ 3.0

$ 11.2

$ 49.8

FY 2001

$ 29.8

$ 2.2

$ 3.1

$ 51.2

FY2002

$ 29.0

$ 12.0

$ 1.4

$ 52.8

FY2003

$ 87.2

$ 2.6

$ 57.8

$ 148.7

U.S. Equal Employment Opportunity Commission (2004)

Consequences of for organizations are not limited to litigation and penalties in the form of financial judgements, however. Additional costs to productivity include employee time spent in preparing documentation and participating in defense, diminished performance from impacts on employee morale, and an impaired ability to recruit and retain employees.

Remaining cognizant of the laws that govern areas of HPT practice are, in and of themselves, a method for assisting in the healthy performance of the organization.

 

 Foundations: Federal Laws Guiding Human Performance Practice

A myriad of local, state, and federal laws govern the treatment of employees in the workplace. This paper begins by examining four fundamental laws that should guide decision-making for the HPT professional: Title II of the Civil Rights Act of 1964 (Title VII), The Americans with Disabilities Act of 1990 (ADA), the Occupational Safety and Health Act of 1970, and the Age Discrimination in Employment Act of 1967. With each summary of the law are general implications for the HPT professional to consider. The implications of these laws will be discussed in more detail in the sections that follow. 

 

Laws Prohibiting Discrimination

Title VII of the Civil Rights Act of 1964 (Title VII)

Title VII generally prohibits any action on the part of an employer that discriminates on the basis of race, color, religion, sex, or national origin. This can include everything from the selection process to training and promotion opportunities. Issues of sexual harassment and discrimination due to pregnancy are also covered under Title VII. The text of the law is summarized as follows:

It shall be an unlawful employment practice for an employer… fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment … limit, segregate, or classify his employees or applicants or employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. (Title VII of the Civil Rights Act of 1964.)

 

Americans with Disabilities Act of 1990 (ADA)

The ADA generally prohibits any action on the part of an employer that discriminates on the basis of a disability that does not impair the employee’s ability to perform an essential job function when provided a reasonable accommodation. The text of the law is summarized as follows:

The ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress. To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. (U.S. Department of Justice, 2002)

 

The Age Discrimination in Employment Act of 1967 (ADEA)

The ADEA generally prohibits any action on the part of an employer that discriminates on the basis of age. The text of the law is summarized as follows:

It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment…to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status… or to reduce the wage rate of any employee because of such individual's age… (The Age Discrimination in Employment Act of 1967).

Some state statues also provide for protections to employees in additional areas such as sexual preference, gender status, and others. Human Performance professionals should be aware of additional statutes in the state(s) in which they practice.

The laws that promote equity and prohibit discrimination have vast implications with regard to many aspects of human performance technology, including the design and implementation of instructional and non-instructional performance interventions. Issues to consider in light of Title VII include equal access to training opportunities, validation of non-bias in testing and materials, and non-biased performance evaluation processes. Issues to consider in light of ADA may include reasonable accommodations for access to training, testing, and materials, and performance evaluation processes based on essential job functions. Implications from ADEA may include equal access to training opportunities, validation of non-bias in testing and materials, and performance evaluation processes based on essential job functions.

 

The Occupational Safety and Health Act of 1970

The Occupational Safety and Health Act of 1970 (OSHA) generally provides for the safety of the employee in the workplace. The text of the law is summarized as follows: The intent of the law is summarized as follows:

To assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health… (Occupational Safety and Health Act of 1970.)

OSHA has implications for the HPT professional with regard to mandated training content (covering prevention, reporting, and response to unsafe conditions) and even the effectiveness of the training conducted. Employers can even be found liable if they have conducted the training, but employees don’t learn how to respond safely. According to Patricia Eyres in a chapter published in the ASTD Training and Development Handbook, this is described as “three employee rights: the right to know, the right to understand, and the right to act”. (Eyres, 1996).  This will also be further detailed in the section on training.

Together, these four laws offer the legal foundation for the HPT professional to use as a framework when considering the legal implications of their professional decisions.

 

Legal Issues in HPT Practice:

Training Liabilities and Performance Evaluations

Federal law can provide a guide for HPT professionals in everyday decisions regarding the implementation of their practice. This section will detail implications for training and performance evaluation.

