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HR Magazine: Someone to Listen

HR Magazine, January 2003

Vol. 48, No. 1

Ombuds can offer employees a confidential, discreet way to handle problems - but setup and communication are crucial to making this role work properly

For many HR professionals, sitting and listening to employees' grievances can eat up a substantial part of the day. So, the prospect of having someone else dedicate all their time to helping employees with their complaints and conflicts can sound incredibly appealing.

Enter organizational ombuds - also known as ombudspeople and ombudsmen.

These individuals can help HR professionals by handling many employee-relations concerns, including potentially unethical or illegal behavior, before they get out of hand.

This benefit is especially important in light of recent high-profile scandals involving Enron Corp. and other companies. These recent scandals are also a reason why proponents of these programs believe the number of organizational ombuds - currently about 500 at large companies, universities and colleges - is likely to rise.

Another factor that may prompt the growth of ombuds is the new Sarbanes-Oxley Act, which encourages reporting of corporate wrongdoing and prohibits retaliation against whistleblowers. (For more information on the law, see The Joy of Uncooking in November's HR Magazine.) A central element of the ombuds role is confidentiality, which means ombuds can alert management to whistleblowers stories without naming their sources - a factor that can safeguard against retaliation.

Such confidentiality also can encourage employees to file complaints internally, which gives companies a chance to correct problems before they become full-blown public relations nightmares. That is important because Sarbanes-Oxley does not require employees to file a complaint in-house before contacting an outside enforcement agency.

What Is an Ombudsman?

Ombuds offer informal, confidential help for employees who want their problems addressed but not advertised.

Employees want to handle their situation themselves, but they're stuck, says Deborah Cardillo, corporate ombudsman since 1995 for Eastman Kodak Co., based in Rochester, N.Y. The ombudsman's job, she says, is to get someone unstuck.

A great deal of what we do, Cardillo says, is explain to employees how their complaints or allegations can be dealt with and make it easier [for employees] to go through the formal system if they wish.

Ombuds deal with a variety of complaints, including employees chagrin over small pay raises or missed promotions, tension with the boss or boorish workplace behavior. Complaints of unfair treatment are common, as are relationship issues and allegations of abuse of power. They may deal with circumstances that violate the law or company policy.

Most ombuds do not deal with benefits, workers compensation or severance, says Wilbur Hicks, ombudsman for Shell Oil Co.'s Houston-based U.S. operations. They also do not get involved in complaints from union members, who follow the dispute resolution procedures in their collective bargaining agreements. In fact, ombuds who intervene in union-shop conflicts could be accused of unfair labor practices, says Howard Gadlin, ombudsman at the National Institutes of Health in Bethesda, Md.

The Double-Edged Sword of Confidentiality

Most ombuds are hired by and report to a top officer, usually the chief executive, but they don't take orders from the executive suite. Ombuds cite their independence from management as an advantage.

You can't be seen as being in anybody's pocket, says Cardillo, who reports to Kodak's compliance officer and has access to the CEO.

Ombuds say their independence helps them maintain neutrality. The ombuds is an advocate for a fair process, not an advocate on behalf of individuals or the institution, says Gordon Halfacre, the ombuds for faculty and graduate students at Clemson University in Clemson, S.C.

We're most effective as neutrals, says Hicks.

Independence also helps ombuds maintain confidentiality, which is a key element of the role. Ombuds pledge to never divulge their visitors' identities or concerns. Some, like Halfacre, don't even take notes on individual cases. Those who do take notes typically shred them after disputes are resolved.

The only exception to the confidentiality rule is if a visitor discusses a situation involving an imminent threat of serious harm, according to the code of ethics of The Ombudsman Association (TOA), which is based in Hillsborough, N.J., and represents about 500 organizational ombuds.

The question of confidentiality and imminent harm has special ramifications for HR - especially when it comes to allegations of harassment or discrimination.

When management learns of an incident of alleged harassment or discrimination, the employer is legally bound to take action. If no action is taken and the harassment or discrimination persists, the employer could be liable for punitive damages.

Are ombuds legally considered part of management? And does an allegation of harassment or discrimination to ombuds require the company to take action by, for example, conducting an investigation? If so, how can ombuds keep such discussions confidential? And if they do, doesnt that increase an organizations liability?

These are central questions for HR and ombuds to resolve. The answers will depend on your organizations goals and tolerance for risk; they also will require your organization to think about how it will structure the ombuds role and communicate expectations to employees.

The least risky approach is to limit the types of discussions ombuds can have, says David Kadue, partner in the Los Angeles office of law firm Seyfarth Shaw. If company policy makes clear that ombuds are not authorized to field complaints of harassment and discrimination, then presumably the company would not be on legal notice of matters confidentially communicated to the ombuds.

That's an approach that Kadue seems to favor. It's a highly dangerous practice for employers to set up ombuds programs that give employees the impression the ombuds can handle their complaints of harassment and discrimination, he says. Ruling out such discussions altogether is one way to avoid that problem.

Another option, says Kadue, is to allow discussions about harassment and discrimination to take place, but to make sure employees understand that such conversations are not confidential - and that ombuds will report such discussions to HR for investigation.

