Don’t Just Do It

By Stephen M. Paskoff, Esq. ELI, Inc.

A top insurer of business losses recently indicated that lawsuits are on the rise not only in the United States but globally. Among other prescriptions for limiting this business risk, the insurer emphasized the significance of workplace training. I could not agree more. However, the question asked too infrequently is, how do we accomplish this result?

Consider the irony of the rise in employment-related lawsuits. Compared to 10 years ago, workplace training has dramatically increased. Yet we continue to see examples of fraud, misconduct, and other unprofessional and illegal acts.

Each major scandal prompts firms to wake up and do something, do anything, to prevent such abuses from happening again. Consequently, there are now hot lines, investigative units, systems, processes, documentation plans, ongoing audits, and a mass of other complex functions to eliminate workplace behavioral issues such as discrimination, harassment, retaliation, wage and hour violations, and other offenses. Still, with all these measures in place, lawsuits continue to rise.

So it seems that a lack of awareness, a lack of training even, is not the problem. The problem is that the training does not produce results. How, then, should we design training to maximize results? In these crimped financial times, every dollar spent on compliance measures must maximize a return on the investment. Unfortunately, this doesn’t always happen. Instead, educational efforts are often ill conceived, wasteful, and, ultimately, of questionable effectiveness.

In Place, But Ineffective

Compliance training seeks to satisfy regulations that require training, specify its content, and provide defenses for properly structured content. In addition, it seeks to provide information that will change patterns of behavior in the workplace. These two objectives are related but separate, and often we emphasize the former so heavily that we obscure the latter in the process.

Effective compliance learning must focus on changing behavior. It should stress not only defense but also prevention. Compliance learning for prevention includes two key learning principles:

• We must change the behaviors that spawned the underlying regulations.
• We must recognize, communicate and correct problems that arise.

Unfortunately, hasty and spasmodic reactions to a crisis or a new regulation quickly shift the focus from impacting conduct and preventing violations to simply communicating information as rapidly as possible and documenting the communications without analyzing whether they actually change behavior.

This will, we tend to think, satisfy the regulators and staunch the weight of future claims. As a result, we frequently hear individuals complain that although they have fulfilled every requirement in terms of training, they still deal with basic violations. Somehow their well-intentioned, legally correct messages just don’t get through.

We hear a similar refrain from leaders who are amazed that recent participants in major policy and learning implementations profess not to understand or even recognize the precise subjects the training just taught them. “We told them and taught them,” we hear. “How could they not understand or not remember?”

The problem is not that organizations are providing inaccurate information; in fact, they can meet the technical requirements of the most complex training regulations but still find their efforts have little workplace impact or compliance value. No, the problem is simply this: employees forget or ignore key lessons.

This occurs for a variety of reasons. Some people’s learning styles do not mesh with the training methodology; others fail to identify and retain the key principles of the training. Finally, and far too often, many participants never experience learning reinforcement on the job.

No Excuse

As evidenced in the United States Federal Sentencing Guidelines, which address ways that organizations can minimize penalties for criminal conduct, the underlying purpose of employment issues training is to prevent, detect, and correct wrongdoing internally, from within the organization, rather than externally, through legal claims and lawsuits.

When Congress passed the Civil Rights Act of 1964, it intended that voluntary compliance should form the cornerstone of the law. Lawmakers expected organizations to adapt their practices to the new law’s requirements barring workplace discrimination on the grounds of sex, race, religion, national origin, and color. They expected employers whose practices did not comply with requirements to remediate those practices on their own initiative or engage in conciliation with the Equal Employment Opportunity Commission. Lawmakers never intended the outcome of this groundbreaking act to be a mass scramble to defend litigation.

More than 40 years have passed. At one point, the prohibitions of Title VII were novel. I recall explaining principles of non-discrimination and harassment to managers and leaders in the late ‘70s and early ‘80s. They did not understand the risks in certain common practices such as overt verbal behavior, disparate treatment, and retaliation; more to the point, they did not understand that their behavior was illegal.

That era has long passed. Where problems exist now, particularly egregious ones, they do not stem from a lack of knowledge. Mangers cannot credibly claim ignorance. There is no excuse for unlawful, non-compliant behavior.

As organizations work for compliance, some of the adopted measures address only half the issue. Because of the lawsuit defense benefits of compliance training and the specificity of some regulations, the training often focuses on building legal defenses to claims and meeting the technical specifications of compliance training regulations. Both are necessary, but giving them exclusive focus skews the interpretation of what compliance training should accomplish.

As an example, in the area of employment practices, the all-consuming emphasis on addressing legal parameters causes many organizations to use training to document their compliance with baseline legal requirements and to build the elements of a lawsuit defense rather than to effectively influence workplace behavior.

Do not misunderstand. Compliance training activities have significantly impacted illegal practices that were common in workplaces a generation ago. But let’s face it: many of these practices have largely disappeared. While limiting legal damages and claims in cases where there would otherwise be significant costs is critical, the more critical issue is to eliminate the underlying behavior in the first place. To do this, though, requires a different focus, a focus on whether the training really works instead of whether or not the training simply occurred.

