General Archives

Human Resources . . . Employee Relations . . . What’s the Difference?

Published on February 26th, 2019 by Alan L. Sklover

Sklover Working Wisdom Controlling Company Risks

Question: Recently, a female colleague reported to my Department Head that she felt she was being harassed. I received an email from someone in “Employee Relations” asking that I meet with her to be interviewed as part of an investigation.

What’s the difference between Human Resources (“HR”) and Employee Relations (“ER”)?

She said she is a lawyer, but that she does not represent my employer. Could that be?

Jessica
La Vergne, Tennessee

Answer: Dear Jessica: Your question is a very common one. It is wise of you to ask this question because it is always prudent, before you speak with someone about something that may be important, that you try to understand who they are, what they seek, and what their interests may be in speaking with you. Here are my thoughts:
Read the rest of this blog post »

“During an EEOC investigation, can my employer interrogate me?”

Published on November 25th, 2014 by Alan L. Sklover

Question: Dear Alan: First, I just want you to know that I have watched all of your website videos, and I love them!

This is my question: I filed a claim of age discrimination with the federal Equal Employment Opportunity Commission (“EEOC”) against my employer. They have assigned an investigator to investigate my complaint.

My employer has been notified, and now Human Resources wants to interview me about the EEOC Complaint I filed. Can they do this? Isn’t the employer supposed to rely on the EEOC to do the investigating? How can someone from HR claim to be objective? It sure feels coercive. Can I refuse to participate in the interview with HR, and ask my employer to contact the EEOC instead?

Reluctant
Tallahassee, Florida

Answer: Dear Reluctant: Having assisted hundreds if not thousands of clients who were “in your shoes,” I fully understand your (a) reluctance to participate in an interview/investigation, (b) distrust of your employer’s motives, and (c) concern that whatever you say, the employer will twist, take out of context, mischaracterize or even lie about. Read the rest of this blog post »

“If the EEOC is investigating a discrimination claim, can the employer question the employee at the same time?”

Published on September 23rd, 2014 by Alan L Sklover

Question: Dear Alan: I have watched many of your website videos and love them.

An employee has filed a claim with the U.S. Equal Employment Opportunity Commission (or “EEOC”) alleging age discrimination against her employer. This person has been assigned someone from the EEOC to investigate the claim. The employer was notified of the employee’s EEOC claim and the EEOC investigation has begun.

Here are my questions: First, can the employer contact the employee directly and ask to discuss the claim over the phone during the investigation? Isn’t the employer supposed to reply to the EEOC about the claim, and not be allowed to contact the employee directly?

Second, if the employer does contact the employee directly, can the employee refuse to participate in this discussion and ask the employer to contact the EEOC?

Lenore
West Ashley, South Carolina

Answer: Dear Lenore: Thanks for your compliment about our videos. We see them as an extension of the many written materials we now offer. Wait until you see our App!

1. Filing a complaint with a government agency does not change the basics of the employment relation. There are many, many different government agencies that oversee and regulate different aspects of the employment relation, including state, federal and local agencies that regulate, among other things, (a) workplace safety, (b) overtime and minimum wage issues, (c) claims of discrimination, (d) rights to unionize, and (e) whistleblower complaints.

When an employee files a complaint with one of these agencies, the agency investigates and sometimes participates in a resolution, but the participation of a governmental agency does not change the basics of the employment relation. Rather, agencies such as the EEOC are “outside” third parties, separate, distinct and outside of the employment relation. The EEOC’s sole job is to engage in an investigation and, possibly, prosecute filed claims to see it they see evidence of illegal discrimination.

We offer Model Letters entitled “Model Letter for Objecting to Illegal Discrimination – Age, Race, Gender or Disability – to Your Employer, that you can use to help yourself if you believe you have been illegally discriminated against. To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly!

2. One important “basic” of the employment relation is that employees must reasonably cooperate with the requests of employers that are reasonably related in some way to the operation of the company. As examples, if the employer requested the employee to (a) use time sheets or time cards, (b) refrain from using the office computers for personal purposes, (c) wash hands before leaving the lavatory if the work is in a restaurant, or (d) arrange for vacation time at least a month in advance, they would all be basic requirements of cooperation with an employer’s requests related to work.

