Executive Compensation Controversy Rages, SCCE to Determine What Role Compliance and Ethics Play
Posted on: Tuesday, 19 May 2009, 10:30 CDT
How Executives and Employees are evaluated and paid is the topic of a survey currently being conducted by the Society of Corporate Compliance and Ethics and the Health Care Compliance Association
MINNEAPOLIS, May 19 /PRNewswire-USNewswire/ -- Companies say that they want their employees to do the right thing, but are they rewarding good behavior and punishing bad behavior? The Society of Corporate Compliance and Ethics (SCCE) and its sister association, the Health Care Compliance Association (HCCA) are conducting a survey to learn if compliance and ethics play a role in how executives and employees are evaluated and paid.
"Now is the time to get a better handle on where organizations stand versus industry as a whole," said SCCE/HCCA Chief Executive Officer Roy Snell. "Are performance metrics taking into account ethical, compliant behavior?"
Background: Over the past few months the SCCE and HCCA have conducted a number of topical surveys of its members and have gained important insight into the current state of compliance and ethics concerns through these studies. Past survey topics include Corporate Gifts and Entertainment Policies, Third-Party Risk Management, and the Risk of Legal and Ethical Violations.
About the SCCE
The Society of Corporate Compliance & Ethics (SCCE) is headquartered in Minneapolis, MN. Its mission: SCCE exists to champion ethical practice and compliance standards in all organizations and to provide the necessary resources for compliance professionals and others who share these principles. Visit the SCCE Web site at http://www.corporatecompliance.org, Tel: 888-277-4977. Society of Corporate Compliance & Ethics is located at 6500 Barrie Road, Suite 250, Minneapolis, Minnesota 55435. E-mail: helpteam@corporatecompliance.org.
About the HCCA
The Health Care Compliance Association (HCCA), established in 1996 and headquartered in Minneapolis, MN, is a non-profit professional membership organization made up of compliance and ethics professionals working in the health care industry. HCCA is dedicated to improving the quality of compliance. Visit HCCA's Web site at www.hcca-info.org. Tel: 888/580-8373. E-Mail: service@hcca-info.org
SOURCE Society of Corporate Compliance and Ethics
Reverse discrimination case could transform hiring
Saturday, April 18, 2009
By JESSE WASHINGTON, AP National Writer
NEW HAVEN, Conn. — Inside a burning building, fire doesn't discriminate between Matthew Marcarelli and Gary Tinney. Inside the New Haven Fire Department, however, skin color has put them on opposite sides of a lawsuit that could transform hiring procedures nationwide.
This week, the Supreme Court will consider the reverse discrimination claim of Marcarelli and a group of white firefighters. They all passed a promotion exam, but the city threw out the test because no blacks would have been promoted, saying the exam had a "disparate impact" on minorities likely to violate the 1964 Civil Rights Act.
Besides affecting how race can be considered in filling government and perhaps even private jobs, the dispute also addresses broader questions about racial progress: Do minorities and women still need legal protection from discrimination, or do the monumental civil rights laws that created a more equal nation now cause more harm than good?
Also, beneath the specific details of the firefighters' lawsuit lies an uncomfortable truth: On most standardized tests, regardless of the subject, blacks score lower than whites.
Reconciling that reality with efforts to ensure "justice for all" remains a work in progress _ one that will be molded by the Supreme Court.
New Haven's population is 44 percent white, 36 percent black and 24 percent Hispanic (who can be any race). At the time of the 2003 test, 53 percent of the city's firefighters, 63 percent of lieutenants and 86 percent of captains were white. Blacks were 30 percent of the firefighters, 22 percent of lieutenants and 4 percent of captains.
The promotion exams were closely focused on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60 percent of the final score. Candidates returned another day to take an oral exam in which they described responses to various scenarios, which counted for 40 percent.
Tinney, a black lieutenant who has been a firefighter for 14 years, was seeking a promotion to captain when he took the exam.
He says both the test and his fire department have hidden biases against minorities: The department is historically white, with the first blacks joining in 1957, and jobs, relationships, knowledge and choice assignments are passed on from friend to friend and generation to generation.
"I just call it 'the network,'" Tinney says.
The white firefighters' attorney, Karen Torre, said they would not be interviewed for this story. In a conversation on Fox News' "Hannity" program, Marcarelli said it was "gut wrenching" to learn that he was No. 1 on the test but would not get promoted.
"It's something that shakes what you believe in. Because you believe if you work hard, you're rewarded for that, and that's not necessarily the case," Marcarelli said.
Torre said whites have no special advantage in promotions because of laws requiring use of a race-blind, score-based system. She added that many blacks have relatives on the force, including high-ranking officers.
