Business Controls, Inc. Appoints New President

On April 4, 2007, Steve Foster, CPP, PCI, and Chief Operating Officer was promoted to President of Business Controls, Inc., a top-tier risk mitigation and consulting firm. Mr. Foster is a former law enforcement officer with over 22 years experience in risk mitigation and crime prevention. Mr. Foster’s unique and diversified background brings forth a combination of crime prevention, consulting and training skills. His areas of expertise include corporate compliance and ethics, information security, and workplace investigations. He is Board Certified in Security Management (CPP designation) and a Professional Certified Investigator (PCI designation).

Mr. Foster has spoken throughout the United States on criminal behavior and workplace crime prevention. He is a frequent guest on television and radio. He has worked with many of the Nation’s largest organizations in the development of corporate ethics and compliance programs, enterprise security strategies and emergency plans. “His courage, loyalty and enthusiasm are contagious. I know of no one else in the industry better suited to bring our organization to the next level and guide our vision than Steve,” says Eugene F. Ferraro, CEO and founder.

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Utilizing Third Party Investigators in Workplace Investigations

Historically, conventional workplace misconduct investigations have been handled by an organization’s Human Resource Department, Internal Security, or General Counsel. However, increasingly, organizations are recognizing that in many cases, the most effective investigations are those that are conducted by impartial third parties. Why? Over the years there have been a variety of challenges to organizations, both by employees and through litigation alike, premised upon their ability, and in some cases, willingness to be completely objective in their business and investigative processes. When considering whether or not to utilize a third party it is important to take into consideration four elements.

First, impartiality and objectivity: ensuring that the outside firm has no stake in the outcome and can direct the investigation with no preconceived notions. Second, perception of neutrality; that is, often times employees believe that the investigator is biased and pro-management. Frequently, this perception occurs when the investigator is a member of management, or the organization’s general counsel. While the outside investigator is retained by the organization, the effective investigator will be able to portray a necessary element of neutrality and fairness that management and its counsel can not. Third, professionalism and experience: outside firms that specialize in workplace investigations will likely have significantly more expertise than either an in-house staff member or an outside attorney who does not specialize in employment law.

In addition, it is critical to ensure that the outside firm is knowledgeable of the workplace and can use his knowledge of the workplace to draw out the facts of the case. Lastly, statement of seriousness: when organizations bring in an outside firm to conduct an investigation, it demonstrates the serious nature of the issue(s) at hand and communicates to those individuals involved that the organization is taking the matter very seriously. In addition to the aforementioned, the Equal Employment Opportunity Commission (EEOC) has issued its Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, which spells out specific guidelines related to the necessary skill sets of the individual who conduct the investigation, and the necessary objectivity that the investigator has regarding the collection and consideration of the relevant facts. The next time your organization has workplace misconduct issues arise, weigh the pros and cons of conducting the investigation internally versus externally, and consider utilizing an independent third party, which specializes in conducting workplace investigations.

Click here for additional information related to the EEOC’s Enforcement Guidance.

Tip: When considering utilizing a third party, make sure to research the firm and be sure to request references. Credible firms will be able to provide references!

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Professional Organizations: Maximizing the Benefits

Regardless of the industry you are in or the career path you have chosen, there are associations and organizations that can help you professionally while benefiting your company.

Before deciding which organizations or associations to join, determine your goals for joining (what do you want to get out of your participation) and see if these goals align with your company goals. Are you looking to simply network and gain new business, learn from others and be educated, provide education and training – or do you really want to make a difference in your profession?

In addition to researching online, most organizations have monthly meetings which you can attend as a guest or for a nominal fee to see if it is a good fit with your goals. You will also have the opportunity to meet current members and ask what they get out of their membership. This one-on-one networking is a great benefit of joining an organization as people are more open to hear about what you do and what your company does. You will uncover opportunities for your own company as well as learn about additional resources, current trends, and other marketplace trends in your industry.

One common mistake people make is joining a professional organization but not participating as an active member. Your membership fees will be wasted if you don’t attend regular meetings and seek out ways to become more involved. Your involvement could include joining a planning committee, becoming a board member, or offering your time for speaking engagements. Taking on these additional responsibilities helps your personal credibility and provides awareness of your own company’s products or services.

After you’ve decided which organizations to join, setting an action plan can be beneficial. Schedule the events you plan to attend so they become a priority and not a hassle when your schedule gets busy. Also, if budget permits, see what meetings or events have sponsorship or speaking opportunities. Even if you’ve been a member of an organization for many years, you should re-evaluate the situation on an annual basis. If you’re unable to participate, save your membership fees and rejoin an organization at a later date. Check out your options for professional development and prosper along with your peers!

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Supreme Court Watch -- Pending Cases That May Affect Employers

As this U.S. Supreme Court's 2006-07 term nears its end, several important employment cases remain to be decided. We review four cases, including one just decided, that may impact your workplace.

