Certification: Legal Aspects

Subject: Certification: Legal Aspects
From: Daniel_W_Voss -at- CCMAIL -dot- ORL -dot- MMC -dot- COM
Date: Fri, 9 Aug 1996 12:13:00 -0500


I have yet to see any of the pro-certification
lobby address the problem of litigation. If the
STC sets itself up as a certifying body, and then
if employers use this certification as a criterion
for employment, I guarantee you that within a year
some individual will sue both the STC and a potential
employer for discrimination, extortion, and collusion.
And, unless each and every state gives legal status
to the STC certification process, you can also throw
in fraud. Hopefully, the STC legal department will
look long and hard at this issue before the 'join our
club or don't work' crowd has its way.

J.P.: You raise a valid concern on the litigative risks attendant upon
certification. This is one of several concerns that will be addressed in the
comprehensive study STC is in the process of commissioning on the subject.
At the 42nd STC Conference in Washington in 1995, the panel of experts on
certification included a extremely knowledgeable attorney who authored the
Certification and Accreditation Law Handbook.
The attorney saw 3 major areas of legal exposure: 1) antitrust, 2)
affirmative action, and 3) third-party tort liability. The first ties in to
your "join our club or don't work" crowd. The second relates to potential
cultural bias in the certification test instrument. The third may be incurred
if certified practitioners perform in an incompetent or unethical manner.
Other potential legal land mines lurk in the areas of grandfather clauses
and recertification (e.g., can someone pass a test, go "dormant" for 10 years,
allow key skills to atrophy, and then reactivate the certification for a
renewal fee, without retesting?).
The attorney did not mention fraud; since that charge implies intentional
deception for self-profit, I'm not sure it would be an issue... no matter,
however... there are obviously plenty of others!
Like you, the attorney said, "Expect litigation. It will happen."
However, he also said that the risk was manageable. One option is
insurance, although it's costly and fraught with escape clauses.
Ultimately, the best defense is a well-run certification program--one that
is reasonable, objective, valid, and, above all, consistently applied.
Rest assured that all these areas--along with the equally tangled tax
thicket--will receive due consideration by STC and its legal experts as we
systematically explore this complex and controversial subject.
We enter this process with an open mind--we may end up certifying, we may
not. But we certainly intend to cover all bases.
If you want my opinion, a well-thought-out, properly executed certification
program would be a valuable tool for enhancing our professional image. On the
other hand, a hastily developed program would be an unmitigated disaster.
If we can't ensure the former, we certainly won't undertake the latter.

Dan Voss
STC Certification Committee

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