Training Liabilities

Implications for access, development, and delivery of training arise from all four federal laws. According to Patricia Eyres, writing in the ASTD Training & Development Handbook, there are five primary areas of training liabilities:

1.      noncompliance with mandated training under statute;

2.      civil liabilities for failure to train, inadequate training, and /or common-law negligence

3.      workers’ compensation and personnel-related claims

4.      training that fails to meet special needs of multilingual and/or disabled employees; and

5.      discrimination in training opportunities, content, or delivery (Eyres, 1996)

          We will next look at the implications of some of these liabilities for the HPT professional in daily practice when utilizing training as an intervention.

 

Mandated training.

Not only do organizations need to examine training programs for discrimination or bias, but organizations can also run afoul of the law in NOT providing training. This is most obvious in the  case of OSHA, where employers have a responsibility of training employees in the safe way to prevent and respond to unsafe workplace issues. But another area of growing concern is the area of training on harassment and discrimination. Increasingly, organizations are learning the hard way that this training is also necessary to ensure compliance and defensible practices. According to HR Magazine (a professional journal of the Society for Human Resource Management), “Today, this much is clear: having non-discrimination and nonharassment policies is probably not enough. Increasingly, courts are looking at whether and to what extent the employer uses education and training to prevent harassment and discrimination.” (Willman, 2004). Putting the onus on organizations using phrases such as “reasonable, good-faith efforts” to prevent discrimination and harassment in the workplace, the courts are increasingly demanding that employers provide training in these areas.

 

Inadequate Training.

In addition to mandates to provide particular training, organizations are responsible to ensure that the training provided is adequate to prepare employees to perform the new skills, or as Eyers would describe it “the right to understand, and the right to act” (1996). Courts are examining the training implemented for adequacy in learning and performance, which in some cases includes the opportunity to practice performance within a training. Other issues examined by courts in this area of training liability may include “the scope of the training, the adequacy of the methodology, and/or the qualifications of the instructor” (Eyres, 1996). Opportunities for participants to practice the new skills, and the evaluation of the performance outcomes, becomes critical to a defensibly adequate training program. 

         

Training to Accommodate Special Needs.

Issues regarding training to accommodate special needs are particularly critical, given that some estimates say that nearly 15% of the population have some form of learning disability (Eyres, 1996, p. 193). Under the ADA, these employees are entitled to some form of accommodation in training. This includes accommodations in the areas of training delivery and assessments. New language learners are also entitled to appropriate and effective training in the workplace. The HPT professional must be sensitive to the special needs of participants and document those reasonable accommodations made in the training design and delivery for those with barriers in ability and language. 

 

Discrimination in Training.

Organizations can also be liable if they are found to discriminate in training opportunities, content, or delivery. Equal access to training opportunities is specifically recognized as an employment right in sections of Title VII. The content or methodology of training can also be discriminatory. One obvious example of discrimination imbedded in methodology is this 1994 case, Hartman v. Pena: 

Male employee in three-day diversity training program was ridiculed for refusing to participate in a role-reversal exercise in which male employees walked between two lines of females and were subjected to sexual comments and touching. He ultimately did take part and was groped. This, the court held, may have been severe enough so a reasonable person could perceive the environment to be hostile or abusive. It was a gauntlet experience (Hartman v. Pena, 1995).

This proved to not be a defensible methodology to achieve the learning outcome. In addition to content and methodology, training materials and assessments used must also be free of bias. This should guide the HPT professional in the selection or development of training assessments. Utilizing assessments purchased from reputable outside vendors can be particularly appealing for this reason – developing in-house assessments and validating them can be both time-consuming and prohibitively costly. 

Being aware of the legal issues related to training content mandates, access to training, and methodology, materials, and instruments used can be a valuable tool in limiting training liabilities.

 

Performance Evaluations

Evaluations of performance are an effective tool to assess needs, set goals, and measure the effectiveness of performance interventions. Title VII has implications for implementing defensible performance evaluations. “Increasingly, courts have applied equal employment opportunity legislation and guidelines to performance appraisals, whether used for test validation, promotion, transfer, layoffs or other decisions” (French, 1998, p. 341). In addition to ensuring that tools used to measure performance are free of discrimination and bias due to protected class status, additional legal implications exist for human performance professionals. In his book The Complete Guide to Performance Appraisal, Dick Grote offers these additional guidelines for implementing evaluation systems that help avoid a legal challenge:

·        The performance appraisal should be based on an analysis of the requirements of the job.

