EFFECTIVE ADMINISTRATOR TRAINING
THROUGH EMPLOYMENT CASE STUDIES:
LEGAL CONSIDERATIONS
22nd
Stetson University College of Law
National Conference on Law and Higher Education
Monday, February 19, 2001
Sheila Trice Bell
Bell & Trice Enterprises, Inc.
Washington, DC
I.
Introduction
Court decisions and state and federal laws and regulations change the landscape
of employment law on a regular basis—thus changing the legal risks, which face every
college and university administrator1. In addition to administrators’ challenging daily
programmatic responsibilities, they must also take the time to learn the effects that new
court decisions, laws and regulations have on the employment relationships which they
administer. The two major goals of this paper are 1) to illustrate the importance of
effective, timely continuing professional education of college and university
administrators regarding evolving employment law practices; and 2) to provide useful
suggestions for effective education programs for administrators.
The semantics of
professional education can sometimes alienate members of academe who may consider
the term “training” unrelated to the professional education of college and university
administrators.
For the purpose of this paper, the term “training” encompasses
professional development education designed to assist administrators and other
employees learn techniques that minimize or reduce legal risk while also improving
management skills. In addition to the term “training,” examples of other terms for
employee education programs include
“symposium.”
“orientation,” “workshop,” “seminar,” and
In the final analysis, an effective professional education program
regarding the legal requirements for proper administration of employment relationships in
Throughout this paper, “college and university administrator” encompasses administrators for the full
range of postsecondary education institutions, e.g. four-year, two-year, public, private, comprehensive
doctoral institutions.
1
academe is essential for a well-managed college or university environment that achieves
its educational mission.
II.
Training is Required – Explicitly and Implicitly
A.
Federal Requirements
Several Federal and state laws and regulations mandate training for recipients of
public funds, public employers (in some instances with explicit reference to public
universities and community colleges), as well as employers with a threshold number of
employees. Examples follow of federal training requirements pertaining to employment
law that affects colleges and universities.
1.
General Duty Clause of the Occupational Safety and Health Act of 1970, Section
5(a) (1). The Act requires that employers conduct safety training for employees.
The Federal Occupational Safety and Health Administration (Fed – OSHA)
administers the Act and promulgated guidelines that serve as criteria for a
successful safety and health management program. The guideline that evolved
from the General Duty Clause gives employers a template for employee training
programs by describing the design, methods of conducting programs and
evaluations, and method for revising programs. It is interesting that at the end of
the 1990’s the U.S. Department of Labor’s Bureau of Labor Statistics reported
that safety training is the area of the highest percentage of training activity per
employ in the nation2.
2.
The Drug Free Workplace Act (DFWP) requires that employers who receive
federal grants or contract with the federal government inform their employees of
the hazards from using illegal drugs. Employer who receive grants must certify
that they will provide a drug free workplace and a drug free awareness program.
Employers who contract with the federal government for contracts of at least
“The Emerging Law of Training,” by Garry G. Mathiason and Mark A. de Bernardo, Federal Lawyer 24,
25 (May 1998)
2
2
$100,000 must “agree” (rather than the former, more onerous requirement that
they “certify”) to provide their employees with drug free awareness training.3
3.
The “Drug Free Work Force provision of 48 CFR Section 252.223-7004 requires
the creation of a program that promotes the existence of a drug free work place
for the purpose of having a drug free work force. Supervisory training to attain a
drug free work place is a regulatory requirement.
4.
Institutions that receive federal funds are required to execute Program
Participation Agreements.
Such agreements contain an array of institutional
certifications including certifying that the individuals who serve as the
institution’s representatives for administration of the federal funds are prepared to
fulfill their duties.
These individuals are called “principals.” The explicit
requirement of certification of principals places an implied duty on colleges and
universities to prove that principles know and comply with federal requirements.
Information regarding requirements for administration of federal funds may be
conveyed in a variety of ways to the principals. However, the education process
must leave the principal sufficiently informed to perform his/her duties relative to
proper grant administration. In order to minimize liability to the institutional
recipient of federal funds, the institution must be able to show its good faith
efforts to comply with federal requirements. An effective training program can
demonstrate that named principals know the legal standards for compliance with
receipt of federal funding. This demonstration can be evidence of the college’s or
university’s good faith efforts to comply with federal law.
In addition to
demonstrating good faith efforts to comply with federal laws, institutions should
be able to demonstrate actual compliance with federal laws. The importance of
such evidence cannot be overestimated when colleges or universities face claims
for liability under federal laws. (See Section C, below.)
3
Id.
3
5.
The December 20, 2000 amendments to the Federal Acquisition Regulation
4
(FAR) constitute a federal final rule that amends FAR criteria for awarding
