“As an HR Manager, if I report apparent misconduct, am I protected if the apparent wrongdoer retaliates against me?”

Question: Hi, Alan. I am an HR Manager at a large privately held manufacturing company. Several months ago I contacted the VP of Human Resources and reported to him that there were strong indications that a Senior Executive in the company was having a sexual relationship with a subordinate employee. The relationship was against our company anti-fraternization policy, which is published in the Employee Handbook.

In addition to my concern that a Senior Executive was violating an established policy, I also felt obligated to report the relationship out of concern for a potential sexual harassment lawsuit; though the subordinate employee had not complained of sexual harassment, that did not mean she would not do so at a later time, claiming it was coerced.

Following my report to the VP of HR, I learned from him that he opted not to address the issue to higher management, but chose instead to speak only with the Senior Executive, during which time he told me that he told the Senior Executive it was me who sent in the report. Now I believe the Senior Executive is retaliating against me. I want to leave the company at this point, with a fair severance package.

I contacted an attorney recently; he told me that federal and state law do not protect me against violations of company policy. He also said I was not protected by “whistle-blowing” statutes. He said my leverage to negotiate a severance package is not large. I think this might represent a breach of contract. What do you think? Thank you!!

HR Manager
Portland, Oregon

Answer: I respectfully disagree – on many points – with the attorney you consulted. (Attorneys have a habit of disagreeing with each other, don’t they?)

Retaliation requires three components: (1) engaging in “protected activity,” which would seem to include your reporting the apparent sexual relationship; (2) negative employment action, which would include demotion, reassignment and being fired, which I am unsure of, from what you have written, and (3) a causal relation between (1) and (2). In your case, whether you have yet suffered a “negative employment action” would seem to be the key factor to consider. I would need more facts to do so.

–As to the law, I believe that it is a likely violation of both Federal and State law for someone to report what appears to be sexual harassment and to suffer retaliation as a result.
–As to the law, I believe it is at least an “implied contract” in your state – as it is in New York – for a company to say to employees, in effect, “If you report wrongdoing, you won’t be retaliated against,” and then to permit retaliation.
–As to “negotiating leverage,” I believe you likely have considerable leverage in negotiating a severance package, from the facts, events and circumstances you describe.

Effectively fighting back against retaliation at work is a matter of bringing to the attention of your senior-most management what happened, requesting an investigation, and asking for what you think is best – you say a severance arrangement. Make sure, whatever you do, that you make it clear that you are not resigning.

I recommend you review the several articles and videos on our Blogsite regarding Retaliation at Work. To do so [click here].

I recommend you also consider purchasing a copy of our “Model Letter Objecting to Retaliation”. To do so [click here].

I’d also recommend you try your best to locate and consult with an attorney who might be more in line with your own thinking – which is very much “on target.”

If you would like to obtain a list of attorneys in your area [click here].

The sooner you take action the better; retaliation usually gets worse over time.

I hope this is helpful. You’re in a tough spot. Have faith that standing up in this way is far better than permitting yourself to be further retaliated against.

Al Sklover

© 2009 Alan L. Sklover, All Rights Reserved.