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Workplace Crime: Should I talk to human resources?

Posted in best practices, business, Employment by commorancy on August 10, 2018

fingerprintI’m being harassed by a manager, should I talk to human resources? Let’s explore.

Sexual Assault in the Workplace

I’ll lead with this one right up front as it’s front and center news and part of the #metoo movement. While this tends to be more common for females than males, both genders can experience this problem in the workplace. What should you do if you’re groped in the workplace in an inappropriate way? The first question you’re probably asking is, “Should I contact human resources?”

The answer is a resounding, NO. Do not contact the human resources team and try to complain there first. In fact, unless you’re a manager in the organization, you should entirely avoid complaining to human resources. Why? Let’s explore deeper.

Human Resources works for Management

This is an important concept to understand about corporate business. The HR team works for the management team, not the employees. Many people have a misconception that the HR team is an advocate group for the employee. This is entirely false. The HR team members, no matter how friendly they may appear, are not and will never be an employee advocate. Only you can be your own advocate (along with any attorney you hire). Your employer’s HR team looks out for #1, which is the business itself and the management team.

If the activity you experienced is sexual misconduct and resulted in bruises, marks or injury, then visit a hospital and take photos of the injuries first. Call 911 if necessary. If situation involves rape, then you’ll need to have the hospital perform a rape kit. When you are able and out of immediate danger, you should call the police and file a police report against the person describing what happened to you and by whom within the police report. Always ensure you are out of immediate danger before contacting anyone.

Next, find a lawyer who can represent you in this matter. If the lawyer finds merit in a lawsuit against the accused (or your company), it’s up to you to decide or not to proceed with the case. Of course, you’ll want to make sure you understand the consequences and the monetary costs of pressing such legal action, particularly against managers and particularly against high paid executives and your employer.

Once you have filed both a police report and you have a lawyer, only then should you involve the human resources team and give them whatever information that your lawyer deems appropriate to give them. Remember, only your lawyer is your advocate. The human resources team represents the company’s interests, not yours. Even then, you should only contact your company’s human resources team after discussing this strategy with your lawyer.

The human resources team’s responsibility is always to find reasons to discredit you and sweep the event under the rug. Once a police report is filed and you have a lawyer, the HR team can no longer play the protect-the-company game as easily because the police are now involved. The HR team is not law enforcement, but they always want to avoid lawsuits at all costs. They exist to make sure the company’s image remains clean and friendly. If it gets publicized that staff are being sexually assaulted in their workplace, their hiring efforts will cease. No one will want to work at a company that wilfully puts employees into harm’s way while on the job. No, it is in HR’s best interest to ensure an employee making an accusation is at best discredited and at worst terminated. HR may or may not terminate the accused depending on the position held within the company and depending on the accusation and against whom.

For example, if the person being accused of sexual misconduct is a manager, director, VP or C-level exec, it’s almost certain the accusing employee will be targeted for termination. The accused will likely remain at the company. As I said, it’s important to understand that the HR team’s obligation to the company is to protect the management team and the company against lawsuits and protect the company’s image that might interfere with hiring efforts. They also don’t have to play fair to do this… which is why termination may be a very real outcome for whistleblowing such activities within a company.

Targeted for Termination

While whistleblowers have protection when working in government jobs, no such protections exist for private corporations. If you whistleblow as an employee of a private corporation, the company is well within their rights to terminate your employment with or without cause. This is particularly true if your employment is considered AT-WILL. Of course, you can also sue the company for wrongful termination. The HR team is well aware of this position as well.

To avoid a wrongful termination lawsuit, the management team will likely sideline you into a position where you cannot succeed. This will then force you to perform badly and force management to put you onto a Performance Improvement Plan (PIP). Because you have no way to succeed on this PIP, you’ll fail at all of the success goals while on the PIP and, at the end of the improvement period, you will be ushered to the door. This is a common strategy to get rid of troublemakers and avoid wrongful termination lawsuits. Because they followed the PIP plan to the letter and have documented it at every step, this is the company’s insurance policy against wrongful termination lawsuits.

If you whistleblow and end up on a PIP, you’re being groomed for termination. You should take this as a huge red flag to move on. Put your resume out there the day you find out you have been put on a PIP. Don’t wait. Don’t assume things will work out.