federal grants and contracts for the Department of Defense, the General Services
Administration, and the National Aeronautics and Space Administration. The
successful contractor must “[h]ave a satisfactory record of integrity and business
ethics including satisfactory compliance with the law” in five areas “including tax
law, labor and employment laws, environmental laws, antitrust laws, and
consumer protection laws.” (Underlining added) 48 CFR Part 9.104 -1. Section
9.104 - 35 of the final rule states further that “(t)his determination can be made by
examining a prospective contractor’s record of compliance with the law.”
Information that contracting officers must consider in making a determination of
integrity and business ethics includes convictions or civil judgments for fraud or a
criminal offense in connection with obtaining or performing a Federal, state or
local public contract or subcontract.6 Other related criminal offenses are listed as
a basis for deciding not to award a contract to a prospective contractor.
Moreover, federal contracting officers are instructed that they “should give
greatest weight to violations of laws that have been adjudicated within the last
three years preceding that (contract) offer.7 However, they “must consider all
relevant credible information.”8 The earlier proposed regulations published in
June, 1999 specifically mentioned training as a measure of compliance with the
regulations. The final rule did not mention training explicitly. However the
requirement of providing training in some form is implicit in the reference to
satisfactory compliance with specific laws. Colleges and universities that receive
public funds should consider the strategic implications of FAR requirements on
their efforts to inform their administrators, faculty and other employees about
statutory and regulatory requirements for federal and state contractors.
4
65 Fed. Reg. 80256, 48 CFR Parts 9, 14, 15, 31, and 52.
48 CFR Part 9.104.3(c ) (1)
6
48 CFR Part 9.104.3(c) (1) (i)
7
Small Entity Compliance Guide summary of amendments to FAR. 65 Fed. Reg. 80266.
8
Id.
5
4
B.
State Requirements
Several states require that specific employers provide sexual harassment training
programs for their employees. These state statutory requirements are summarized in the
article “The Emerging Law of Training” by Garry G. Mathiason and Mark A. de
Bernardo, 45 Federal Lawyer 24, 26 (May 1998). Examples of state sexual harassment
training requirements are:
1.
Connecticut -- training for all supervisory employees of all public and private
employers with 50 or more employees.9
2.
Tennessee -- training must be conducted by every state agency, including state
universities and community colleges.10
3.
California -- training required within a specified time for each new law
enforcement officers. Training may also include other topics. Furthermore, all
continuing law enforcement officers must have sexual have sexual harassment
training.11
4.
Illinois – all state agencies must conduct training.
There are also content
requirements.12
5.
Maine -- all employers (public or private) with 15 or more employees must be
trained. Moreover, supervisory and managerial employees must have additional
training designed to make them more responsive to such complaints.13
6.
Utah -- all state departments must have such training and regulations describe the
content of programs as well as the selection process for trainers.14
Given these state-mandated training requirements, it is prudent to check the law
of one’s state for any and all requirements of training related to employment and labor
law issues. Indeed, accepting grants or entering into contracts with any state or local
governmental entity may carry explicit or implicit training requirements which the
9
Conn. Gen. Stat. Ann., Sec. 46a-54 (West 1995).
Tenn. Code Ann. Sec. 4-3-1703 (1996).
11
Cal. Penal Code Sec. 13519.7 (West 1996).
12
Ill. Ann. Stat., ch. 775, Sec. 2-105 (B) (5) (Smith-Hurd 1995).
13
Me. Rev. Stat. Ann., title 26, Sec. 807 (West 1995).
14
Utah Admin. R. Sec. 477-16-7 (1995).
10
5
recipient of the grant or contracting entity will be expected to know and to conduct as a
condition of the agreement. One must also research the sanctions for non-compliance
with such requirements.
Sanctions may have both institutional and personal
consequences.
C.
Case Law Standards
In 1998 and 1999 the United States Supreme Court decided three cases with
important implications for employees relative to allegations of illegal discrimination.
Training programs may provide employers with assistance in mitigating damages in
discrimination litigation.
In 1998 the U.S. Supreme Court decided two sexual harassment companion cases
that established an affirmative defense for employers in some cases in which a supervisor
harassed a subordinate. In Faragher v. City of Boca Raton, 524 U.S. 775, and Burlington
Industries v. Ellerth, 524 U.S. 742 (1998) the Supreme Court established standards for an
employer’s liability for the sexual harassment of an employee by a supervisor. The
standard for liability included an affirmative defense that the employer might be able to
present to mitigate liability. The elements of the Supreme Court’s holding were: 1) an
employer is subject to vicarious liability to an employee who has been the victim of an
illegally sexually hostile environment created by a supervisor with authority over the
employee; 2) if the victim of sexual harassment suffered no tangible job detriment such
as demotion or loss of employment, then; 3) a defending employer may raise an
affirmative defense to liability for damage. The affirmative defense has two required
elements: a) the employer exercised reasonable care to “prevent and correct” promptly
any sexually harassing behavior; and b) the victim reasonably failed to use any
preventive or corrective opportunities provided by the employer or to take other action to
avoid harm. For the purpose of considering the necessity of training, employers must