·        Performance dimensions should be defined in behavioral terms and supported by observable, objective evidence.

·        Keep it simple (complex forms frustrate managers and allow their biases to overcome their objectivity).

·        Monitor and audit for discrimination.

·        Train raters to assess performance accurately.

·        Train raters to conduct effective appraisal discussions.

·        Encourage a “no secrets/no surprises” environment.

·        Provide for upper management review before the appraisal is reviewed with the individual.

·        Provide some appeal mechanism (Grote, 1996, p. 330-339).

           To be effective and defensible, performance evaluations should be standard and equitably applied, and must ultimately be a true evaluation of the performance, not the performer.

It is not only the performance evaluation itself that can be wrought with legal implications. Courts are increasingly being asked to assess the manner in which performance evaluations are conducted. According to a legal trends report in HR Magazine, employers are finding that “…insult, more than injury, is often what prompts workers to seek revenge in court” (Janove, 2002). Providing evaluation feedback in a way that shows compassion and respects the dignity of the employee can help avoid a potential lawsuit. This is what Janove refers to as “emotional compliance”. Whether or not these lawsuits have merit, the professional is much less likely to face a legal challenge when evaluating an employee’s performance in a respectful, honest manner.

 

Copyright Law

          In the course of professional practice, HPT professionals draw upon the contributions of others in the form of resources, assessments, and other materials. This is inherent in a growing, developing profession. Although it is assumed that using the work of another as a foundation is the ultimate professional compliment (rather than an attempt at theft), the intent of the borrower does not qualify as a legal defense. Copyright laws exist to protect the original work of others, generally emphasizing protecting the work’s owner from financial loss. By following copyright laws in the use or reproduction of protected materials, HPT professionals can both extend the compliment and avoid legal liability at the same time.

 

The Copyright Act of 1976

The Copyright Act generally prohibits the reproduction or distribution of any protected work – that is, the work of someone else. The law outlines the specific types of works protected, and specific protections afforded, and is summarized as follows:

Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works, (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works… the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission (The Copyright Act of 1976).

          The Copyright Act is, therefore, both very comprehensive and very specific. The very specificity of the Copyright Act makes it difficult to keep up with developing technology. A first attempt at developing some forms of protection in light of the use of the Internet resulted in the enactment of the “Digital Millennium Copyright Act” (DMCA) in October, 1998. Almost before the ink was dry on the legislation, DMCA was out-of-date, not keeping up with current technology. The U.S. Copyright Office has been directed to provide guidance to Congress in developing language that will keep up with emerging technologies, while the debate regarding DMCA limiting artistic expression and academic freedom online wages on.

          In addition to the unclear protections of use of copyrighted materials via new or emerging technologies, there are also certain other limitations to copyright protection, the most applicable to HPT professionals being that of  “fair use”.  Fair use is generally defined as use of copyrighted material: 

“for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. (The Copyright Act of 1976).

          Therefore, whether or not copyright permission must be obtained for use can depend upon the character of the material’s use, rather than the material itself. If a professional is in doubt about whether the use of the work falls within “Fair Use” guidelines, copyright permission should be sought or the material not used. When an HPT professional is using materials the materials of others in the course of their professional practice, this will generally be beyond the scope of “Fair Use”, and copyright permission should be sought. Processes for obtaining copyright permission are outlined in a subsequent section. 

          Once an author has obtained a copyright for their work, the copyright has a limited period of validity, depending upon when the work was first created or published.

 

Life and Proprietorship of Copyright Protection

Copyright protection for any work created on or after January 1, 1978 endures for the life of the author/creator PLUS 70 years. Copyright protection for works created prior to 1978 vary in duration, and in some cases can be renewed by the author/creator or by the proprietor of the copyright.

The right to protect one’s work is akin to any other property right, and the copyright can be transferred through sale or through inheritance. Therefore, the copyright protections that remain in effect for 70 years after the author’s demise can be transferred to surviving family members or another beneficiary.

 

Obtaining Copyright Permission

In order to obtain permission to use an author/creator’s copyrighted work, the person with the authority to grant copyright permission must be contacted. In order to do this, the author/creator (or the proprietor of the copyright) must first be identified – not always an easy task when a pen name or pseudonym is used. Additional records can be searched through the U.S. Copyright Office to determine the copyright owner or proprietor.