One hundred and eighteen people took the tests; 56 passed. Nineteen of the top scorers were eligible for promotion to 15 open lieutenant and captain positions. Based on the test results, the city said that no minorities would have been eligible for lieutenant, and two Hispanics would have been eligible for captain. (The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.)
The exams were designed by a professional testing firm that followed federal guidelines for mitigating disparate racial outcomes, the plaintiffs say.
But after the results came back, the city says it found evidence that the tests were potentially flawed. Sources of bias included that the written section measured memorization rather than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.
"I'm sure there are numerous reasons why (blacks didn't do as well), and not because we're not as intelligent," Tinney says. "There's a lot of underlying issues to that ... these folks are saying, 'We studied the hardest, we passed the test, we should be promoted.' But they're not talking about all the other things."
Torre argues that discarding a test because no minorities would have been promoted violates the equal protection clause of the U.S. Constitution and Title VII of the Civil Rights Act, which forbids discrimination because of race.
Call it a legal riddle only the Supreme Court could solve: The white firefighters say Title VII prohibits discrimination against them for being white; New Haven says Title VII prohibits it from using a test that has a disparate impact against blacks.
"All were afforded the same notice, the same study period, the same exam syllabi, etc.," said Torre, who would only answer questions by e-mail. "The rest was up to the individual."
There are long-standing divisions over the concept of hardworking, qualified whites being "victimized" by laws or practices designed to help minorities overcome America's history of racism. What's different today is that the landscape has shifted in many ways, big and small.
The biggest is the election of President Barack Obama, and the support he received from millions of white voters.
"It is not white racism that plays the deciding role in the success of minorities any more," says Edward Blum, a visiting scholar at the American Enterprise Institute who believes that race should not be considered in employment decisions.
"That was the case in the '60s and '70s and maybe even part of the '80s," he says. "But it is no longer the case in the 21st century that because you are black you are being held back from achieving what your parents and your ambitions will allow you to achieve. I think that has been crystallized with the election of President Obama."
Obama's election has been a boon to the movement that developed years ago seeking to reshape civil rights laws designed to remedy discrimination.
Besides the firefighters' lawsuit, the Supreme Court will soon hear a case seeking to overturn a Voting Rights Act requirement that all or parts of 16 states with a history of discrimination must get approval from the Justice Department before changing election procedures. And in 2007, the court struck down voluntary integration plans in two public school districts.
Even though it may result in less opportunities for qualified minorities, "the use of race does greater harm to our social fabric by being there than by being eliminated," Blum says.
Another major shift has been in the balance of the Supreme Court. Conservatives gained a 5-4 majority during the Bush administration, although Justice Anthony Kennedy is seen as a potential swing vote.
In Chief Justice John Roberts' majority opinion in the 2007 school ruling, one line rang loudest: "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
That statement was seen as a harbinger of future rulings that would end the use of race in employment, voting and awarding government contracts. It also rebutted a famous statement by Justice Harry Blackmun in the landmark Bakke affirmative action case: "In order to treat some persons equally, we must treat them differently."
Mary Frances Berry, a history professor at the University of Pennsylvania and head of the U.S. Commission on Civil Rights during the Clinton administration, said the firefighters' case has broad implications.
"This is about whether we are going to see a sea change in how the judiciary looks at the need for these (protections), and how the popular culture and electoral politics influence their perceptions," Berry said.
The Obama administration has said such laws are needed and it is committed to enforcing them. The Justice Department's brief in the firefighters case supports New Haven's position that the city acted properly in throwing out the tests.
But in what many call a political maneuver designed to avoid taking sides, the Justice Department stopped short of saying the firefighters' case should be dismissed, instead recommending that it be remanded to a lower court to determine if city's decision was a pretext for intentional discrimination.
Polls show varying levels of support for affirmative action programs.
In an AP-Yahoo poll conducted in December 2007 through January 2008, one-quarter of respondents favored affirmative action programs and 37 percent opposed them. Another 36 percent neither favored nor opposed them.
A September 2007 Pew poll, which did not give people the option to say they had no opinion, found that 46 percent of people said they favored affirmative action programs that give special preferences to qualified blacks in hiring and education, while 40 percent opposed such programs.
Last November, Colorado voters became the first in the nation to reject a ban on state affirmative action programs. Similar measures have been approved in Nebraska, California, Michigan and Washington.
Supreme Court observers predict the firefighters' lawsuit will be decided by a 5-4 margin, with Justice Kennedy casting the deciding vote.
His past decisions give hope to both sides.