remember that the Court gave an affirmative defense to employers who exercise
reasonable care to prevent and correct promptly any sexually harassing behavior.
6
In 1999 the Supreme Court fashioned additional parameters for affirmative
defenses available to employers in discrimination suits. In Kolstad v. American Dental
Association, 527 U.S. 526 (1999) the Association faced liability because it did not
promote a female candidate to a director position. After the jury at the trial level found
liability on the part of the association, the trial court did not allow the jury to consider
punitive damages. The Supreme Court reversed on the issue of punitive damages by
articulating a standard for imposing punitive damages. However, the Court articulated a
defense for employers by allowing employers the opportunity to provide proof of their
efforts to encourage supervisors and managers to comply with the law. The Court limited
employers’ vicarious liability for the “discriminatory employment decisions of
managerial agents where these decisions are contrary to the employer’s ‘good faith
efforts to comply with Title VII’.”15 The Court also spoke with favor about employers’
dual efforts of adopting anti-discrimination policies and educating their personnel about
the law’s requirements.
Lower level courts in subsequent cases16 have used these Supreme Court
standards as the basis for decisions regarding the role of training or the lack of adequate
training to determine the liabilities of employers in various discrimination cases.17
After the 1998 Faragher and Burlington Industries cases, an article in the Federal
Lawyer magazine proposed that a new body of law had developed around the issue of the
need for training.18 The authors supported their proposal by mentioning the duty to train
and the duty of care required for reasonable administration of training programs.
The standards for reasonable training programs will vary depending upon the topic of the
training, the audience and the work environment, as well as statutory or regulatory
15
Kolstad v. American Dental Association, 527 U.S. 526, 545
See Hurley v. Atlantic City Police Department, 174 F. 3rd 95, 118, 119 (3rd Cir. 1999), cert. denied 120
S.Ct. 786 (2000).
17
For a good discussion of the role of training in the determination of employer liability as well as
suggestions for good training programs, see a paper prepared by Ann H. Franke, United Educators Risk
Retention Group Vice President for Risk Management and Education, entitled “Training on Employment
Discrimination: New Legal Mandates and Getting Started.” The paper was presented at the 40 th Annual
Conference of the National Association of College and University Attorneys in June 2000 and is available
on the United Educators website at the following URL: http://www.ue.org/training/NACUA_2000.htm.
16
7
requirements and case law. However, the legal recognition of the need for training
programs is unambiguous. In addition to the statutes, regulations and court decisions,
above, other court decisions address the need for effective training [See, EEOC v. WalMart Stores, Inc., 187 F. 3rd 1241 (10th Cir. 1999)]; the need for sufficient training [See,
Miller v. Zee’s, Inc., 31 F.Supp. 2d, 792, 803 (D.Ore. 1998)]; and the general issue of the
sufficiency of training [See, Hurley v. Atlantic City Police Department, 174 F.3 d 95,
118, 119 (3rd Cir. 1999), cert. Denied 120 S.Ct. 786 (2000)].
D.
Lessons Learned from Statutes, Regulations and Court Decisions
The general lesson to be learned from explicit and implicit training requirements
is that effective, timely training is not a luxury – it is a necessity for all colleges and
universities. Even litigation-free higher education institutions must provide training that
is mandated by law.
In today’s litigious environment, administrators, faculty and staff
are effectively flying blind in their respective professional duties if they do not know how
to identify high risks of liability and to perform their duties in ways that minimize the risk
of liability to their institutions and themselves.
College or university-sponsored
professional education about best practices to minimize risk is a necessary complement to
other programs designed to enhance administrators’, faculty members’ and staff
members’ skills related to their core duties.
A specific lesson learned from recent court decisions is that well-designed and
well-administered programs can be adjudged to be reasonable efforts to prevent and
correct discriminatory behavior. The words “prevent and correct” were used by the U. S.
Supreme Court to describe the standard of good faith effort that the Court weighs in its
calculus of liability. If the facts persuade the Court that an institutional defendant’s
training programs are designed to prevent and correct illegal practices, then training is an
affirmative defense that can serve to avoid or mitigate liability. Without some form of
training, it is difficult to demonstrate a systematic and widespread pattern of behavior on
18
Op. Cit., Mathiason and de Bernardo
8
the part of the institution or its representatives to prevent illegally discriminatory
behavior and to correct instances of illegal discriminatory behavior.
Another important lesson is the necessity for effective training. Form without
substance—that is instituting a training program that does not convey accurate
information or that does not effectively engage the attention of program participants—is
likely to create more difficulties for institutions. It will be interesting to see how the
concept of “a law of training” develops.19 It is already clear that inadequate training does
not assist in mitigating employer liability. Therefore, colleges and universities need to
evaluate and to re-evaluate their training needs as a matter of strategic importance. Then
institutions need to prioritize and implement training programs.
II.
Effective Training
For many years the business sector, rather than academe, took the lead in training
its employees on a wide variety of topics.
