Applying Employment Standards in Civil Litigation
By Joseph Kinney, M.P.A.

About The Author:

Joseph Kinney, M.P.A., has over 25 years experience in security, safety, human resource management, and training issues. In 1987, Mr. Kinney established a nationally recognized workplace safety institute after working in business and government, as well as military service in the U.S. Marine Corps. Under Mr. Kinney's direction, the institute has provided information resources and services to over 500 businesses, government agencies, and individuals across North America and abroad. With graduate degrees from the University of Pennsylvania and Syracuse University, Mr. Kinney has testified before the U.S. Congress, served on a number of high-level government advisory bodies, and appeared on the programs of numerous trade associations and professional organizations. His related expert witness experiences include a wide range of personal injury and criminal cases.

Mr. Kinney has been a member of various professional associations throughout the course of his career, including the Society for Human Resources Management, American Society for Industrial Security, Association of Threat Assessment Professionals, and American Public Health Association, among others. He has published and presented several papers and learned treatises on employment within various disciplines including medicine, industrial hygiene, human resources, psychology, as well as related fields. Mr. Kinney is the author of Violence at Work. Outside of his private practice, Mr. Kinney is a consultant to various organizations, including the National Institute of Justice and the Council of State Governments.

If you would like additional information about the author's services as an expert witness and/or consultant,
contact the Legal Expert Network at 1-800-597-5371.

Most attorneys are largely uninformed about how an employment standards expert can help them. Part of the reason for this is that we are still few in number and to the extent attorneys consider our particular body of knowledge and skills, they approach it obliquely or in a piecemeal fashion. What attorneys should understand is that employment standards issues are critical to a surprising number of cases, far more than those in which we are currently utilized. Because this is true, an expert who can identify and articulate such issues and why they are important to a jury can be invaluable to the outcome of a case. In fact, businesses and government agencies deal with employment standards' issues every day although the critical issues are seldom articulated in such a fashion. Indeed, the clarity of issues in this field varies by industry, largely because of regulation. Employment standards may be more explicit in industries such as nuclear power, transportation, daycare, or medicine, but such standards or practices are always operative at some level and can often play a pivotal role in numerous outcomes that are the subject of civil litigation. Because employment standards relate to how the human resources function, in broad terms, is carried out in organizations, they are of critical importance in how these organizations manage their affairs. For a plaintiff's attorney, understanding such decisions can provide insights into how an organization makes decisions that create and tolerate conditions that result in injury. For a defense attorney, appreciating the appropriateness of your client's human resource practices in the context of their similar businesses can demonstrate to a jury why a particular event was beyond the control of the client.

Employment standards can be explicit or a collection of practices made by a manager without clear policy or procedures for guidance. Some employment standards for certain industries are a function of government regulation or statute. Still others, at the other end of the continuum, reflect seat-of-the-pants management of organizations that are growing too fast or that have never bothered to develop sound procedures and practices to influence the management of people. Any entity with a dozen or more people that utilizes job descriptions or application forms is knowingly or unwittingly articulating an employment standard. Hence, all organizations have standards at some level. The critical issue for an employment standards expert is, to determine whether such standards, explicit or implicit, have a significant relationship to the cause of action. In essence, employment standards involves a range of issues that correspond with the employment process (e.g., hiring), training of employees, supervision, and related issues in the carrying out of the business of the organization. An employment standards expert must be able to evaluate these issues not only in the context of the organization in question but also within industries and with respect to the special sensitivities pertinent to certain types of jobs. An understanding of employment standards is crucial in terms of determining the pertinence of decisions or acts in each of these areas and the role that those decisions or acts played in causing (or not causing) a certain outcome to occur.

