Published on October 18th, 2016 by Alan L. Sklover
“The pessimist is disappointed by the direction of the wind.
The optimist is certain it will change.
The realist adjusts the sails.”
ACTUAL CASE HISTORY: This really happened to me on the first day of my second job as an associate attorney:
I was wearing a new suit and a favorite tie that day, but because it was warm and my shirt collar was a bit tight, I undid my top shirt button and pushed my tie up to keep my collar near-closed.
A meeting had been called by the firm’s senior partner to introduce me and two other new attorneys to the legal staff. There were perhaps thirty attorneys sitting in a large conference room. I had been interviewed by the senior partner six weeks earlier, and he had been quite gracious, warm and engaging. He told me something like “Alan, you are clearly the person we want and need for this job.”
When the senior partner arrived, he sat at the head of the large, shiny, wooden conference room table, and began the meeting. Each of the three of us who were on our first day were asked to come forward to be introduced. When I was called, I stood up, walked to the head of the conference room table, stood next to the senior partner, and smiled.
Without saying a word the senior partner moved closes to me, grabbed my neck with his right hand, buttoned my collar with one hand – scraping it deeply as he did – and said, “We button our top buttons here.” As he did so, one of his finger nails scratched my neck quite deeply. He then went on to introduce me. The rest of the day I worked with several small blood stains on my collar and tie. I decided then and there, on that first day, to seek another job at another firm, which I secured about a month later.
Should I have gone to HR to complain? I didn’t do so, thinking only to myself, “Just find a new job and get the heck out of here,” which is what I did within six weeks or so. Though it was many years ago, and standards of conduct have changed, even then it was an unusual departure from commonly recognized standards of acceptable workplace conduct. At least I think so.
LESSON TO LEARN: So many people come to me after an “unusual event” or “bad treatment” at work with the question, “Should I report this to Human Resources?” It is always a hard call to make. Why? Because there are always so many significant “pro’s and con’s” in doing so, or not doing so.
In a perfect world, any kind of misconduct should be reported to those whose job it is to deal with such issues. But, we don’t live in a perfect world. No matter what anyone tells you, what you say to your Human Resources representative will be shared with others, quite possibly the person whose misconduct you are reporting, or his/her managers, or even friends. Though retaliation in the workplace is almost always prohibited by company policies, and often by the law, retaliation in one form or another is so common that you can almost count on it rearing its ugly head in one form or another.
Pro’s: On the one hand, if you report misconduct to Human Resources, there is a good chance the misconduct will be halted, at least in the short term. Chances are pretty good that, at the least, a warning will be given to the person in question, formal or informal. Doing so also gives you certain legal rights, and future credibility if needed in the future. No one can ever say “If it was such a problem, why didn’t you report it?”
Reporting misconduct to Human Resources gives HR the legal obligation to at least look into the report. And, if the misconduct is repeated or gets worse, your employer will have legal liability to you, which they would not have if you failed to make a report. I can’t tell you how many times I have told clients: “It would have been helpful if you had objected to this, or even reported it, in an email.”
Con’s: On the other hand, if you report an incident to Human Resources, the fact that you did so will undoubtedly become known to the person whose conduct you reported or complained of, because Human Resources must communicate with them as part of its investigation. Never, ever, ever think that you can say to Human Resources, “I am reporting this to you, but I want you to keep it confidential.” That is like telling the police the name of a person who you know committed a robbery, and asking them to promise not to speak with that person.
Additionally, reporting an event of misconduct can pour cold water on an otherwise productive relation, either with the person who engaged in misconduct, and perhaps, too, his or her friends. And, too, if someone makes a lot of complaints to Human Resources, their complaints start to lose credibility after a while. Those viewed to be “constant complainers” generally don’t go far or last long.
Why’s and Why Not’s: It is sad, but undeniable: filing a report, complaint or objection with Human Resources can be a risky thing to do. Should it be? Never. But it can be, that is for sure. And doing so when not truly needed may diminish your ability to do so in another circumstance when it is truly needed. Would you believe a complaint from an employee if he or she made a new complaint, about a new person, each and every day, for a year? Of course not. Judicious use of your ability to go to HR is a must.
One thing must be borne in mind: Human Resources representatives are NOT to be presumed to be “on your side.” Their very job description is clear that they are always “on management’s side,” which might or might not be, depending on the facts and circumstances, “on your side,” too. Human Resources representatives are surely not your “friend,” or your mom, or your lawyer, or any kind of “company police officer.” Their job is not to bring about fairness or to protect employees but, as it says in their title, to “manage human resources.”
So, there are “pro’s and “con’s” in both reporting and not reporting an incident to HR.
The truly best answer to the question “Should I report this to HR?” is “Maybe, depending on the outcome of a careful and thoughtful consideration and weighing of the “pro’s and con’s” with a strong emphasis on the word “careful.”