In the business sector, training is a vast
industry and has been described as America’s “shadow educational system.”20
Illustrative of the importance and size of the training industry is the information
contained in two websites that are focused primarily on needs of the business sector: the
Training Site (http://www.trainingsupersite.com/); and Training Media Review
(http://www.tmreview.com/).
This paper and the companion paper and case studies by my co-presenter, Mary
Stevens, focus on training relative to employment law issues. Nevertheless, it is helpful
to consider some general information regarding training or professional development.
The range of training topics and audiences is broad. However training programs may be
organized simply into a few general categories: Policy and procedure training; skills
training; management skills training; and human interaction skills training. Policy and
procedure training is the provision of essential policies and procedures information and
19
20
Op. Cit., Mathiason and de Bernardo, 28
65 Fed. Reg. 80256, 48 CFR Parts 9, 14, 15, 31, and 52.
9
background information about the employing institution or department in which an
employee works.
Examples of policy and procedures information training are:
orientation of new staff; workshops for faculty regarding policies and procedures that
pertain to their employment relationship with the college or university; and other
information needed to understand the environment of the employing institution. Training
that prevents and corrects illegally discriminatory behavior is also a form of policies and
procedures training.
Skills training focuses on providing employees with specific
information that assists them in performing the specific duties of their positions.
Examples include: safety training; software use training sessions; or continuing
professional education for licensed professionals. Management skills training is designed
to provide skills that assist administrators by improving their supervisory skills.
Examples of such training include: management training; leadership training; team
building; and motivational skills. Human interaction skills training enhances employees’
ability to work effectively in their employment environment. Examples of such training
include organizational and communications skills training. Educational programs for
employees may combine elements of these general categories of training.
Fortunately, in recent years more colleges and universities have initiated training
programs for administrators, faculty, staff and students.
The increase in training
programs appears to be the result of high-profile judgments against college and
universities and increased regulation of higher education by state and federal
governments.
Irrespective of the reasons for campus-based training programs, the
presentation of professional education programs that are legally and administratively
sound is a necessary and positive trend. As you consider training needs and opportunities
for your institution, remember that administrators at all levels in the institution are
essential keys to the success of training programs.
commitment to essential professional education.
strategic component of the institution’s activities.
Administrators set the tone of
Effective training must become a
Colleges and Universities must
dedicate resources for training because regular, prophylactic training helps employees
perform their core duties with more confidence and less stress arising from uncertainty
about legal requirements surrounding employment and other issues. Effective training is
10
a companion to good policies as evidence of an institution’s good will efforts to prevent
and correct illegal discriminatory behavior.
The list of colleges and universities with regular training programs is growing.
Some examples of comprehensive programs for administrators (and for administrators,
faculty and staff) are:
1) Arizona State University. For over a decade, ASU has conducted regular
professional development programs that apprise administrators of their duties
and ways to mitigate liability. See the companion paper, “Administrator
Training with Case Studies: The ASU Model” by Mary C. Stevens for an
informative and helpful description of this fine professional education
program that has received national recognition.
2) In the fall of 2000 the University of Washington system initiated a systemwide program of training for administrators, faculty and staff. A description
of the Strategic Leadership Initiative program can be viewed at:
http://www.washington.edu/admin/traindev/slpintro.html#cost.
3) The University of New Mexico developed a system-wide training for
employees regarding civil rights matters. The training is mandated by the
state and information regarding the program may be viewed on the
University’s
website:
http://www.unm.edu/~hrinfo/Eod/workshops/civilrightstrng.htm.
4) The University of Miami developed various training programs for employees.
On-line descriptions of courses are on the university’s website at:
http://www.miami.edu:80/UMH/CDA/UMH_Main/1,1770,2421-1;15693,00.html.
11
Other examples of college and university training programs are listed in Ann
Franke’s paper regarding legal requirements for training and referenced in footnote 17 of
this paper. United Educators Insurance Risk Retention Group provides a helpful list of
other
training
resources
in
its
on-line
Training
Resources
Guide:
http://www.ue.org/training/Resource%20List.htm.
III.
Conclusion -- Checklist
Producing effective training for administrators, faculty and staff is an important
requirement for every college and university. Whether you are building your training
programs or re-evaluating them, the companion papers regarding the ASU Model and A
Practical Guide are designed to assist you in implementing effective programs. Also, the
following checklist is designed to inform and remind you as you consider the issue of
training program development, implementation and assessment.
Checklist