Knowing Does Not Equal Doing

In attempting to address issues such as discrimination, harassment, and similar employment claims, many employers have focused on providing compliance training with the idea that if employers give a workforce accurate information, it will prevent problems. The answer to this is yes… but.

That is, lack of knowledge is only one reason why individuals do not adapt their conduct to organizational requirements. How we deliver, reinforce, and practice learning determines whether the training meets compliance’s true objectives: to prevent, detect, and correct problems.

In fact, the workforce often ignores legal principles back on the job not because they do not understand them but because individuals consciously choose to dismiss or ignore what they learned. Providing accurate information, even if engagingly delivered, won’t address this issue.

In particular, this problem arises when legal expertise drives learning initiatives without the input of other professionals and business disciplines such as education specialists, human resources, and organizational development. The legal role is vital, but often the focus on the accuracy of the content, a non-negotiable requirement, seizes control of the implementation. When this happens, the learning ignores what must be taught and what must be remembered to change behavior on the job.

With input from professionals who specialize in understanding how people learn and behave, employment training becomes a means of transforming how people think and act instead of an exercise in meeting compliance requirements. Once employees experience a real change in the way they and their co-workers think and act, they embrace the concept of preventing, detecting, and correcting problems in order to protect the positive environment they are enjoying on their jobs.

Their heightened awareness helps them identify potential problems; their commitment to the compliant culture encourages them to correct bad behavior. Finally, the organization moves from a reactive to a proactive posture. Prevention becomes a reality

Training for Results

Learning must serve the true purpose of compliance, which is to produce results rather than simply to do something. The following list of considerations, from simple to more complex, identifies whether training on legal issues meets both the letter and the spirit of regulations.

• Is the training legally accurate? Does it cover the essential requirements to build an affirmative defense, limit punitive damages, and cover regulations? This is a simple baseline standard. Maybe there is a case that found the legal accuracy of training content to be an issue, but it is the exception. Explaining the law is not a complex task. Where organizations have provided training and violations still occur, I have yet to find a case where the problem was the inaccuracy or inadequacy of the information provided.
• Does the format maximize retention of key principles? Most of what we learn – some estimate as high as 90% – we forget within 30 days. Further, much of what we forget is forgotten in the first hours of our learning experience. Making learning memorable is a key to making sure it is applied. Here, less is better than more. We should distill whatever we teach in any compliance field into a few simple principles. The more information we teach, the less information participants will remember and apply.
• Are the key principles meaningful to the learners? We can all recall engaging presentations that kept our attention, but that was all they did. Learning must not only engage participants during the experience but also integrate with their core workplace values. Adults learn by having an emotional connection to what they learn. If the experience does not provide that, participants will forget much of what they hear.
• Does the instruction relate to the learner’s real world? Learners must see that the learning really means something on the job. Too often we focus on the dos, the don’ts, and the legal risks without explaining the relevance of the principles and the impact of compliance. Compliance with standards for how we should treat each other has tangible benefits, benefits tied to productivity, effectiveness, retention, or similar business exigencies. For the instruction to be relevant, learners must understand and embrace these business benefits.
• Does the training present learning as a means to an end or the end itself? Frequently, organizations see delivering workplace learning as all they must do to be in compliance. We completed the training; we’ve got the defense. While having the defense is important, it is a poor substitute for avoiding the need for defense in the first place.
• Does the learning transfer back to the job as an ongoing responsibility? True learning transfers to what happens on the job. To have lasting impact, participants must translate their learning into daily responsibilities. Moreover, they must periodically repeat the learning and reinforce it in a variety of day-to-day settings.
• Is the learning part of an executive leadership vision linked to the values of the organization? Employees should see that their learning connects to the vision and values of the enterprise. Not surprisingly, they look to executives and senior management for this affirmation. If employees cannot see that the entire organization values compliant behavior, the learning initiative will produce limited effects.

Increasingly, organizations recognize that compliance systems must include education and training. Managers and employers now take a wide range of courses dealing with issues such as harassment, anti-trust, foreign corrupt practices, fraud, and environmental practices. Employees attend classes, log on to their computers for online instruction, and attend webcasts. Meanwhile, their employers document these learning efforts to ensure that the organization meets compliance requirements.

Learning opportunities abound; information sits at our fingertips. Now we must take the next step, the most meaningful step. It’s time to shift the focus from meeting compliance requirements to embracing compliance as an organizational value. It’s time to ensure that all this information actually changes behavior patterns and produces measurable results, results that transform the workplace from within.

Stephen M. Paskoff, Esq., is president of ELI ®, a training firm that helps clients translate values into behaviors, increase employee contribution, build respectful and inclusive cultures, and reduce risk. Prior to establishing ELI ® in 1986, he was a trial attorney for the Equal Employment Opportunity Commission and partner in a management law firm.