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Mistakes by HR reps can be particularly costly for employers

February 11th, 2014  |  Lorene Park

By Lorene D. Park, J.D.

Employers rely on human resources professionals to administer workplace policies and ensure the company’s compliance with applicable laws, but who makes sure that HR reps themselves comply? A Master’s degree and HR certifications will only go so far, and wise employers (and in-house counsel) will see to it that their HR reps fully appreciate the potential impact of their day-to-day interactions if an employer is later accused of improprieties. In many cases, avoiding a costly trial could be a simple matter of an HR professional carefully thinking through the consequences of an action before taking it. Below are some real-life examples of such missed opportunities and suggestions for improvement.

Hazarding a guess can be a hazard. When asked why a company decided a long-time employee could no longer perform her cleaning duties, an HR specialist said: “I don’t know why. I think she’s probably older now.” A court found this to be direct evidence of the employer’s age bias (Dupont v Allina Health System). Suggestions:

  • Plan ahead. Try to anticipate what might be asked before a meeting and think about the answers you might give. Imagine what your answers would sound like to a jury.
  • Don’t guess. If someone asks why a company is taking an action and you do not know, it is okay – even preferable – to simply say you will look into it.

Don’t stray from an interview plan. A nurse who did not complete her application process claimed that an HR rep spent much of a job interview discussing her pregnancy and deterred her from completing the process by saying she would not be hired while she was pregnant. This was enough to avoid summary judgment (Di Gioia v Independence Plus, Inc). Suggestions:

  • Prepare questions in advance. Tailor questions to job requirements and do not stray into areas prohibited by discrimination and other laws. For example, you can ask if an applicant can meet scheduling requirements, but avoid asking how much sick leave was taken at prior jobs or whether religious observances preclude weekend hours.
  • Avoid making promises. In some cases, comments made by HR reps in interviews about the prospect for long-term employment have been held by courts to give rise to implied contracts altering the at-will employment relationship.

Emails can come back to haunt you. On the same day a restaurant server was terminated, a senior benefits specialist sent an email to a third-party provider asking how to exhaust the server’s short-term disability leave, stating “we are wanting to exhaust her STD so that we can terminate her according to the terms of our policy. Help!” Based on that and the allegation that another HR rep told the server she had returned to work prematurely, a court found evidence of retaliation against the employee for exercising her STD rights (Spahic v Gaylord Entertainment Co). Suggestions:

  • Before hitting “send,” recognize that the intended recipient may not be the only one who ends up reading your email, and reread it to see how it might appear to a third party. Recognize that while memories of the context fade, emails can last forever and could be interpreted differently once the context is lost. Also note that personal email accounts may also be subject to disclosure in discovery.

Doing half the job is like not doing it at all. Although a sales rep complained to HR about a supervisor’s sexual harassment, and workers interviewed by HR confirmed his remarks on her breasts, the employer found the allegations unsubstantiated. A court found its investigation lacking because it did not interview all witnesses and further found it conclusions questionable (Miles v Wyndham Vacation Ownership). Similarly, an HR rep in another case concluded a male worker likely engaged in misconduct against a female coworker who reported severe sexual harassment but the remedy — a two-day suspension — may not have been adequate, a court observed, particularly since they continued to work together (Ortega v The Neil Jones Food Co).

  • Fully investigate complaints. Be responsive to employees who complain of discrimination, retaliation, or other misconduct and take them seriously. Adequately investigate allegations and draw objectively reasonable conclusions.
  • Properly enforce policies. Having a policy prohibiting sexual harassment and telling employees how to report it (as these employers did) will not help in court if the policy is not enforced properly. Draw reasonable conclusions from the investigation and impose an appropriate level of discipline for misconduct.

Suggestions for improving HR performance

There are many other examples of when an HR representative’s action or failure to act increased an employer’s exposure to liability, including: pressuring employees to sign agreements or questionable waivers (such as a statement that sex was consensual); failing to translate important information for non-English speakers; providing negative references; failing to maintain documents while litigation is ongoing; making statements to an applicant that imply he or she has a job before they actually do (possibly leading an applicant to turn down other jobs); and failing to enlist an independent investigator when a personal friend is accused of wrongdoing.

The list could go on, but the point remains the same: even the best HR departments will likely have room for improvement, and there is a lot of value in taking measures to ensure that HR is doing what it needs to do. These could include:

  • Auditing for compliance in key areas like, including: salary administration; recruiting and hiring; orientation; terminations; training; employee relations; and files/record maintenance.
  • Requiring HR reps to attend seminars or otherwise reinforce their knowledge of applicable regulations, key issues, and emerging legal trends.
  • Knowing the rules is not the same as understanding what compliance looks and feels like. Much like lawyers might observe other litigators in action or practice arguments before associates or mock juries to gauge reactions, HR reps should be required to take steps to get a real-world feel for the consequences of their actions. For example:
    • Practice, practice, practice. Have HR reps practice routine functions where stray remarks or small missteps could lead to big liability. Among other activities, have them interview an obviously pregnant applicant for a job requiring physical labor; give them faux personnel files with poor work histories and have them practice giving references to other employers that push for too much information; and have them practice their response to sexual harassment or discrimination complaints.
    • Seek feedback. Ask employees to provide anonymous feedback (e.g., through a questionnaire) about how they think the HR department is doing.

Taking these and similar measures will not only reduce an employer’s risk of liability but will also likely instill in employees a sense of confidence in management and improve the company’s reputation in the community and among shareholders.