It would not be reasonable to expect an employee to agree to matters unrelated to the operation of the company. As examples, an employee has no obligation to date the employer, or vacation with the employer, or engage in similar non-work-related activities.

Failure of an employee to provide reasonable cooperation with a reasonable, good faith request of an employer constitutes insubordination, which is legal grounds for firing “for cause,” to be avoided if at all possible.

3. Indeed, in many circumstances – including after a claim of discrimination has been filed – the employer has a legal duty to take steps to investigate and prevent any further improper behavior. If an employee claims she or he is being harassed, bullied, threatened, discriminated against or retaliated against, and the employer becomes aware of the claim, it then has a legal duty to look into the matter, and if appropriate, take steps to halt further misconduct. In turn, it is an employee’s duty to cooperate in these efforts.

If and when an employee files a complaint with a government agency about the conduct of the employer, it is entirely reasonable for the employer to investigate the matter, itself, at the same time. This is so that the employer can (a) make changes to avoid further harm or danger, (b) properly answer questions the agency might put to it, and (c) prevent further instances of what was complained of.

4. However, the employer cannot use a request for cooperation as a ruse to (a) intimidate, (b) humiliate, (c) retaliate or (c) pressure the employee to drop or change his or her filed complaint. The employer’s duty to investigate and the employee’s duty to cooperate both have limits: (i) reasonability and (ii) good faith.

The employer cannot insist that the employee sit down for 24 hours straight – without a break – to answer questions. The employer cannot ask the employee questions that are unrelated to the issue at hand, or that are embarrassing. The employer cannot make the employee undergo a polygraph – often called a lie-detector – test. Any such requests are unreasonable and suggestive of bad faith, and would likely represent an act of retaliation, and therefore should immediately be reported to both the EEOC and the employer, in writing, and in detail.

Feel you’ve been retaliated against? Use our “Model Memo Objecting to HR about Retaliation on the Job” to stop it and have it reversed. “What to Say, and How to Say It,™ just [click here.] Delivered by Email – Instantly!

5. Likewise, the employee cannot in this process ask colleagues to testify falsely or destroy documents; those would be equally unreasonable and improper. Such conduct by an employee during an EEOC investigation would be improper and a violation of law, as would an employer pressuring an employee to drop or amend his or her filed claim.

6. Direct communication between employee and employer during an EEOC investigation just might result in a negotiated settlement, assuming the negotiations were not mandatory or pressured. It is often the case that an employer approaches an employee who has filed an EEOC complaint and says, in one way or another, “Would you like to settle this dispute, and if so, how would you like to do so?” If the matter can be resolved that way, everyone is well-served, PROVIDED it is not a pressured negotiation, such as “Settle on these terms, or you are fired.”

It is for this reason that, almost always, once an EEOC investigation has begun, if the employer and employee agree on a settlement, the EEOC will insist on its right to approve the settlement, as a way of making sure it has not been coerced, and seems fair.

7. If the employee ever feels retaliated against, pressured, intimidated or otherwise pressured by an employer after the employee files an EEOC claim, a second, new claim of retaliation should be filed with the EEOC, which would be a more serious violation of law than is the originally claimed discrimination. If the employee believes that he or she is being treated badly in some fashion as a result of, in retribution for, or in retaliation for filing his or her original EEOC complaint, that should be brought to the attention of the EEOC immediately, in writing, for their further investigation.

Retaliation against an employee for exercising his or her legal right to file an EEOC complaint is a more serious violation of law than would be the discrimination, itself, and often results in greater penalties and jury awards.

It is for this reason that most employers try to avoid even the perception or appearance of bad treatment of an employee who has recently filed an EEOC complaint.

Lenore, sorry for the long answer, but the many nuances of this situation seem to require a step-by-step explanation in my response. As always, I hope this is information is helpful to you, and that the EEOC matter goes well.

My Best,
Al Sklover 

P.S.: If you are Suffering from a Bully Boss, we offer Model Anonymous Complaint to Your Employer About a Bully Boss, you can adapt and use. Shows you “What to Say, and How to Say It.” To get your copy, just [click here.] Delivered to your printer by email in minutes.