In the recent Voting Rights Act decision that made it harder for some minority candidates to win election when voting districts are redrawn, Kennedy wrote in the majority opinion that "racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions."
"It would be an irony, however," Kennedy continued, if civil rights laws were used to "entrench racial differences."
Christian groups sue over California student-discrimination law
By Juliet Williams
ASSOCIATED PRESS
5:11 p.m. November 27, 2007
SACRAMENTO – A Christian group based in Southern California sued the state Tuesday to overturn a law that prohibits discrimination against gays in schools.
Murrieta-based Advocates for Faith and Freedom filed the lawsuit in U.S. District Court in San Diego. It was joined by the Northern California chapter of Alliance Defense Fund, an Arizona-based Christian legal group.
The groups filed suit on behalf of several teachers and a student who claim the law, which was passed this year, is unconstitutionally vague and violates student privacy by changing the definition of gender in California's education code.
The lawsuit says school administrators will be forced to read the minds of students, teachers and employees “to determine the individual's self-defined sexual identity so as not to inadvertently discriminate against an individual based upon their self-defined sex.”
But the bill's author, state Sen. Sheila Kuehl, said the legislation did not change the state's discrimination laws. Rather, she said it clarified existing education law that already prevented discrimination based upon sexual orientation.
The 1999 law offered protection to students and school employees through California's hate crimes law, but school administrators wanted the education code to be more specific, said Kuehl, a Santa Monica Democrat who is openly gay.
“There's no change in the law; it was always the same. All of these truly silly claims that they make about what could happen could have been happening over the last eight years and never did,” she said. “I think they know they don't have a case. I think it's purely a fundraising mechanism for them.”
Kuehl was referring to a campaign by the law's opponents, who are collecting signatures to put a referendum on the bill before voters during next June's primary election.
That drive already has stopped the law from taking effect on Jan. 11.
Opponents say the law promotes homosexual, bisexual and transgender lifestyles to children.
The law offers the same protection to those groups as it does to others protected under the state's hate crimes law. The law prohibits discrimination based on disability, gender, nationality, race or ethnicity, religion, sexual orientation or association with any of those groups.
The groups' suit claims the law passed this year “will eliminate the biological understanding of the term 'gender' and will repeal Education Code Section 212, which currently defines 'sex' as 'the biological condition or quality of being a male or female human being.'”
For example, “What will prevent the 250 pound linebacker from deciding he wants to share the locker room with the cheerleaders?” Advocates for Faith and Freedom attorney Robert Tyler said in a statement.
Gov. Arnold Schwarzenegger, who signed the bill on Oct. 12, Attorney General Jerry Brown and state Superintendent of Public Instruction Jack O'Connell are named as defendants.
April 23, 2008
Advice From A Workplace Expert to the Graduating Class of 2008: Do Not Rate Your Boss as Hot or Not - and Other Words of Wisdom to Help Launch Your New Career
San Francisco – Workplace expert Shanti Atkins offers real world advice to the graduating class of 2008 – a group celebrated for their technological savvy but woefully unschooled in the customs of the corporation. As President and CEO of ELT Inc., Atkins' company provides online ethics and compliance training used by millions of employees across the country. www.elt-inc.com
"Today's graduates will yield unprecedented power in the workplace when they start their first corporate job. It's important these stars-in-the-making are prepared for the profound differences between work behavior and school behavior," Atkins said. "For example, do not rate your boss as hot or not," she joked, referring to the popular college pastime of rating professors, friends and random faces and bodies on social networking sites.
"More seriously, expect to be rated and evaluated in ways that had little relevance in school – like your ability to follow policies and codes of conduct ranging from how you behave at business parties with alcohol to what you wear to work every day," she said. What college graduates lack, Atkins says, is a sense of how to work and play on their new stage, the corporation. To help students navigate the transition from college life to corporate America, Atkins offers the following advice:
Technology is your best friend and worst enemy. In matters technological, you rule. Your ability to communicate and network goes far beyond anything previous generations have ever seen. But here's the rub – the rules are different in the workplace. Everything you do on company time and company equipment can be considered work product and is subject to standards of professionalism you might not be used to. Every email, voicemail and text message you send could someday be used for or against you in a work dispute or performance evaluation. Even if you are blogging about work on your home computer on your own time, say, about a great new project or a hard-to-work-with colleague, you could be violating company privacy policies or other standards. Yes, it is a brave new world when you are used to few boundaries and endless creativity in communication. Your job is to maintain and even increase your technological edge on the job, but learn to keep the power professional, not personal.
Quick tips:
Do not rate your boss as hot or not. You rated your professors, you rated your friends, you rated random faces and bodies on numerous online communities. Be warned, "hot or not" is no longer the appropriate question of the hour, if the hour is between 9 to 5.