Even though they don't know it, many attorneys have retained and used experts to explain to juries employment standards issues and the role of such standards play with regard to the incident, circumstance, or situation in question. While these experts have tendered their credentials to the court in the fields of human resources, safety, security, workplace violence, or human factors, they may more properly be called employment standards experts. The approach that attorneys often take in this area is limiting, diminishing the potential of their case. A qualified employment standards expert should have an understanding of how organizations function (organization theory), evolve over time, and address critical decisions. In the context of contemporary litigation, the role that an employment standards expert plays may be as important as an actuary who examines a firm's financial and accounting practices or an economist who estimates the cost of lost income. In fact, my experience is that employment standards experts can often lay their finger on the missing piece in the puzzle in explaining why particular problems occur or, alternatively, why a particular defense will serve to a jury why a particular event took place. In short, employment standards experts can be important because it is they that can best relate outcomes to the adequacy of policy and procedure to organizational functions and outcomes.

Increasingly, these experts are playing a large role in litigation involving a vast range of management behaviors and decisions. An employment standards expert can assist the court in determining if a person was properly qualified for a specific position, appropriately trained to handle certain responsibilities, or if certain decisions by management were reasonable to protect the interests of at-risk employees or even the public. In one case where I served as a consultant, the outcome turned on a range of employment standards issues, costing a defendant $78.0 million in punitive damages and $750,000 in actual damages (see Kinder v. Domino's, 1993, Mo.).

AREAS OF APPLICATION

The primary thrust of employment standards is to understand how employees are selected, trained, supervised, retained, and even terminated and how those business decisions effecting those considerations result in specific events or outcomes. There are a number of areas where employment standards are conspicuous:

Compliance (e.g.):

• OSHA
• EEOC

 Acts involving aggression or violence (e.g.):

• Homicides
• Aggravated battery or rape
• Negligent or inadequate security
• Employee motor vehicle operation
• Chemical or substance abuse
• Malicious prosecution, defamation, invasion of privacy
• Personal injury

 An employment standards expert can be valuable before a lawsuit is filed. Such individuals are superior investigators and can understand the reasons for certain consequences that may not be apparent to others. The purpose of work in the area of employment standards is the systematic application of relevant information about human behavior of employees, in the context of an organization's operations, to the safe and secure functioning of that organization. The application of employment standards permits the judicial process to reach rational decisions about the appropriateness of certain factors to causation in events that result in injury or potential injury. Most issues that involve employment standards fall into one of the following broad categories:

1. Hiring
2. Training
3. Retention
4. Supervision

The following discussion provides a brief overview and example of each of these categories.

HIRING

For safety sensitive positions (e.g., nuclear power), there are statutory requirements specifying specific qualifications. For example, individuals with criminal convictions are not generally eligible for such positions. Another example would be the daycare industry where parallel statutes prevent the employment of pedophiles. The theory behind such statutes is that protection of the public interest demands that people who do not meet the requirements are not eligible for employment.

When it comes to case law, hiring issues are often relevant. This is particularly true in cases where an individual has a history of criminal violence and engages in acts of violence in close proximity with the date of their employment. There are at least three situations that tend to negate the impact of criminal histories. The first is that substantial time has been since the incarceration of the individual. It can be reasonably expected that employers have a comprehensive understanding of a person's past for the previous ten years, but generally not before that date. A second example would be evidence that the employer had that the individual would be substantially less likely to engage in similar behavior in the future. This would be true when there was evidence that suggested that individual experienced behavioral modification, usually with some clinical evidence. A third would be that the employer designed a position in such a fashion to reduce the subject employee's exposure to other people or was rigorously supervised.

Generally, hiring issues become an important focus of investigation when it can be reasonably demonstrated that the employer should have known that the individual was at-risk of similar behavior in the future and that the person was put in a position where they hurt another person.

Employers tend to make poor hiring decisions when unemployment is low (the warm body syndrome) or when they are trying to fill a minimum wage position. When such a decision is made, management is taking a calculated risk that no harm will arise from the decision.

Employment standards experts should consider the entire hiring procedure including the application process, pre-employment testing, and interviews. This approach must be consistent with job tasks. Often, a poorly completed or incorrectly completed application form will reveal the extent of an employer's commitment to adequate hiring procedure. There is no example where this is more apparent than in the application process itself. During the course of my career, I have found that about half of successful job applicants fail to respond to the questions on the application form or report information that is inaccurate. Employers, in a hurry to fill positions, sometimes disregard obvious errors on the forms.