In reading this newsletter, please bear in mind that nothing at all in this newsletter is meant to suggest that you should not take steps that are needed to protect yourself, or that you should ignore any company requirements that you look the other way when you observe impropriety. Rather, we seek to help you make the best decision regarding whether or not to report, object or complain.
WHAT YOU CAN DO: Here are eleven considerations to weigh before deciding your own course of action if an incident of misconduct or impropriety takes place either toward you, or in some way involving you, at work:
1. Is there any possibility you have misconstrued, misperceived or misunderstood what you believe took place? It would be a shame if you filed a report or claim of wrongdoing with Human Resources and you were, in fact, incorrect in what you reported. It is just a fact that at times each of us might misperceive, misconstrue or misunderstand what another person said, did or meant. If you are a human, you are fallible.
To the degree that you may be wrong about (a) the identity of the person involved, (b) what you heard, observed, read, felt or experienced, or (c) the reason(s) it took place, you might want to hold off on making any report, complaint or objection to Human Resources, at least until you are reasonably certain your initial thoughts were correct.
2. Is there any possibility that your emotions – including among them fear, anxiety and anger – may be guiding you more than they should? I can admit it: my anger sometimes makes me experience things as more upsetting, urgent, important and serious than I see them later when I am calmer. Might this same dynamic be a part affecting or guiding you? Give it some thought.
3. Before reporting something to Human Resources, ask yourself, “What is my goal or goals in doing so?” If you don’t know where you want to go, chances are you won’t get there. Said another way, what are you hoping to get from reporting something or someone to HR?
Here are some common ones: (1) a halt to behavior that upsets or threatens you; (2) personal revenge for a previous insult or slight; (3) an independent investigation of what took place; (4) firing of the person or persons who are engaged in the activity you are reporting; (5) reasonable confidence that you will not be considered in violation of a rule or policy for not reporting it; (6) a significant financial settlement, perhaps as part of a departure from the company; or (7) ensure you have a stronger case in the event you need to hire a lawyer and/or go to Court.
I would offer that the odd-numbered items [that is, (1), (3), (5) and (7)] above are commonly achieved after making a report or filing a claim with HR. I would also say that the even-numbered items above [that is, (2). (4) and (6) ] are less likely achieved, and if they are your goals, you might give additional consideration to approaching Human Resources.
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4. Is what took place (or is taking place) a serious threat to you or your important interests, or, alternatively, a relatively minor insult or inconvenience? The second most important factor to consider is how important the wrongful conduct may be to you and your interests. If someone has criticized you, is it closer to an opinionated petty insult (“I don’t think Mary dresses appropriately”) or has the person made a serious false allegation against you (“Robert is a convicted child molester”). The former might be simply ignored, but the latter – especially if it was said or written to others – could damage your personal and professional reputation forever.
What are your important interests? As a simple list, which is definitely not all-inclusive, you might consider these to be “important interests”: (a) personal health and safety, (b) personal and professional relations, (c) personal and professional reputation, (d) employment and career, (d) significant financial interests, and (e) your sense of decency, self-respect and right-and-wrong.
Give yourself a moment, an hour or a day to pause and consider this factor. You might also want to ask a loved one or close friend their own view as to whether this is a more of a serious threat or more of a minor insult.
If your important interests do not seem to be at stake, that would suggest that you not file a report or complaint with Human Resources about the event, circumstance or incident.
5. Is what happened a likely one-time event, or is it likely to happen again? If someone “tried something,” and you successfully deflected it, rebuffed it, halted it, or ignored it, is it likely that the person will try again, until successful in achieving his or her objectives? Even if something took place that is against what you think is even remotely acceptable office conduct, do circumstances suggest that it is a one-time event, or likely to happen again?
As an example, only, if a colleague put her arms around you, and if you then that such a hug “violated your comfort zone,” do you think she will do it again? When she hugged you, she might not have known that it was “unwanted.” The real question: Is she likely to do that again? If not, it’s probably not something to report to or complain about, to HR. But if she tried it two more times, then it may well be wise to object, complain and report it to Human Resources.
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6. How “verifiable” is the event or misconduct that took place? The real point here is that, whenever we have a “he-said-she-said,” a “he-said-he-said” or a “she-said-she-said” situation, we rarely find a report, objection or claim to be successful.
On the other hand, if we have (a) a video or photos of what happened, (b) an audio of what was said, (c) a copy of the text, email or document, or (d) three credible witnesses, or the like, we expect that a report, objection or complaint will more likely be deemed credible, and therefore more successful as to its desired outcome.
7. Might your failure to report the event be viewed as misconduct, by itself? Some company policies actually require that you report wrongdoing that you believe to be criminal in nature, such as embezzlement, theft from customers, or “insider trading,” that is, using confidential information to buy and sell stocks. Your being aware of such activities, without reporting them, might just be considered misconduct by you. While such events do not happen often, they do happen.