Online communities are not like Vegas – what happens there definitely follows you back to work. Remember, you have "no expectation of privacy" in almost all types of workplace communications. And that doesn't just mean e-mail and Internet use – it can cover instant messaging, handheld devices, blogs and social networking sites.
More and more companies are monitoring employee communications, so be professional at all times. What was humorous and "edgy" at school may be a costly violation of your company's anti-discrimination and anti-harassment policies.
Share your ideas with the boss about how to use technology more effectively – you're the expert!
Your underwear is entirely your business. Keep it that way. Transitioning from college garb to professional attire requires a new mindset as well as a new wardrobe. Remember that favorite T-shirt picturing a male chicken emblazoned with the four-letter-word for rooster? What was clever and fashionable in school is a definite foul at work. In fact, sexually explicit or suggestive clothing on the job can land you and your company in legal hot water with sexual harassment concerns. Chances are, that's not the response you were going for. While it can be tough figuring out the boundaries in America's increasingly casual workplace, the best sartorial advice is still: when in doubt, play it safe. But if that crushes your spirit of self expression, how about this: play it subtle, like a movie star ready for your close-up. And unlike movie stars, make sure you can bend over to pick up a paperclip and still be business appropriate, front and back. Low rise pants can be an office hazard.
Beware the provocative T-shirt slogans exploring race, religion, politics and sex.
Casual Friday does not mean Sexy Friday or Homeless Friday.
You can wear any underwear you want, top and bottom, because you should be the only one who sees it. After-hours business events can be perilous parties. It's a dream come true! Not only are you getting paid to travel and stay in hotels, there is "free" food and drink everywhere you go. But don't be tripped-up, it's not actually an endless party. If you are on the company dime, you aren't off the clock in terms of business behavior. Yes, such events are designed to help people connect socially, but only to the extent that potential business ties are strengthened. So keep your eye on the ball, not the open bar, and you can shine at these events. How to be yourself and still connect socially with company bigwigs? Act as if you are meeting your significant other's parents. Politeness and respect never go out of style.
Binge drinking and professional performance don't mix. Learn your limit, and stay well under it at company events.
Think twice about alcohol during business lunches or dinners, even if your boss indulges. And don't make a point of eating the left side of the menu just because you're not paying.
Hookups at the office party or while you're traveling for business never make a great impression. And however subtle you think you're being, people will notice – and talk.
No one ever forgets the company fool at a Holiday party. Don't let it be you.
While it's great to make friends at work, your managers aren't your friends. Friends forgive and forget. Managers make constant judgments, and express their opinions in your pay and performance reviews.
Office romances aren't all that. An office romance may be tempting, but there is lots to recommend against it. The distraction to your work performance is the least of your worries, so let's talk bigger picture. Be aware that peer to peer romances can have a toxic effect on the work environment for everyone, thanks to public displays of affection, intimate text messaging all day, private jokes and leave-us-alone "couple" behavior. However, manager/subordinate romances are even worse, casting an appearance of favoritism on everything from work assignments to job evaluations to promotions for the entire team. In fact, lawsuits from co-workers not involved in the relationship are on the rise, claiming the manager's romance with someone else is creating sexual favoritism or a hostile work environment. We haven't even mentioned messy breakups, unwanted flirtations or downright sexual harassment! Realistically, many people find love in the workplace, but if you understand the possible downsides you can avoid trouble. Learn your company's policies about employee dating. And if you are considering involvement in a manager/subordinate relationship – please think again, at least until one of you is transferred to another position. At the end of the day, it's better to get your money and your honey from different places.
Don't be a player at work, you stand to lose professionally if not personally.
Mind your personal technology – text messaging, blogging, social networking and deeply personal YouTube video diaries can all circulate like wildfire among employees and add serious fuel to the gossip mill.
Ethics – The Silent E? Not Me. As a new college graduate, your sense of fairness, justice and right and wrong have never been stronger. But as you to begin to make your name in the workplace, you will be exposed to normal workplace pressures to get the job done faster, cheaper and with the highest profit. Will you cut corners, bend rules, lie to make things fit? Turn your idealism to your own realm. Will you adjust your timesheet, exaggerate your expenses, abuse office privileges? You are on an ethical journey, and ultimately, the ramifications of your actions can affect nations. Think of Enron, for example, and imagine the long chain of invisible ethical lapses that lead to such a tragic corporate scandal.
Find an experienced mentor, someone you respect, to act as your ethics advisor. Ask the big questions outside of the work environment and don't be surprised at shades of gray, they are everywhere.