If information cannot be properly confirmed, then additional data must be sought from the applicant regarding the issues in question. I recently had a case involving a highly educated medical professional who was implicated in a sexual assault against a hospital's patients. Ironically, the offending hospital could have easily discovered that the individual had engaged in similar behavior, had they carefully checked court records where the individual previously lived. In still another case involving a plumbing company employee who robbed and murdered a customer, proper verification of the application form would have revealed that the perpetrator was in prison when they claimed to have worked for another company.

To summarize, the hiring process is paramount if the decision to hire was in close proximity to the event that is the subject of the litigation. Appropriate issues include, but are not limited to:

• Was the application form adequate? Was the information on the application form verified?
• If negative or potentially harmful information was revealed during the application process, did the employer take steps to ensure that the applicant had mitigated such experiences?
• What other tasks were part of the pre-employment process? Testing? Drug tests? Interviews? Were those tasks adequate?
• Who made the hiring decision? Was the person qualified? What pressures may have influenced the hiring of that individual?

 Some organizations are fearful of the hiring procedure and want to avoid discovering derogatory information about an applicant. Such a head-in-sand approach no longer works if it ever did. Most people expect that an employer should have a pertinent information about the people who are invited to work as employees. This does not mean that a person with derogatory information is refused employment, because it has been demonstrated that applicants can be employed in capacities that are not safety sensitive or involved extensive supervision.

TRAINING

Seldom do employees come to a new job fully equipped to handle the specific tasks entailed by their position. It is only reasonable that processes be put into motion ensuring that the employee gains the skills necessary to carry out the tasks peculiar to the position. To prepare an employee, training must occur in a fashion that assures management that the person is able to successfully handle the tasks at hand with little risk of harm to themselves or others. Excellent companies take care to ensure that the employee is capable of their assigned tasks. Most organizations use internal forms of training-on-the-job, classroom, computer-based training, videos, etc., while still others rely upon external trainers to provide this service. An employment standards expert can determine if the training was adequate in terms of the assigned tasks, which includes an assessment of whether the employee comprehended the training at hand.

Not only must the training be adequate, but also it must be fully comprehended by the employee. Mere exposure does not translate into comprehension. There recently have been numerous large companies with excellent training programs that were successfully sued for tolerating a hostile work environment (sexual harassment) because their employees did not comprehend the training, its importance to the organization, or failed to retain crucial information. Providing training means very little when the business fails to take steps to ensure that it is comprehended and properly applied by the student.

Organizations fail when they do not train or if they fail to train adequately or, in some cases, employ the services of contractors or temporary employees who are unskilled to handle the tasks at hand. Further, training loses its utility if the employee is not tested or refresher training is not offered on a frequent basis. In general, important training must be conducted on an annual or semi-annual basis. The more important the topic, the more critical the training is and the more crucial it is that the organization takes additional steps to ensure employee understanding. What good is training if the employee sleeps while he is supposed to be watching a training video? What good is training if the information covered is so complex that refresher training is essential? It is interesting that studies conducted for the American Society for Training and Development (ASTD) consistently reveal that American employees receive a small fraction of the training obtained by their European or Japanese counterparts. Too often senior executives fail to appreciate the importance of sound training or they unwittingly wager the company's fortunes hoping that they will avoid problems and resulting litigation.

Critical training issues include:

• Was the training adequate and appropriate? Did it cover the issues of concern in a realistic fashion?
• Was the training clearly comprehended by employees? How do we know?
• How does the organization's training program compare with other training in the same industry?
• Is there a plan to ensure that employees retain the training over time? Are refresher courses offered?
• Is there an awareness program to ensure compliance with training objectives?
• Who did the training? Was their performance evaluated? What did the evaluations say?