It is most urgent that you consider such obligations if your job includes responsibilities to identify and report transgressions, such as those in (a) compliance positions, (b) legal affairs, (c) regulatory matters, and (d) investigative roles.
Reviewing your Employee Handbook and/or Employment Policies every now and then to familiarize yourself with these limited circumstances may be a wise and prudent habit.
8. How likely is it that retaliation against you (or other negative consequence) might take place if you contact HR? A common, major source of concern about filing a report or complaint with Human Resources is that doing so will be held against you in some way, either now or sometime later when, perhaps, you are being considered for a raise or promotion. This thought can weigh heavily on your mind in this circumstance.
There are some things to consider in this realm: (a) what is this person’s ability to make decisions about you, such as the amount of your bonus, or whether you will receive a raise or promotion?; (b) if the success of your performance is objectively measurable – such as the amount of your sales in a fiscal year – then there would likely be less chance to be affected by someone desiring to retaliate; (c) if you are likely to be able to find a new job elsewhere in a brief period, possible retaliation would likely be less of a concern for you; (d) if your employer has a track record or reputation for dealing with such issues honestly and forthrightly, that is surely better than if its record is one of tolerating retaliation, or retaliating, itself.
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9. How confident are you that you can maintain your composure and motivation if Human Resources does not help you? Let’s say you do report an incident or file a complaint with Human Resources, and you never hear back from them about it. You then email Human Resources and they tell you “It is being looked into” five months in a row. That is a distinct possibility. Put simply, don’t presume you will get any justice, relief, interest or even response from HR, because inordinate delay, sometimes seemingly lasting forever, commonly takes place.
If that happens to you, you will likely feel disappointment, disillusionment, perhaps even anger, even with yourself.
Don’t get me wrong: you may get the assistance and support from HR that your situation deserves. That is a distinct possibility. But so is silence, or worse, not being taken seriously. It is not my point to discourage you from making a report to, or filing a complaint with, Human Resources, but rather just to remind you that the outcome you seek may not be the outcome you find.
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10. Are there any reasonable – and reasonably effective – alternatives to address the situation and achieve your objective(s)? Very few situations in life are limited to “do-or-don’t,” ”yes-or-no” or “on-or-off” alternatives. There are almost always “half-way” measures that we can, at the least, try first. However, while some of these alternatives are less risky, they may also be less effective. And, too, they may pose risks of their own.
If you are concerned about misconduct, but you are also afraid to file a complaint, you might consider alternatives such as these: (a) sending an email to the person whose conduct you are concerned about, politely asking him or her to refrain from it in the future; (b) sending an email to that person, in which you say, in effect, that you believe that the conduct is improper or illegal, and ask in a rather direct tone that it not recur, (c) sending yourself a “memo to file” – with a “blind copy” to you home email – describing the misconduct and your concern that if you report it, you may suffer retaliation. You should also (d) print out a “hard” paper copy to take home. Lastly, some people have found success in (e) having a close friend send an anonymous letter by U.S. mail to Human Resources mentioning having heard about the misconduct.
11. Those in the compliance-related functions must apply a special level of analysis due to potentially inconsistent obligations. Those who are engaged in compliance-related functions – including compliance officers, regulatory staff, risk management, quality control, and the like – need to engage in an extra level of analysis due to potentially inconsistent obligations.
First, by statute, regulation, policy or agreement, might you be obligated to report your concern to another function other than Human Resources, such as your Board Audit Committee, a governmental agency, or even a special monitor or overseer?
Second, might a statute, regulation, policy or agreement require that you do not report your concern to Human Resources to prevent conflict of interest, breach of confidentiality, or similar issue?
Third, how might your obligation to report something affected if it is the Human Resources department, or the senior executive(s) to whom HR reports, are at the heart of your concern?
The “fence” on which such professionals always sit is not an easy one to sit on. It is suggested that in such circumstances, consultation with independent counsel or with a seasoned professional on a confidential basis may be warranted.
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These alternatives may be useful in that they (i) make a near-contemporaneous record of what happened, (ii) make a record of your displeasure or concern, and (iii) noting your fear in getting Human Resources involved.
These 11 factors are those that seem the most important to weigh in deciding whether or not to file a report, or make a complaint, to HR. Of course, there are others, too, depending on your unique facts, events and circumstances. Give yourself the opportunity to weigh them wisely, to enhance the likelihood that you will, in the end, make the wisest decision for yourself.
P.S.: If you would like to speak directly about this or other subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.] Evenings and weekends can often be accommodated.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. For those considering reporting an incident or problem, or filing a complaint, with Human Resources, thinking “a long way down the road” is especially important.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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