The Court will hear oral arguments on April 18 in BCI Coca-Cola Bottling Co. v. EEOC. This case will answer the critical question of when a company is liable for the discriminatory motive of a supervisor, when the person who actually made the adverse employment decision had no discriminatory intent. In this case, a supervisor with a reputation for treating black employees differently, told a decision-maker that a black employee had refused to work and had called in sick.  Based on the information from the supervisor, and without conducting a sufficient independent investigation, the decision-maker terminated the employment of the black employee. The EEOC sued the employer on behalf of the former employee, asserting that the company was responsible for discrimination even though the decision-maker held no discriminatory animus. Liability under this "cat's paw" or "rubber stamp" scenario has been disputed by the circuit courts, and can be highly important for a company that has centralized its decision-making with Human Resources or other management personnel. Employers with centralized decision-making have to be very careful with relying upon input from supervisors and will have to spend more time and energy in conducting good faith and adequate investigations.

In Ledbetter, Lilly v. Goodyear Tire & Rubber Co., the Court will decide whether an employee may extend or disregard the time period within which to challenge a discriminatory pay decision. Under Title VII, an employee has either 180 or 300 days (depending on the state) from the adverse employment action to file her complaint, or else she loses her right to challenge the action. For a disparate pay claim, that adverse employment action is typically related to the issuance of a paycheck or the decision by a manager related to a raise. In this case, however, the employee was unaware that she was being paid substantially less than her male co-workers throughout her 19 year career until just before she retired. The Court will determine whether the employee is entitled to claim back pay for the term of her career, or only for the time period within 180 days prior to her claim. The Court heard oral arguments in this case last November.

The issue of a labor union's ability to use non-members' agency fees for political activities without their consent will be decided in Davenport & Washington v. Washington Education Assn. In this case, employees who are not members of the Washington teachers' union have agency fees for the union deducted from their paychecks. The Court will decide whether the union may use those agency fees for political activity, or whether it must obtain the non-members' consent before using the money. The Court heard oral arguments in January.

Finally, the Court just announced its decision narrowing a whistleblower's right to recover under the False Claims Act in Rockwell International v. U.S., ex rel Stone. The False Claims Act allows individuals to file fraud claims on behalf of the government against companies that do business with the federal government. If the individual prevails in the lawsuit, he receives a portion of what the company is ordered to pay the government. The Court's ruling established a more rigorous requirement for a whistleblower to share in the proceeds by showing that the whistleblower was the "original source" and had direct and independent knowledge of the information on which the fraud allegations are based. The increased scrutiny of these cases may level future whistleblower claims.

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Social networking sites, such as MySpace and Facebook, have quickly become the hotspots of the internet, and employers are taking notice. There appears to be an increasing trend in employers using these sites, as well as other various internet “hangouts,” to gather additional, and possibly more private, information about applicants. A survey by business social network Viadeo, released in March of 2007, found that one in five employers reported that they had turned to the internet to find information on job applicants, with 59 percent of those stating that what they had found influenced their hiring decisions. Also, 25 percent of human resources decision makers reported that they had rejected applicants based on personal information found online.

The recent increase in the use of social networking sites by employers has begun to raise concerns over the legality of this practice. George Lenard, a lawyer specializing in labor and employment law, examined three primary legal concerns for organizations choosing to utilize social networking sites as tools in making employment decisions. He highlights three legal areas in which employers should be cognizant of, including: discrimination laws, invasion of privacy restrictions, and terms of service violations.

The use of the internet by an employer to check on only specific types of applicants, for example, only checking applicants of a certain race, can be evidence of unlawful discrimination. Lenard also warns that organizations may be at fault of discrimination if the information collected is viewed with a discriminatory bias, thus affecting the evaluation of the candidate.

In order for an employer to invade the privacy of an applicant, the applicant must show that he / she had a “reasonable expectation of privacy” in regard to the information posted online. This requirement is often not met, as most individuals have an understanding that access to their profiles may be limited, but they do not reasonably expect information to be kept private. But employers can be faulted for privacy invasions if they hack through privacy measures set by the individual in an effort to restrict access to only certain people.

With regard to terms of service, different sites have different expectations, and employers should have a basic understanding of what these are for the various sites they may use. For example, Facebook prohibits individuals from misrepresenting themselves, impersonating others, or using another’s account to look up profiles.

With the boom in information available on the Internet, it is understandable that employers would be drawn to the idea of checking out individuals who may one day be representing their company; but before sitting down at the computer to look up the personal information of applicants, employers should examine the salient issues which may arise from this new method of investigation and take the steps necessary to ensure that their organization is acting in accordance with the law.

George Lenard’s full article can be found at CollegeRecruiter.com.

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