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“After a Complaint, the Employer’s Legal Duties to Separate and Protect.”

Published on July 10th, 2014 by Alan L Sklover

Question: Dear Alan: I am a school central office administrator who wrote a formal bullying/harassment complaint to the School Board against our Superintendent. As a result, the School Board held a special meeting and unanimously decided to hire an Outside Investigator to investigate my complaint.

I took sick leave for a week after filing the complaint due to stress, but now would like to return to work if possible. However, the School Board did not put the Superintendent on administrative leave while the investigation is being conducted.

So, when I go back to work he will still be in a position to bully me, retaliate against me, and make life miserable for me. He is a serial bully and I either had to live with it or do something. I do not want to put myself in a precarious position where things can get worse.

What is your advice on this matter? Request that the Superintendent be put on leave? Request to work from home? Take medical leave?

I love your website and have learned lots from it. Thanks for your help.

Belinda
Layton, Utah

Answer: Dear Belinda: The School Board is doing one half of what the law says it must do. It would be wise to remind it of the second half of its legal responsibilities to you:

1. After receiving a complaint of bullying, harassment, discrimination, hostility or the like, an employer has two legal duties: (a) first, to Separate and Protect, and then (b) second, to Investigate. When an employer is in receipt of a complaint about another employee, the law provides that the employer has two legal duties to the person who submitted the complaint. The first duty – and truly the most important of the two – is to separate the parties to protect the complainant from further possible harm by either (a) more bullying or (b) retaliation for having filed the complaint. It cannot simply wait until it is certain of what took place to fulfill its primary duty to you, that is, to protect you.

Just in case you haven’t yet put your complaint into writing, we offer a Model Complaint of Discrimination, Harassment or Hostility you can adapt to your own facts, events and circumstances. “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly! 

2. There are many different ways an employer can fulfill its legal duties to “Separate and Protect.” Here are just a few of the ways an employer can fulfill its duty to “Separate and Protect”: (a) change the duties of one or both of the parties to avoid direct contact; (b) change the location of employment of one or both of the parties to avoid direct contact; (c) change the days and times of employment of one or both of the parties to avoid direct contact; (d) place one or both of the parties on leave of absence to avoid direct contact; (e) require that all communications between the parties be supervised; (f) require that all communications between the parties be in writing; or (g) devise some other means of both “separating and protecting.”

3. It is not the employee’s decision to make, but the employer’s decision to make, regarding which way or ways “separating and protecting” should be accomplished. Because it is the employer’s duty to fulfill, it is the employer’s job to determine which way or ways it should be accomplished. In fact, it is important that the employer make this decision, because if additional abuse by either (a) continuation of the initial bullying, harassment, discrimination or hostility, or (b) retaliation, takes place, it is the employer who will be solely responsible for any damages that ensue.

4. That said, there is nothing wrong with the employee – or his/her physician or therapist – requesting that one or more measures be used to “separate and protect.” You and your physician and/or therapist know you best, and know what you believe would be best to avoid what you refer to as “the precarious position where things could get worse.” First, if you are seeing a physician or therapist to help you deal with this bullying, I suggest that the physician or therapist might be the one to best guide you in this choice.

Any suggestion from you to the School Board on this subject should be (a) in writing, (b) quite respectful, (c) clear in that your suggested measures are suggestions, only, and not demands, and (d) clear in how your suggestions would, in your mind, best accomplish the task at hand: protecting you from further bullying and possible retaliation.

5. Like all important communication regarding workplace issues, your communications with the School Board should be in writing and sent in a “verifiable manner.” As I always say in this context, “Say it with your fingers, not with your lips.” When you communicate by spoken words, exactly what you say, what you didn’t say, and exactly how you said what you said, is not often remembered correctly, or can be mischaracterized, and often a subject of later debate.

However, if you “say” it in writing, and you send it in a “verifiable manner” such as email, UPS or FedEx, then these issues will not likely arise, because you have created a solid “record” or “history” of what was said, by whom, to whom, when and in what way. That memorialization of communication is a critical part of successful navigation and negotiation at work.

I strongly recommend that you write to the School Board, remind its members of their “duties to separate and protect,” and consider suggesting the way or ways you think it would best do just that.