RETENTION

Retention comes into play the very moment when management receives derogatory information about an employee, contract employee, or temporary employee under their control. If that information is relevant to the person's capacity to perform their job tasks, then the information must be considered, evaluated, and acted upon. The appropriate action could be counseling, discipline or termination, depending on the nature of the infraction and the organization's approach to discipline. (For example, infractions by more senior employees tend to be given more consideration, within reason, than similar offenses junior employees. Organizations tend to accept the mistakes of long-term employees because of the employee's obvious investment, by virtue of their longevity, in the company.) Recently, I had a case (Allman v. Union Butterfield, NC, 1999) where an employee had been involved in at least four physical altercations that were documented in the personnel file before the employee was finally terminated. Two days after the employee was fired, he returned and murdered two employees while wounding two others. Retention themes were paramount in this case, which resulted in an $8 million judgment on behalf of the plaintiffs.

It is surprisingly how often a management will receive information suggesting that it should take action to discipline an employee and fail to act upon it. While this is more likely to be true in periods of low unemployment and when qualified personnel are hard to find, it also tends to hold true in general. Often, a management is reluctant to terminate an employ simply because they do not want to go through the difficulty of identifying, hiring, and training a replacement.

Critical retention issues include:

• Does management have a consistent system for addressing employee infractions or wrongdoing?
• How does management approach discipline?
• Are supervisors trained to counsel employees? Apply discipline?
• Is there an employee assistance program (EAP)? Was it used to address any problems?

SUPERVISION

Supervision involves the capacity of a manager to successfully manage the behavior of an employee within their jurisdiction. The lines between a manager and subordinate can be blurred, as they are in organizations with flat organizational hierarchy. Ultimately, the manager or supervisor with the potential daily control over the work processes and product of a particular employee. Generally, this person will be involved in various forms of the human resource function (e.g., compensation) as it relates to a particular employee.

Managers and supervisors exist to organize the company's work. A supervisor may have two or three employees under their influence, or they may have 200. Senior management that dramatically increases the ratio of employees per manager is assuming the risk that the manager can successfully manage the situation at hand. It is only logical that a supervisor with a large number of employees to supervise is going to have a very difficult time doing so in an efficient and effective manner.

For an employment standards expert, how supervisors come to attain their position and the way that they are trained is of great interest. I have an industrial client that makes a substantial investment in choosing its managers. They are extensively tested (e.g., aptitude, personality traits) and peer reviewed before they are interviewed by an industrial psychologist. Less than half of the employees considered for management do not succeed in obtaining a supervisory capacity.

Then, of course, there are a range of issues relating to how well trained the supervisor is to carry out their job. Supervisors must have an acceptable level of interpersonal and communication skills, including the ability to counsel employees. Often very able employees make poor supervisors because of inadequate training, bad aptitude and/or inappropriate skills. Finally, some organizations do not support their supervisors. I have seen cases where supervisors are admonished to work it out with employees who clearly require discipline or medical intervention. The criteria and procedures for being able to refer an employee in such situations must be carefully spelled out and understood by the supervisor.

Supervision issues include:

• How was the supervisor selected for the position?
• What training did the supervisor receive?
• Do supervisors receive adequate support in handling serious problems?

DETERMINING THE APPROPRIATE STANDARD

Ideally, an employment standards expert will be employed as early as possible in the litigation process. An expert employed on behalf of the plaintiff can be enormously valuable in mapping out discovery. In my experience, organizations have often had ample warning of what was to come, but they buried their heads in the sand and refused to manage a potential problem. A defense expert may have to survey similar businesses in order to determine if the client conducted their affairs in a reasonable fashion and to determine if the business conducted itself in a reasonable fashion.

Organizations, like individuals, make collective choices about how to allocate resources and to conduct their affairs. An organization that proceeds with caution, responds to problems properly, and invests in human capital will be well positioned to respond to potential problems. Most jurors understand that there is only so much that an organization can do to influence and control an employee. But jurors become intolerant when the organization constantly takes enormous risks and fails to heed warnings. Understanding an organization's state of affairs involves investigation and/or discovery that is carefully and intelligently crafted to obtain this information. If an employment standards expert has completed the proper work, then the interests of the retaining party's client will have been well served.

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