Does online learning and video really increase liability?

Contributors: Darlesa Cahoon, Margaret Kinlay, Steven Robertson, Onno Schuit, Eric Thompson, Ross Woods.

 

The legal department of a particular organization had been increasingly concerned about how video training can create liability for the organization.

"We feel that we take extreme care with every aspect of our training: diversity, policy, procedure, safety, and compliance. Unfortunately, it seems that you just cannot please all the people every single time, especially when someone wants to sue you for a gazillion bucks."

"Yet the rest of the world seems to be using more and more video in training, I find those around me more and more concerned, and requesting limitations about what we capture and who we can show video to even as the need increases to deliver more training to more people in more locations around-the-clock.

First, what are the specific legal risks?

• Someone in a scenario may say something in a way that someone might consider contrary to best procedure even though it has been vetted by dozens of subject matter experts before launching. Someone might handle a tool in a way that is acceptable to all in the industry, but could arguably, potentially appear unsafe if an injury occurs. The problem, they say, is that it is easy to point to a video and make a case, where live training is not captured and cannot be held to the same level of scrutiny.
• Showing a video (alone) does not show that any mandatory (i.e. legally required) information and skills were acquired.
• Failing to comply with good practice, or where required, industry best practice. (Sometimes peole are sued for not compliying with best practice, even when they comply with all minimum standards.)

Solutions

• Add disclaimers saying that this training does not make you certified to do this task and must be accompanied by on-the-job instruction and practice. Talk to your supervisor if you have questions.
• Define the context of the training.
• Check that material is kept up to date.
• Be cautious about what you present in videos. Run things by your compliance officer, HR manager and legal counsel if you have any questions.
• Add an asssessment and certification program to ensure that trainees have picked up the right messages from the videos.

Best hint

"We produce training videos for the financial services industry where compliance is absolutely essential and where regulation is constantly changing. We use comedy and drama to give greater flexibility. The regulatory messages are drawn from the video but can then easily be updated as regulation changes, giving the video a longer lifespan."