Previous Employer Lawsuits

If you quit your offending employer and find a new job, you should keep any previous employer litigation information confidential. Do not disclose this to your new employer. First, it’s not their business. Second, if they find out you’re suing a previous employer, that could become contentious with your new company. They may feel threatened that you could take legal action against them. Don’t inform them of any pending legal action.

Don’t discuss it with co-workers. Don’t discuss it with your manager. Simply, don’t discuss it. Only discuss it with your lawyer. If you need to take off work for a legal meeting with your attorney or with the case, simply tell your employer that you have a personal matter that you need to discuss with your attorney and leave it at that. If they press you on the legal matter, just explain to them that due to pending litigation, you can’t discuss the case.

Termination and Lawsuits

If you’re terminated from the offending company, you may be asked to sign legal documents stating you won’t sue the company or that you’ll agree to arbitration. Simply ignore the documents and don’t sign them. The company cannot withhold your pay as extortion for signing those documents. If they try this, this is illegal and you can sue them for withholding your earned pay. A CEO can even be personally jailed for willfully withholding your pay even if it was someone else in the organization who made that decision. Your company must pay you the hours you worked regardless of what you sign going out the door.

Also, being terminated doesn’t absolve the company from any legal wrongdoing. If you have a pending lawsuit against the company, being terminated doesn’t change the status of that pending lawsuit. You are still free to pursue any lawsuits you have open. In fact, being able to document termination in a retaliatory way may even strengthen your lawsuit.

If you signed an arbitration agreement as part of your hiring package with the company (which you should never do), then you’ll have to discuss this situation with your lawyer to find your best avenue for litigation.

Guilt, Lawsuits and your Career

If you witness or you become a part of an illegal activity in the workplace (i.e., sexual misconduct), it is on you to determine how you want to handle it. You can do nothing and let it drop or you can take it to the police. It’s your choice. Too many companies get away with far too much. If you witness or experience anything illegal while on the job, you should report it to the police and consider a lawsuit only on your attorney’s advice.

As I said above, if you attempt to go to HR first and ask them to address your concern,  you will likely find you are being accused, sidelined and treated as the criminal, not the person who performed the misconduct. Why?

The HR team and its management is hired by the CEO and executive team. The HR manager likely reports directly to the CEO or the CFO. As a result, they take marching orders from their boss. If an employee makes an allegation against a manager or above, the CEO will want to quash this as quickly and as quietly as possible without investigation. To do this, the HR team will state they are investigating, but instead they will begin watching you, the employee who made the report closely. Even the tiniest slip or mistake will be blown way out of proportion and, you, the accuser be reprimanded. This may lead to a PIP as described above or possible immediate termination.

Basically, if you reach out to the HR team for help, you may find that it is you who are now the target against the ire of the company. Unfortunately, once the executive team paints a target on the back of an employee, it’s only a matter of time before the accuser is gone.

Throw Away Employees

Unfortunately, corporate business is cutthroat about making money and ensuring that that outcome continues. CEOs and the executive team will stop at nothing to make sure business continues as usual. The executive team is not your friend at any company. They are your boss. As a boss, they will do whatever it takes to make sure their business succeeds, regardless of what that means to you.

The only employee in any organization considered important enough to keep on the payroll is the CEO. All else are expendable… and this is especially true of troublemakers. By making an accusation of sexual misconduct against anyone, you may be labeled a troublemaker in your personnel file. If your position is easily replaced, you’ll soon be gone and they’ll fill it with someone else.

For this reason, if you’re alleging sexual misconduct, you have to make sure to legally document everything including physical evidence of it. The only way to do that is contact the police. Then, hire a lawyer. Only a person whom you are paying can help you to bring justice. The HR team has no incentive to bring justice on your behalf as they are not paid by you. The HR team has every incentive to ignore you and maintain status-quo because they are paid by and take orders from management.

Illegal Activities

Such activities are not limited to sexual misconduct. It also includes embezzlement, money laundering, insider trading, cooking the books, theft, vandalism and any other willful act by an officer of the company. If you witness any of these, you should still file a police report and then talk to a lawyer.

