From the Blog with HCM Lecturer, Susan Alevas

The world of the human-capital management (HCM) leader is complex and dynamic and is often brimming with legal and ethical considerations.  Below is a highlight of some key points relating to the federal Fair Labor Standards Act (FSLA) from Columbia University School of Professional Studies M.S. in Human Capital Management Foundations of Labor and Employment Law class.  

This course leverages both synchronistic classroom-learning opportunities with asynchronistic online-discussion forums.  These online forums empower students to continue applying related legal and ethical principles and concepts to complex, real-world case-study scenarios that require additional reflective thought in order to transfer and apply that which they gleaned from their in-person classroom experience. 

As students begin to formulate mitigation strategies and longer-term organizational solutions in the context of real-world case studies, these online forums also serve to supplement student insights around:

• the intersection of a multitude of employment and labor laws and nuanced ethical dimensions that can be implicated in a single workplace-related case scenario and

• the preparation HCM leaders must undertake before embarking on discussions about potential legal matters with a variety of audiences, including organizational counsel, senior leaders, line managers, employees, union leaders and external-agency investigators.

Please keep in mind this blog is offered in an academic context and should not be relied upon as a substitute for specific advice from employer’s counsel about any situations occurring within a particular organization.

DUTY TO INVESTIGATE

Alleged Sexual Harassment

Organizations have a legal duty to investigate allegations of sexual harassment.  Take, for example, a case study covered in this course in which there is an allegation that an employee’s boss had asked him out socially.  

• Unless this type of social fraternization is prohibited under policy, while there is certainly an ethical concern when a supervisor asks out a subordinate employee, the mere asking for a date in and of itself likely does not rise to legally impermissible behavior (subject to a full inquiry, of course, to determine whether this was an isolated event or a part of a larger pattern and potentially creating a hostile-work environment).  
• Regarding anti-dating policies, it is important to note that, if challenged, these types of policies might run afoul of the employees’ right to privacy vis-à-vis their consensual relationships.  
• This is yet another example of the value of consulting organizational counsel if such a policy is being contemplated.

Alleged Retaliation

• In the context of the above example, what is also concerning is the allegation that when the date was turned down, the boss allegedly threatened the employee by saying he would “be sorry”.  
• While more information is needed to determine whether the asking out on a date was combined with an offer of some form of employment benefit (thus constituting quid-pro harassment), the fact that the boss is alleged to have threatened retaliation is of significant legal and ethical concern.  

Alleged Theft

• Separate and apart from the foregoing investigation that would be needed into potential sexual harassment, is a separate inquiry into the employee’s admission that he went into his boss’s desk without her permission.  
• For purposes of this inquiry, it is important to determine whether the subordinate employee is a member of a labor union.  If so, then for any conversation with HR that might lead to disciplinary action, the unionized employee has the right to have a union representative present during such a conversation (Weingarten rights).  
• Similarly, while unlikely the supervisor is a member of a union, in some organizations, such as public-sector entities, this is possible.  Thus, the same union-status determination would need to be made to determine how HR should proceed with conversations involving the supervisor.
• If the subordinate employee is not a union member, then HR may proceed with its discussions about the alleged rifling through the boss’s desk (in addition to inquiring more about the alleged sexual-harassment and retaliation allegations).  

Alleged Lax Safeguarding of Organizational Resources (Petty Cash)

• Again, in the context of the case study discussed in this course, as a part of this investigation, regardless of whether an actual theft occurred, it is also important to review the organization’s fiscal policies.  
• This policy review will help to determine whether the boss adhered to appropriate financial controls relating to the maintenance and safeguarding of petty-cash funds.  
• Depending upon what policies are in place, the boss may be subject to discipline for failing to safeguard such funds per organizational policy.

CONFIDENTIALITY

• While the subordinate employee did not previously file a complaint about the alleged sexual harassment, he cannot now call upon HR and/or others to maintain his confidentiality in this regard.  
• The organization has an affirmative legal duty of care under ordinary negligence standards (and related statutes) to investigate such claims promptly and fully.  
• Thus, the organization has a duty to maintain confidentiality to the extent permitted under law and/or policy meaning it cannot acquiesce to an employee’s request for “complete” confidentiality.