Learn to trust your superiors, and if you can't, start job hunting elsewhere.
You are not the office cop, but be aware that there are "whistleblower" laws that protect you from retaliation if you raise complaints.
There's no such thing as a small lie, or a minor financial irregularity. That means following one of your mother's first rules in life – tell the truth. And when it comes to spending your company's money, never take liberties. Fudging a line item on your expense report is stealing – plain and simple -- and your employer will see it that way.
Learn the Rules. No doubt about it, you could probably tell any freshman you meet exactly how to succeed in school and where they might go wrong along the way. You know the rules of school. By the same token, you need to learn the written and unwritten rules of your workplace, well beyond your daily hours and rate of compensation. What exactly are the rules of engagement regarding technology, after hours business conduct, office romance/sexual harassment, ethics – and many more corporate cultural and employment issues that will define your work experience? Your best bet is to make a friend in the human resources department and show your boss you are committed to learning and living by the rules of your new organization.
Read everything in the orientation packet. Separate out the benefits portions (health plan, retirement benefits, etc.) from the Employee Code of Conduct and Employee Handbook, and give the Code and Handbook as much attention as the former.
Ask your boss to identify a contact for you in the Human Resources department for routine questions.
Seek out a well respected and trusted mentor, and model his or her behavior.
Be a leader, not a follower when it comes to employee education. Always complete your assigned training – especially on compliance topics like harassment, discrimination and ethics – and put your knowledge to practice!
NEWS:
April 28, 2008
Court Upholds $1M Jury Award in Harassment Suit
The United States Court of Appeals for the Ninth Circuit has affirmed the judgment on a jury verdict in favor of the U.S. Equal Employment Opportunity Commission (EEOC) and a farm worker in a sexual harassment and retaliation lawsuit against Harris Farms, one of the largest integrated farming operations in the Central San Joaquin Valley in California.
The appeal followed a trial where the jury found Harris Farms liable for sexual harassment, retaliation, and constructive termination. The woman was awarded more than $1,000,000, including attorney's fees for her private lawyer, on her federal and state law discrimination claims.
During a six-week trial in the U.S. District Court for the Eastern District of California in Fresno, the woman, a Mexican immigrant who began picking crops for Harris Farms in the early 1980s, alleged that her supervisor raped her on several occasions and threatened her with a gun or a knife to ensure her compliance.
She also said that he also subjected her to repeated verbal sexual harassment and intimidation. In addition, she alleged she was subjected to sexually offensive and threatening gossip from co-workers, as well as retaliation. She said the conditions finally became so intolerable that she was forced to resign.
On January 21, 2005, the jury reached their verdict against Harris Farms and awarded the woman $53,000 in back pay, $91,000 for front pay (what she would have earned if she had continued working at her job) and $350,000 in compensatory damages for emotional pain and distress. The jury also awarded $500,000 in punitive damages against Harris Farms. (The amount of the punitive damages was later reduced to $300,000 because of limits set by federal discrimination law.)
CSU police chief Dexter Yarbrough's leave followed sexual harassment complaint
Aaron Hedge
Issue date: 3/23/09 Section: News
Former CSU Police Chief Dexter Yarbrough was placed on leave pending an investigation into his conduct over winter break on the heels of a sexual harassment complaint filed by a CSUPD employee, according to documents obtained last week by the Collegian.
Interim President Tony Frank mandated in a memo that Yarbrough go on paid leave on Dec. 19, nine days after the complaint was filed, according to a document log released last week by CSU officials.
The former chief resigned on March 6, just days after the Colorado Bureau of Investigation and CSU's Office of Equal Opportunity and Diversity released the findings of their university-commissioned probe into his conduct.
Yarbrough did not return a phone call from the Collegian requesting comment on the sexual harassment charges.
CSU officials said none of the records produced by the investigation, which ended Feb. 16, would be released to the public, saying state and university personnel rules prohibit their release and to protect the integrity of future investigations.
In the two and a half months of Yarbrough's leave from his $156,000-a-year position, he garnered about $33,000 from the university in pay.
During that time, a Collegian investigation found that Yarbrough had allegedly falsified police reports and routinely exhibited sexist and intimidating behavior toward his employees and students.
Audio recordings taken by one of his students in his criminal investigations class and turned in to the OEOD illustrate what sources describe as Yarbrough's rogue and potentially illegal police behavior.
In one classroom lecture in spring 2008, Yarbrough advised his students -- including many aspiring police officers -- to provide illicit drugs to informants as payment for information.
"We may decide to give the informant 10 of those (crack cocaine) rocks. OK," Yarbrough said to his criminal investigations class, for which he is additionally compensated as an adjunct instructor.
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