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:

1. If you ask Human Resources or Employee Relations representatives, ”What is Employee Relations?” they will likely tell you the truth . . . but, unfortunately, not the whole truth. The answer given to nearly all of my clients has been “The difference between the two is that Human Resources is like an “umbrella” department that works with employees in a variety of ways, and Employee Relations is one “rib” of the umbrella.

That is, you will likely be told that Human Resources has five general functions: (i) recruitment and hiring, (ii) training and development, (iii) compensation and benefits, (iv) strategic workforce planning, and (v) “Employee Relations.” I would not argue with that list of the five general functions of Human Resources, but that answer does not constitute a complete answer to the question.

2. You will probably be told that Employee Relations addresses just what its title suggests: “Relations between employees.” These presumably would include such things as employee morale, employee communications, employee engagement, employee performance appraisals, and encouraging an overall environment of fairness. And, too, these would likely also include claims of discrimination, harassment, bullying and the like. In my decades of experience, that certainly is not the whole truth, and quite often not the truth at all.

3. The more complete truth is that Employee Relations staff are investigators, not seeking the truth or fairness, but rather to assess “How much risk to the company (and/or its senior management) is this employee, or what this employee knows or says?” Invariably, Employee Relations staff request an interview with an employee, rarely provide the employee with an agenda for the meeting, and don’t tell the employee (a) how to prepare, (b) who else will be in the room, (c) whether the session will be recorded, or (d) whether the employee is the subject of the investigation. Truth and fairness? Nonsense is the only word that comes to my mind.

4. “Employee Relations” would be better called “Evaluation of Risk.” Inevitably – and not coincidentally – Employee Relations staff are almost always employment lawyers, trained and experienced in evaluating the merits, assessing the risk, and identifying defenses to, any possible “case,” that might be brought by you or by others. By a “case,” I mean a claim of harassment, discrimination, retaliation, bullying, assault, whistleblowing and the like.

I have not, in 36+ years of helping employees deal with Employee Relations staff, seen one single instance of an Employee Relations investigation find any wrongdoing by any manager of any company. Not once. Rather, it is almost the case that “We have not found proof of any wrongdoing.” A coincidence? Maybe, but not likely.

5. Don’t be fooled if you are told by an Employee Relations staff person, “I am an attorney, but I don’t represent anyone in this investigation; I am only a neutral fact-finder.” Many of my clients have been told this fiction, and I think that this, too, is complete Nonsense. If an attorney works for an employer, and gets paid by that employer, let’s be honest with each other: they also represent the employer’s interests. I view any such claim to be nothing less than a complete fraud.

This is the “test” I commonly used when told this dishonest thing. I say “Oh, you are not the employer’s attorney. Good. So, you will share with my client copies of your notes from his or her interview?” The answer ALWAYS is, “I can’t do that . . . it’s attorney-client privileged.” Silly, no?

6. Are you required to cooperate with Human Resources and Employee Relations staff if they are working on an “investigation?” The unequivocal answer is “Yes, you are.” On this question, there is only one answer, and that is “Yes.” An employee owes a duty to his or her employer to cooperate in any kind of investigation that it is conducting, within very broad boundaries, with few limitations.

Called to Investigation Meeting by HR, Employee Relations or Legal? You need to do your best to ask the necessary “who, what, when and “why” of the meeting, and to “set the stage” for what’s to come. To help you do so, we offer a “Model Letter Asking the Important Questions BEFORE an Investigation Meeting with HR, ER or Legal.” To obtain a copy of this useful model letter, just [click here.] Delivered by Email – Instantly!

7. Do you have a right to have an attorney with you when you speak with Employee Relations? The answer is “No,” but, then again, sometimes the answer is “Yes.” The simple answer is that you don’t have a right to have an attorney with you, or on the phone, during any Employee Relations interview.

However, if you have your own attorney who is assisting you with this matter, then no attorney – whether an employee of your employer or an attorney who is acting as an “outside counsel” – has a right to communicate with you about this matter, unless that employer’s attorney (a) has received the consent of your attorney to do, or (b) your attorney is present when the questioning is done. It is Attorney Ethics Rule 4.2 in almost all states. Most attorneys are unaware of this Legal Ethics Rule, or claim to be. So, if you present this situation to an attorney working for or with Employee Relations, you can have your attorney in attendance, physically or telephonically, at his or her choice.

8. Lastly, what are the advantages of having an attorney with you during an interview or a discussion with Employee Relations? There are several advantages, including (1) having someone to “make a record” of what was asked of you, and what was said by you. The notes of the Employee Relations Investigator belong to the company. If a Court Reporter is taking down the questions and answers, you probably will not be entitled to see – or correct – a copy of the transcript.

Making a record of what was asked and what was answered is the only thing that prevents the Employee Relations Investigator from (a) making “mistakes,” (b) “forgetting” things asked and answered, and (c) remembering what was asked and answered entirely differently than you do.

(2) Additionally, if you do have an attorney, your attorney can also hear and object to questions that are confusing, questions that are misleading, and questions that ask for information no Investigator has a right to ask, such as what you and your spouse discussed, what you and your attorney discussed, and whether you have filed any complaints with state or federal employment rights agencies.

If you don’t have an attorney, AFTER a Meeting with HR, Employee Relations or Legal, you need to make a record of what took place, what was asked, and what answers were provided. To do so, we offer a “Model Letter Memorializing What Took Place at the Investigative Meeting.” To obtain a copy of this useful model letter, just [click here.] Delivered by Email – Instantly!

Jessica, thanks for your interesting question, and one that I believe more people think about than are willing to admit it. Whatever you decide to do, I hope you do it with Working Wisdom. And, too, I hope this proves to be a helpful guide in moving forward.

My Best,
Al Sklover

P.S.: If you would like to speak directly about this or other subjects, Mr. Sklover is available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.] Evenings and weekends can be accommodated.

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