Its very important for people to know they can't go to an ombudsman and say, Im being sexually harassed, and then expect the ombudsman to tell no one else about such potentially illegal behavior, says Katie Herzog, president of Eastern Point Consulting Group in Newton, Mass.

Every organization has to define confidentiality for ombuds programs, says Herzog. Generally, confidentiality is allowed in almost all matters except those that could involve illegal behavior, a liability risk for the company or a physical danger for anyone, she says. If it's illegal, it cannot be held confidential.

Of course, if confidentiality is not always a given, it is vital that you tell employees which discussions will be protected and which ones won't. Herzog suggests that employers write guidelines for the ombudsmans role and include them in the employee manual.

At Kodak, Cardillo tells employees what the ombudsman office is and does through a brochure, internal ads and initial conversations with each visitor. This scripting at the start of each visit also serves as an icebreaker to reduce the level of anxiety, she says.

Keeping the Baby and the Bathwater

While the preceding options minimize legal risk, some argue that they fail to take full advantage of the benefits ombuds can provide. Ombuds have helped employers resolve thousands of disputes, points out Sharan Levine, an attorney who has represented and helped to establish ombuds for more than 10 years. She also believes that ombuds can help defuse employee anger over an alleged incident, which could reduce an employees incentive to sue.

If you allow ombuds to discuss harassment and discrimination allegations, be aware that the limited judicial and legislative guidance available applies primarily to the public sector.

Private sector employers might opt to follow an August 2000 recommendation from the American Bar Association (ABA), but even that recommendation is silent on whether communication with ombuds constitutes notice to the organization of harassment or discrimination.

Levine, who chaired the group that drafted the recommendation, says one could argue that when ombuds are established and function in accordance with the recommendation, they should not be considered agents of an organization - and would therefore not be legally required to act on allegations of harassment or discrimination.

The recommendation states that ombuds should be independent and impartial and should maintain confidentiality, but should not be authorized to:

  • Make, change or set aside a law, policy or administrative decision.
  • Make binding decisions or determine rights.
  • Compel an entity or any person to implement the ombudsmans recommendations.
  • Conduct an investigation that substitutes for administrative or judicial proceedings.

In essence, organizations should place appropriate limits on the ombudsman position and then clearly communicate those limitations to employees so they know what to expect. That means it's important to advise employees to avail themselves of other options if they wish to file an actual complaint, rather than merely discuss a situation with an ombudsman.

To this point, the ABA recommendation has not been tested in court.

Another way HR professionals can reduce legal risk - while helping to ensure the success of an ombudsman program - is to help train ombuds in employment issues. After all, if ombuds take action only when a harassment or discrimination complaint involves an imminent threat of serious harm, then it makes sense that they understand what constitutes a legal threat or harm in such situations.

Training is vital, says Herzog. It's important that ombudsmen understand what sexual harassment is and what it is not.

Some ombuds might already have such knowledge, given that those in the field often have a legal background. But assuming such knowledge might be risky. It's better to offer training and make sure that you and your organizations ombuds are on the same page.

Matters of Mutual Advantage

Given that ombuds as well as HR professionals are responsible for resolving employee conflicts, there is always a risk of turf battles and communications breakdowns.

Misunderstandings can develop even from the start, as Carolyn Noorbakhsh discovered when she set up an ombudsman program at Coors Brewing Co. in Golden, Colo.

People in HR didn't understand what an ombudsman did before we started the program as a pilot project three years ago, she says. An implementation team that included HR helped smooth little bumps between the HR and ombudsman offices, and Noorbakhsh helped HR with publicity and training as the program was rolled out to new business units.

Noorbakhsh, who serves about 4,000 employees at Coors headquarters, says she now meets regularly with HR to discuss trends and share updates.

John S. Barkat, ombudsman at Pace University in New York and president of TOA, says: HR is like my first cousin. We share the same visions. We constantly refer people to one another when appropriate.

While there is a natural tension between HR and ombudsman offices, admits Hicks, discussion and experience show how these two functions are mutually advantageous.

In fact, HR and ombuds can create a powerful partnership at organizations where their roles are well understood, experts say. By meeting regularly, HR can apprise the ombudsman office of prospective downsizings, policy changes and other events that impact employee morale and could trigger visits to the ombudsmans office.

At the same time, ombuds can tell HR about patterns of complaints or abuse and workforce trends that HR may be able to address.

Ombuds also can steer their visitors toward expert help. An HR department's employee assistance program, for example, is a major resource that makes her job easier, says Ella M. Wheaton, director of the U.S. Department of Justices Office of the Ombudsperson in Washington, D.C. Though she deals with troubled employees, she says I'm not a counselor - I'm an organizational strategist.

Similarly, Cardillo says that if an employee comes in to express unhappiness with his latest raise, she listens and asks if he has talked to his boss or wants her to talk to the boss. She also may suggest that the employee go to HR, which sets the policy on salary increases.

Part of the role of the ombuds is to be knowledgeable and redirect questions as needed, Cardillo says. I'm not in a position to judge the raise and see if it's fair.

Carolyn Hirschman is a business writer based in Rockville, Md. She has written for a variety of business publications and has covered workplace issues since 1991.

Patrick Mirza and Terence F. Shea contributed to this article.


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