We offer a Model Memo for Requesting Protection from Further Abuse and/or Retaliation after Filing a Complaint. It shows you “What to Say, and How to Say It.” To obtain a copy, just [click here.] Delivered by Email, Instantly

Belinda, your concern is real and your thought about taking a step to address it is both wise and brave. I hope this confirms that you are on the “right track,” and helps you travel down that path. My hat is off to you for having the courage to stand up to a bully boss. Bravo!!

My Best to You,
Al Sklover

P.S.: If things don’t work out, do not despair and do not resign. Instead, consider a “Model Involuntary Resignation.” It shows you “What to Say and How to Say It,™” To obtain a copy just [click here.] “What to Say and How to Say It”™ 24 Hours a Day. Delivered Instantly by Email – Instantly. 

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“Recording Conversations with Your Boss or HR” What You Need to Know

Published on May 6th, 2014 by Alan L Sklover

“When it comes to privacy and accountability,
people always demand the former for themselves and the latter for everyone else.”

– David Brin 

ACTUAL “CASE HISTORIES”: I remember it like it was yesterday, although it was many years ago. Alexandra, Director of Nursing Services at a 600-bed hospital in central Georgia, contacted us for help in negotiating her severance. Alexandra was a designated member of the Hospital’s eight-member Management Team. Each member had particular responsibilities in running the hospital, including Director of Facilities, Director of Education Services, Director of Nursing Services, Director of Finances, and the like. 

Alexandra’s hospital and another one that was much larger had merged, and since the combined institution did not need two Directors of Nursing Services, she had been chosen for position elimination. She understood the rationale, and accepted it as an unavoidable fact of life. What Alexandra did not understand, and what Alexandra thought was eminently unfair, if not illegal, was the how much severance she was offered in relation to the severance that was offered to other Management Team members of her hospital. 

Of the eight Management Team members, Alexandra was one of only three with a Ph.D. Of the eight Management Team members, Alexandra had the longest tenure working for the hospital, 14 years. Of the eight Management Team members, Alexandra had the most employees under her supervision. Of the eight Management Team members, Alexandra was the only member who was female. 

What upset Alexandra so much was that some members of the Management Team had been given a year of severance, and some had even been given two years of severance. Alexandra was given just three months of salary continuation as severance. 

To find out why she was provided severance of just one-eighth of the severance provided to some of her seemingly less-deserving peers, Alexandra called Martha, the acting Human Resources Director, who was not a Management Team member. After expressing her upset over her severance, Alexandra asked Martha why there was such a disparity in severance packages. Martha was quite candid, “Of course you know why. It’s because we are considered ‘just girls’ around here. It’s because you are not a member of the ‘Boys Club.’ It’s because you have a husband. And it’s because they think – in fact, they have even said – you should be home with your kids, anyway.” 

Alexandra was not surprised at all to hear what Martha said. Actually, she was pleased, because she had audiotaped her conversation with Martha, and it was clear and quite convincing. She then made copies of that recording, just in case she accidentally lost the original. 

As you might imagine, the recording was quite convincing in negotiations. And as you might imagine, the negotiations were very successful.   

LESSON TO LEARN: Whenever we need to “prove” what took place, or when, or why, there are several types of evidence we can use: (i) documentary evidence, which usually means some type of papers, (ii) physical evidence, which means something you can see or feel, (iii) circumstantial evidence, which means the various facts surrounding what took place, and (iv) testimonial evidence, which is the spoken word. 

One kind of testimonial evidence that can be especially convincing is “spontaneous speech,” that is, what someone says on the spur of the moment, usually when they do not know their words are being recorded. 

Employees who feel aggrieved due to treatment in an illegal, improper or unfair way, often have an urge to make a recording of their conversations with their boss, their colleagues, or Human Resources. In earlier days, that required a recording machine that was large, vibrated, hummed and sometimes malfunctioned. These days nearly every “smart” phone can do the same job without so much as a hint of detection and with clarity and duration never before possible. It’s tempting, and it’s often quite useful, but there are some things an employee contemplating doing so should be aware of, and bear in mind.   

WHAT YOU NEED TO KNOW AND CONSIDER  Read the rest of this blog post »


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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