REASONABLE EXPECTATION OF PRIVACY

• In this case study, when it comes to the “search” of the manager’s desk, separate and apart from the question of whether the subordinate employee’s actions were appropriate (since he was personally motivated and not acting on behalf of the employer), the issue of privacy rights is raised.  
• Generally, courts have held that since the workspace (i.e., desk, office, lockers, computers, etc.) is the employer’s property, employees do not have a reasonable expectation of privacy in these workplace areas and when using employer-owned equipment.  
• When it comes to the use of an office that is exclusively assigned to one employee, under certain circumstances, this might give rise to that employee having a limited expectation of privacy.  
• Thus, it is important to review any related organizational policies to determine whether there are specific provisions that would impact an employee’s privacy rights as well as determine whether such “exclusive use” existed.    

WHAT EVIDENCE DO YOU HAVE; WHAT ADDITIONAL EVIDENCE IS AVAILABLE?

• Certainly, HCM leaders will want to assess the evidence they have (i.e., subordinate employee’s admission he went through his boss’s desk without permission).  
• Additionally, HCM leaders will want to identify potential additional evidence that might exist.
• If such additional potential evidence exists, HCM leaders will need to determine whether it would be pertinent to one or both of the two separate investigations (i.e., security-camera footage; witnesses, documentation, etc.).

CONDUCTING THE INQUIRIES/INVESTIGATIONS

• It is imperative for the individual(s) undertaking these types of workplace-related investigations to be appropriately skilled to do so.  
• Additionally, reviewing organizational policies and/or applicable collective-bargaining agreements (CBAs) to determine whether there are any procedures that must be followed is prudent.  
• For example, under organizational policy or CBA, is there already a designated person in place to conduct sexual-harassment complaints?
• Moreover, it will be important to determine what interim mitigation efforts are needed to protect the subordinate employee from the alleged retaliatory actions of the boss.  
• When determining what interim steps might be appropriate, it is important to remember that such steps cannot serve to in any way punish or harm the employee alleging sexual harassment and/or retaliation (i.e., forced transfer of the complainant).
• Finally, while obtaining a written complaint can be extremely helpful, even in the absence of a written complaint, there is an affirmative legal duty for an organization to investigate sexual-harassment and/or retaliation claims.  
• Even when written complaints are filed, it is incumbent upon the investigator(s) to assure that he/she/they understand fully the points contained in the written complaint since not every employee may be as skilled at preparing clearly articulated written documentation.
• Thus, the written complaint can form the basis for follow-up, clarifying questions by the investigator(s).  

CONCLUDING THE INQUIRIES/INVESTIGATIONS AND THE VALUE OF PROPER DOCUMENTATION 

• It should not be surprising that from both an ethical and legal perspective, the value of proper documentation cannot be overstated.  
• The investigative report(s) should include a clear summary of the nature of the investigation, the parties involved, etc. (weblink: https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/howtoconductaninvestigation.aspxe)  
• When an investigation is done properly and there is clear documentation of said investigation, both can go a long way in mitigating an organization’s potential legal exposure and liability.

ATTORNEY INVOLVEMENT

• When and how to involve organizational counsel will vary by organization.  
• In any event, it is important to have counsel, at a minimum, review organizational actions to assure these reasonably mitigate potential legal exposure and liability.  
• Also, in some circumstances, it may be appropriate to have an attorney conduct the inquiry (i.e., a complaint is leveled against a senior leader, for example).  
• Typically, the external counsel will not conduct such investigations because these attorneys will want to retain the ethical and legal ability to represent the organization in any subsequent litigation.  If external counsel conducted the investigation, they would be key witnesses in any subsequent litigation and, thus, could not also represent the organization as its counsel.  
• Therefore, organizational counsel will most likely work with the organization to identify another law firm that can be retained as special counsel for the purpose of conducting such investigations.  
• Alternatively, if there are in-house attorneys who would not normally represent the organization in litigation matters, these attorneys might be called upon to handle sensitive investigations.  
• This is more reason for HCM leaders to confer with counsel early on to identify the best path forward.

ETHICAL CONSIDERATIONS 

• Once again, these workplace issues present ethical as well as legal considerations.  
• This confluence affords HCM leaders with additional opportunities to contribute strategic business value by maintaining a focus on both types of considerations and boosting compliance and mitigating organizational legal and reputational risk.