Volume 7, Issue 10

Blackwater Accidents Raise Legal Questions Regarding Private Security

Blackwater USA, the private security firm who has been under contract by the US State Department to provide security for diplomats, has been under intense scrutiny for its role in the shootings of 14 Iraqi citizens in a firefight last month. The particulars of the incident are not clear: the Iraqi government contends that Blackwater guards opened fire on Iraqi citizens in a main square in Bagdad, while Blackwater insists that its guards were provoked. Regardless, the issue of using private security for military purposes or operations becomes a significant one. Specifically, what laws would a private contactor fall under for committing a crime against a foreign national, even if that contractor was working for the US government in wartime?

The incident occurred when after months of criticism of the State Department's security practices in Iraq as a whole, and of Blackwater's role in those practices. Blackwater agents have been involved in 56 shooting incidents in Iraq in 2007 alone. U.S. lawmakers have been seeking clarification of the somewhat nebulous jurisdiction and authority under which Blackwater and other State Department private security firms work, especially with regard to criminal conduct. On Thursday, October 4, 2007, the House of Representatives passed legislation that would place all private government contractors in Iraq under U.S. criminal statutes. The Senate will take up the bill in the coming weeks.

Blackwater has approximately 1,000 employees in Iraq currently, and operates under a $1.2 billion contract with the State Department.

Recent Study Provides More Support for Organizations to Provide Harassment Training to their Employees

A recent study conducted by American University's Kogod School of Business revealed that employees who received harassment training were no more likely to file a lawsuit than those who did not receive harassment training. The study was conducted using graduate students who were employed, but had never received any training on harassment. The participants were originally given a questionnaire that asked for their response to various workplace scenarios involving harassing behaviors. Half of the participants were then given harassment training, while the control group was not. Subsequently, the entire population of the study was given an identical questionnaire to the one previously completed. Caren M. Goldberg, the professor who designed the study, reported that there was no difference in the questionnaire results as to how many individuals would consult with legal counsel. Furthermore, she revealed that in general, the information gathered suggested the reason the individuals in the study stated they would escalate their complaints to the judicial system were motivated by their own personal experiences, not the degree of training they received regarding employees' rights in the workplace.

This encouraging study lends more support for organizations to justify training their employees on harassment in the workplace. While there are many other resources available to employees, such as the media and the internet, where employees can learn about their legal rights, it may be more beneficial for the organization to train the employees internally. In 1998, the U.S. Supreme Court concluded that organizations can use the training they provide to their employees as an affirmative defense to harassment claims by demonstrating that the organization tried to communicate knowledge and resources to its employees to prevent harmful situations. Additionally, providing internal training for employees gives organizations the opportunity to emphasize the particular policies they have in place and give employees the chance to ask questions, as well as demonstrate that the organization cares about their well being.

Travel Tip: More U.S. companies are insuring key employees against kidnapping. Criminals here and abroad are increasingly targeting American business travelers and taking them for ransom. Coverage can be tailored to include death, injuries, and ransom money. A thousand dollars buys a $1,000,000 policy. HR professionals and CSOs should ask their risk managers for more information.

Governmental Agencies: Anonymous Hotlines and Open Records

Since the Sarbanes Oxley legislation of 2002, thousands of public companies have implemented anonymous hotlines to uncover allegations of employee misconduct, especially fraudulent, financial, and accounting in nature. Although it may not be a requirement, many private organizations as well as colleges, universities, and governmental agencies have also implemented these hotlines as best practices to identify potential misconduct within their organization or institution.

Most governmental agencies and institutions are subject to different laws than their business counterparts, one of which is the open records or "sunshine" laws. Open or 'public' records provide the ability for anyone to request public documents from a government agency or municipality. This law was established in 1966 via the Freedom of Information Act (FOIA) to not only hold the government accountable, but to make the government activity transparent to the public.

Each state has essentially adopted its own version of open records laws. For instance, Colorado has enacted the Colorado Open Records Act (CORA). CORA applies to virtually all levels and types of government agencies within Colorado and 'public records' include books, papers, maps, photographs, tape recordings and electronic mail, among other written materials.

One may ask, "are reports filed through governmental anonymous hotlines subject to open records?" The simple answer is "yes". The custodian handling the request may hold back a report if the allegation is still under investigation or if there is particular information in the report protected or allowed to remain confidential, such as personnel records. While each state may have more exemptions or restrictions built into their open records laws, in most circumstances, hotline reports would be subject to a public records request. This holds true regardless of the method of submission of a whistleblower or other report of misconduct - hotlines, suggestion boxes, email, mail, or voice messages would all be subject to open records laws in the same way.

The benefit of putting a hotline in place, however, tends to far outweigh the need to hand over these records if a request actually occurs. For instance, a tip leading to an investigation uncovering a $20-30k fraud or kickback scheme by an employee would far outweigh the costs to implement such a hotline. Moreover, if employees know a hotline is in place, the hotline itself can often serve as a deterrent to workplace misconduct in the first place.

Recently, several newspapers, under the auspices of the open records laws, have requested access to hotline reports to 'test' the validity and usefulness of the hotlines. To their credit, the papers have acted responsibly and have not published specifics on any particular report but rather overall statistics showing the amount of reports received. As confidential reporting of workplace misconduct becomes more entrenched in today's work environment, it is likely we will see these open records laws modified to strike a better balance between protection of the reporting party and the report content and the public's right to know about government expenditures for reporting systems.

Quote of the Month: "A person is never happy except at the price of some ignorance."

--Anatole France (1844 - 1924)

Body Art and Tattoos: Is Your Policy Adequate?

The Journal of the American Academy of Dermatology recently published a study that revealed about half of all people in their 20s have a tattoo or body piercing (other than earrings). Combining this statistic with the reality that employees in their 20s are the future leaders of the American workforce, employers should be paying increased attention to their dress code policies, as minor and straightforward as such policies may seem.

Employers may fear that strictly defining what is considered acceptable grooming and appearance in the workplace may expose them to legal liability. The reality is, however, that, provided your policy does not discriminate against the members of any protected class (such as women or members of particular religious groups), your exposure is limited. In fact, most body piercings and tattoos are not considered to be constitutionally protected free speech, nor are they generally protected under federal discrimination laws. If you can articulate a legitimate business purpose, your policy can restrict the size and placement of visible tattoos; your policy can require employees to cover offensive tattoos; and your policy can direct employees to remove visible body piercings.

Personnel Policy Service, Inc. recommends that your dress code policy contain the following elements

• Articulate business-related reasons for the basis of your policy. It is perfectly acceptable to base your policy on the organization's need to maintain a positive public image.
• Require your employees to be well-groomed while representing the company. Don't be afraid to specify what is and is not considered acceptable.
• Create employee awareness of your policy. You cannot expect employees to comply with a policy that is not readily accessible or available to them. Be sure to communicate your dress code policy, just as you would your policy against drug use, workplace violence, or theft.
• Your policy should be applied to all employees equally.
• Be sure to make reasonable accommodations for circumstances that require it. For example, some religious practices or disabilities may require you to allow tattoos or facial hair that may otherwise violate your policy.
• Enforce discipline for violations consistently.

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