March 2009: The Importance of Training

by Michele Shuster, a partner with the law firm of Mac Murray, Petersen & Shuster LLP.

Every year I review many companies' telemarketing compliance programs, processes and procedures. A common theme has emerged over the years: companies are really good at developing policies and procedures, but not so good at training their employees on these processes and procedures. Another common theme is that employees that are trained well provide better customer service and their employers experience fewer complaints from customers and regulators. Employees must be trained because the best policies and procedures are only as good as the execution by employees; and this requires training.

Training is also important because federal and state laws provide safe harbor provisions for companies that have written compliance policies and procedures, train their employees on the policies and procedures and a violation of the law occurs as a result of an error. By way of example, the Telemarketing Sales Rule (TSR) has a safe harbor. Under the TSR safe harbor, if a telemarketer can show that, as part of its routine business practice, it meets all the requirements of the safe harbor, it will not be subject to civil penalties or sanctions for mistakenly calling a consumer who has asked for no more calls, or for calling a person on the registry.

To meet the safe harbor requirements, the seller or telemarketer must demonstrate that:

1. It has written procedures to comply with the do not call requirements.
2. It trains its personnel in those procedures.
3. It monitors and enforces compliance with these procedures.
4. It maintains a company-specific list of telephone numbers that it may not call.
5. It accesses the national registry no more than 31 days before calling any consumer, and maintains records documenting this process.
6. Any call made in violation of the do not call rules was the result of an error.

So what is required to meet the training component of the safe harbor? At a minimum a company must:

• Train all new employees on legal requirements at the time of hire.
• Conduct ongoing training on at least an annual basis; semiannually would be preferable.
• Train all employees when new applicable laws are enacted.
• Train all employees when new policies or procedures are enacted by your company.
• Document all trainings sessions and the employees in attendance with sign in sheets that contain the subject of the training, the date of training, who conducted the training and the employee's signature acknowledging that he or she received the training.
• Maintain records of the training for at least two years.

I recommend that individual training records be kept in employee personnel files as well as a master training file. Take an opportunity to review your company's files. If the FTC initiated an investigation of your company, would you be able to produce records necessary to meet safe harbor requirements?

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