Commit yourself and your institution to training that is designed to comply with legal
requirements, reduce risk and assist both academic and non-academic employees in
developing skills that will assist them in performing their duties for the institution.

Have clear goals for the program.

Remember that commitment requires the realistic allocation of resources.
Realistically budget funds and human resources for training on an annual basis. As
you budget, remember the adage “pay now or pay later” and be proactive. Also
remember that statutes, regulation and court decision have raised the standard for
substance and timeliness of training requirements

Become familiar with your institution’s current training education resources and
requirements.

Identify departments with needed expertise and political clout for successful
planning, implementation and evaluation of training programs. Successful training
programs are interdepartmental projects.
12

Schedule regular training on required topics every year.

Remember that the ever-changing legal standards and staff turnover necessitate
continual training programs.

Decide who would be the best internal and/or external trainers. For internal trainers,
make sure that the trainers are trained to assure successful programs.

The presenters and participants should be prepared and motivated to learn.

Develop training that complements your institution’s mission, culture and areas of
vulnerability.

Determine the mode of training that will serve your department and institution best.
For example, will a combination of lecture, case study discussions and on-line
presentations reach everyone and meet training needs?

While you are evaluating your training needs, make sure that underlying institutional
policies and procedures are adequate.

Decide the desired employee participation level. Everyone who needs to be trained
should be trained.

Establish incentives or sanctions that are most likely to yield desired participation
levels and learning. For example, if all employees (faculty, administrators and staff)
must attend a program, will the departments and employees receive budgetary
rewards and/or sanctions?
Mandatory attendance can be very controversial –
especially for faculty. However, training that is mandated by an outside entity must
be completed. Engage representatives from every major institutional constituency
who can advise on the best solution to the attendance and related issues.

If an agency or court order require certain training, be certain that the training meets
all the requirements for the training.

Training should be enjoyable as much as possible. Plan a program with a positive
message, even when the general topic is unpleasant, e.g. sexual harassment training.

Remember that a college or university, like a military unit, moves on its stomach.
Include good food and beverages in your programming.

Group participants together who are likely to learn well together. For example,
determine whether some programs should be designed exclusively for administrators
or faculty or staff.
13

Make and keep appropriate records of your training program. Consult with your inhouse or outside experts (e.g. human resource staff, attorney for the institution,
training staff) on the programs your are offering.

What is your institution’s return on its investment (ROI) in training or what is the
expected ROI, e.g. reduced number of claims against the institution, improved
employee participant performance on training assessment instruments, clearer and
more positive communication among employees.
14