Once the author/creator (or other copyright proprietor) has been identified, the person seeking permission must contact them to secure written permission. This process may include fees for the use of the material. Once written permission has been granted, a note must be made on any use of the material that it is being used with permission, and include the original author and copyright information.

Obtaining a Copyright for Original Work

Although we have thus far examined the issues involved in getting permission to use the work of others, HPT professionals are also authors/creators of their own intellectual property and therefore both entitled and encouraged to copyright their own original work. Obtaining a copyright is a very simple and inexpensive process conducted through the U.S. Copyright Office.

To obtain a copyright on an original work, the author/creator must submit a copy of the work along with an application form and fee (the fee as of this writing is $30). An applicant need not even provide their legal name; a pseudonym can be submitted with additional documentation – although this does make it more difficult for those seeking to obtain copyright permission to use the author’s work.

All applicable forms and processes for registering a work for copyright can be obtained, as well as copyright records searched, through the U.S. Copyright Office website: http://www.copyright.gov/

 

Conclusion

          This paper has focused on the importance of legal awareness in HPT; an overview of federal laws guiding HPT practice; legal issues in HPT practice (training liabilities and performance evaluation); and copyright laws. Through an awareness of the foundations of the law and their potential influence, HPT professionals can develop sensitivity to potential legal landmines in everyday practice.

          While the laws provide boundaries, they also provide a road map to follow. Laws that provide for equity for members of an organization and protection of an individual’s rights are not a hindrance to our practice; they are guideposts for professional decision-making, and support the goal of positive organizational performance outcomes.

             The ramifications of ignorance of the law can cost an organization and an individual in many ways. Without an awareness of the legal implications of HPT, a professional can be made ineffective and even detrimental to the performance of an organization.

          By understanding the foundations of the laws that govern, and understanding how they apply to our profession, we can safely and effectively navigate the legal landscape of HPT to the ultimate destination: improved organizational performance.  

 


References

The Age Discrimination in Employment Act of 1967. U.S.C. § 623 (1967). Retrieved October 26, 2004, from U.S. Equal Employment Opportunity Commission web site: www.eeoc.gov/policy/adea.html

The Copyright Act of 1976. U.S.C. Title 17 § 701 (1976). Retrieved October 26, 2004, from U.S. Copyright Office web site:  http://www.copyright.gov/title17/92chap1.html#101

DelPo, A. & Guerin, L. (2003). Dealing with problem employees: A legal guide (2nd ed.). Berkeley, CA: Nolo.

Eyers, P. S. (1996). Training and the law. In R. Craig (Ed.), The ASTD training and development handbook (4th ed., pp. 177-202). New York: McGraw-Hill.

French, W. L. (1998). Human resources management (4th ed.). Boston: Houghton Mifflin Company.

Grote, D. (1996). The complete guide to performance appraisal. New York: AMACOM.

Hartman v. Pena, 67 EPD Par.43,990 (N.D.Ill. 1995). Summary retrieved October 29, 2004, from  www.goer.state.ny.us/train/onlinelearning/SH/relevant%20cases.html

Janove, J. W. (2002, May). Don't add insult to injury. HR Magazine, 113-120.

Occupational Safety and Health Act of 1970. Retrieved October 26, 2004, from www.osha.gov

Title VII of the Civil Rights Act of 1964, U.S.C. § 702 (1964). Retrieved October 26, 2004, from www.eeoc.gov/policy/vii.html

U.S. Department of Justice, Civil Rights Division. (May, 2002).  In A guide to disability rights laws. Retrieved October 26, 2004, from U.S. Department of Web Site: www.usdoj.gov/crt/ada/cguide.htm

U.S. Equal Employment Opportunity Commission. (2004, September 10). EEOC Litigation Statistics, FY 1992 through FY 2003. Retrieved October 15, 2004, from U.S. Equal Employment Opportunity Commission Web Site: www.eeoc.gov/stats/litigation.html

U.S. Equal Employment Opportunity Commission. (n.d.).  Trends in harassment charges filed with the EEOC. Retrieved October 15, 2004, from U.S. Equal Employment Opportunity Commission Web Site: www.eeoc.gov/stats/harassment.html

Willman, S. K. (2004, May). The new law of training: training on harassment and discrimination is not a luxury anymore. HR Magazine, 115-118.