I am not writing this for HR. I am not writing this for corporate America. After all, I represent employees in plaintiff-side employment cases. Mostly discrimination and retaliation. So I am writing this for you: The employee who has made a complaint about, e.g., discrimination to HR.
First and foremost: I am not your lawyer. My law firm does not represent you. We get hundreds of inquires every week. We only accept about 2% to 3% of those cases. Our firm does not represent you unless we offer you a written Engagement Letter that lays out the terms and conditions of representation. What I am providing here is my general philosophy and strategy. It is not legal advice for your specific situation. If you need legal advice on your specific situation, I suggest you contact a lawyer in your jurisdiction. If you contact my office, please understand that I do not personally take phone calls or respond to inquiries. Expecting otherwise is simply not realistic. Now, having provided that disclaimer, let’s dive into the topic at hand.
- Workplace grievances vs. unlawful conduct. Very important point: People at large need to understand this distinction. Just because a boss, manager, or coworker is an absolute jerk does not = something unlawful. Most workplace grievances are exactly that: just grievances. Conduct is not unlawful or illegal unless it involves discrimination based on something like race, religion, age, sex, etc. or retaliation for engaging in legally protected activity. Read up on retaliation in some of my other blog posts. The point: Most people have a grievance — but they don’t actually have a legal case. Certainly not a legal case that we would ever pursue.
- HR is not your friend. Let’s start here. Human Resources is essentially an extension of the company’s legal department. Fact. Now, there are some nice, well-meaning folks who work in HR. But don’t get that twisted. Those folks in HR all work for who? They do not work for YOU. They work for the COMPANY. That means they owe a fiduciary duty to the COMPANY. They exist to protect the COMPANY. They exist to mitigate RISK. In a perfect world, HR would objectively investigate allegations of, e.g., discrimination, retaliation, sexual harassment, etc. But in practice, that frequently does not happen. Instead, in cases that involve actual, ugly, egregious discrimination or retaliation, corporate HR departments frequently engage in the following:
- Cover-ups and destruction of key evidence.
- Efforts to smear the complaining employee’s name and reputation.
- Efforts to build a case against the complaining employee even if that involves coercing other employees to lie and back the company line / narrative.
- Bottom line: HR is not your friend. Always keep that in the back of your mind.
- BUT: If HR asks you questions, then give them straight answers. This is one of my favorites. Employee reports, e.g., sexual harassment to HR. Let’s just run this one: Employee named Sarah says that he manager named Joe has been sexually harassing her. Joe has been making highly inappropriate sexual comments toward and about Sarah. Asking her to get drinks with him after working. Talking about what he would do to her if he had the chance. Saying he could make her job a lot easier if she did some favors for him. So, Sarah contacts HR and says: I would like to report a situation involving sexual harassment. My manager Joe has been harassing me, making sexual comments toward me, and pressuring me to go out with him. I am very uncomfortable with all of this. So, HR starts its investigation. And HR wants to know exact specific details. When did it start? How many specific instances were there? What did Joe say? What did she say? Did anything happen between them? Does anyone else know? Were there witnesses? Are there documents, evidence, text messages? And what does Sarah do: Acts too clever by half. Thinks this is an episode of Law & Order. Refuses to cooperate with HR. Starts contacting lawyers and law firms. Says something like, “I didn’t want to talk to HR without getting legal representation first.” I understand where that thought is coming from. But how in the heck does that make any sense? Seriously. Don’t just repeat stupid things you have heard other people say. Don’t just do what you think they would do in an episode of Suits. Be real and be reasonable: You complained to HR about some sort of misconduct. HR has questions. So either one of two things are true here: Either you are lying or you are telling the truth. If you are lying, then it makes sense that you wouldn’t want to answer HR’s questions — because you probably can’t. BUT: If you are telling the 100% truth, then there should be any problem. You should be able to provide specific information and specific facts to back up your allegation. If you say, “It was a lot. I mean.. there were so many times … I just can’t remember all of them…” People have said that sort of thing to my office. And you know what that generally means? It means something like this: You are making things up or exaggerating. Because if you truly have been discriminated against or sexually harassed or worse, then you can provide specific facts and details. So, when HR asks for those specific facts and details, anybody with a real case would be willing and able to provide those details without a problem.
- Put everything in writing. Are you starting to understand how there’s a delicate balance here? HR is not your friend and you generally cannot trust them. But, you have to give them the facts and information that they need. Why? So they can investigate your allegations. But also so they cannot deny that they knew exactly what was going on. If you do not actually tell HR all of the ugly details of your situation, then they rightfully can deny knowledge of the problem. And if you only tell them verbally, on the phone, in a meeting, etc …. they can (and often will) still deny having knowledge or being on notice. How do you counter that? You put it in writing. That means you email it to HR (someone high up the HR ladder) and you copy or bcc your personal Gmail account. Why? Because as soon as the company fires you or you quit, the company will cut off your corporate email account and maybe even delete or destroy a bunch of evidence.
- More the above two points: We get a lot of calls from people who say something like, “HR wants to talk with me and ask me questions about my complaint. I don’t know what to do. What should I say?”. Again, I understand the instinct there. But it’s the wrong instinct. I tend to be somewhat suspicious of people (potential clients) who think like that. If you are being discriminated against, harassed, retaliated against, etc … Then you should be able to provide specific facts and examples to HR. What’s the alternative? Not to speak with HR? To act cagy? To give vague answers? Think about that for a second. How does that help your case or situation in any way? It does not. I don’t believe in hiding the ball. This is not a game. Do some companies play games and engage in misconduct and shenanigans? Yes, of course. But does that mean you should do it, too? No, absolutely not. Always be the one who is keeping it on the up and up. Always be honest.
- Should I quit? We get this one all the time. Let me be crystal clear: Whether or not you should quit a job or keep working that job is up to you. That is a life decision, a career decision, and a financial decision. That is not a legal decision. Some people have this idea that they will just stay at a job and hope they get fired — because they think that getting fired will give them a stronger case. I don’t go in for that nonsense. Sometimes a company will fire you. Sometimes a company won’t. Trying to game things out and make job decisions in an effort to set up a stronger legal case is ridiculous. If you are physically in danger at work, then you obviously quit. If the harassment and abuse is so intolerable that you cannot take it another day, then you obviously quit. But please do not contact my office and ask if you should keep your job or quit. That’s not a legal question. That choice is up to you. And basing that decision on what you think gives you a stronger legal case is ridiculous. If you are one of those people who think “I’m going to wait and make them fire me to set up a case against the company…” Then you should find other counsel.
Jonathan Pollard is a lawyer and writer. He is the founder of Pollard PLLC, an employment law firm with offices in Fort Lauderdale, Miami, and shortly St. Louis. Pollard has appeared in or on The New York Times, Bloomberg, NPR, PBS News Hour, Inc. Magazine, Business Insider and more. His legal work has been recognized by Super Lawyers and Chambers & Partners. The firm’s main office can be reached at 954-332-2380.