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QL OhXJoNDp.pdf

QL OhXJoNDp.pdf

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Published by Darren Lawson

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Published by: Darren Lawson on Dec 31, 2012
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without naming their sources-a factor
that can safeguard against retaliation.
Such confidentiality also can encour-age employees to file complaints inter-nally, 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 complaintin-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
tions, tension with the boss or boorish
workplace behavior. Complaints of
unfair treatment are common, as are
relationship issues and allegations ofabuse 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, ombuds-
man for Shell Oil Co.'s Houston-based
U.S. operations. They also do not get
involved in complaints from union mem-
bers,
who follow the dispute resolution proce-dures in their collective bargaining agreements. Infact, 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 Bethes-
da,
Md.
ft's dangerous to
can handle theh
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 promo-
48
HR Magazine January 2003
The Double-Edged
Sword of Confidentiality
Most ombuds are hired by and report to a top officer, usu-
ally 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 facul-ty and graduate students at Clemson Univer-
sity 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 visi-
tor 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 Hills-
borough, 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 allegedharassment or discrimination, the employer is legally
bound to take action. If no action is taken and the harass-
ment 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 toombuds require the company to take action by, for exam-
pie, conducting an investigation? If so, how can ombuds
keep such discussions confidential? And if they do, doesn'tthat increase an organization's liability?
These are central questions for HR and ombuds to
resolve. The answers will depend on your organization's
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 discus-
sions 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 pre-
sumably the company would not be on legal notice of mat-ters 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 alto-
gether is one way to avoid that problem.
Another option, says Kadue, is to allow discussions
about harassment and discrimination to take place, but tomake sure employees understand that such conversations
are not confidential-and that ombuds will report such
discussions to HR for investigation.
"It's very important for people to know they can't go to
an ombudsman and say, 'I'm being sexually harassed,'"
and then expect the Ombudsman to tell no one else about
January
2003 HR Magazine 49

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