Skip talking to the HR team as they will only cast suspicion on you, try to turn it around on you and/or target you for termination. It is their job to kill these problems as quickly and as quietly as possible using any means necessary. Being able to get rid of problems quietly is the difference between a good and a great HR team. Don’t ever think the HR team is on your side as an employee.

HR Perks and Employee Happiness

This goes hand in hand with all of the above. Unless you’re on the management team, the HR team is not your advocate. Yes, HR is there to keep the employees happy, but only on their terms. When a non-management employee brings a problem to the attention of HR, watch your back. This means, never disclose your internal company problems to an HR team member. Sure, you can be friendly and sociable and polite, but always keep the HR team at arm’s length when discussing personal or job related matters. This also means you need to know whom is married to whom in your organization. You don’t want to vent a bunch of personal issues to a co-worker only to find out they are married to the  HR manager or an HR employee at your company. Word gets around fast in HR.

As an example, if your company offers company paid counseling as a perk, you should avoid using it. Instead, you should find your own personal counselor and pay them for those services yourself. If you disclose anything to a company paid counselor which could be misconstrued as a problem for the company, the HR team may be able to obtain this information outside of any doctor-patient privilege. Because of this, this could give the HR team ammo to terminate your employment. Always be very, very cautious when using such company sponsored counseling services. When the company is paying the bill, they may have made legal arrangements to obtain information that an employee might disclose.

This information can also be kept in your employment file and potentially used against you should the need arise. Careful what you say, particularly to company paid counseling services and to random folks around the office. Because the walls have ears, even discussing this kind of stuff during lunchtime in the break room could be overheard by someone on the HR team. It’s simpler not to discuss issues of sexual misconduct at all when on your company’s property.

Cell Phones and Employment

If your company supplies you with a cell phone for business purposes, never use it for personal reasons or to discuss personal matters. Because the company owns the equipment, they can install whatever they want on the device and potentially record and listen to your conversations. Only ever discuss these kinds of matters on a phone you own and fully control.

Because many employers now allow using your own phone device for work purposes, never relinquish your phone to the IT team or install company apps or mail on your phone. For example, installing an Exchange mail connector in Apple’s Mail app on iOS allows your company to not only set up restrictions on your phone device, preventing you from using certain functions or installing certain apps, they can also modify the device to their own will… up to and including wiping your phone entirely of data. Yes, installation of the Exchange connector to a corporate Exchange mail server hands over this level of control of your device to your employer!

Never install a company Exchange connector on Apple’s Mail app. Instead, install the Outlook app and only use it. The Outlook app does not have this level of permission to control your phone that Apple’s Mail app has and, thus, cannot modify your phone or put your phone at risk of being wiped. Better, don’t use your personal phone for company business. Request the company provide you with a phone if they need that level of control over the phone device. If they refuse the request, that’s their problem. The employer can call you and text you on your device, but that’s as far as you should let them go with your personal phone. If they provide you with a company phone, then they can set it up however they wish.

Managers and HR versus Employee

Yes, the management team and HR will gang up on you. As an employee, the HR team always takes the word of a manager over the word of the employee. This is fact. There is no such thing as justice or equality in corporate business. The HR team represents the management team without question. If, for example, you accuse a manager of sexual misconduct and that manager tells HR that the accuser made it all up, that’s where the accusation ends. Worse, the manager can then retaliate against you through the HR team’s blessing. There will be no further investigation nor will your accusation receive any further review. However, your work efforts might find undue scrutiny, micromanagement and manager meddling. If you press the point, the HR team will likely begin the sidelining and termination process at the manager’s request.

Even if the HR team requests such complaints come forward, never assume that submitting your complaint to the HR team will result in any satisfactory outcome for you. It won’t. Instead, you will need to rely on the legal system to work for you. This is the reason you should make a police report as soon after the incident as possible, preferably the same day. Visit a hospital if you are injured so they can medically help you and document your injuries. Then, find a lawyer who specializes in whatever you witnessed or experienced and talk to them about your case. If you have been assaulted or raped in the workplace, you should visit the RAINN web site or call RAINN at 1-800.656.HOPE to find out what to do next.

If you choose to try to reach out to the HR team and find that it all backfires on you, you can’t say you haven’t been warned.

Disclaimer: None of this article is intended to be construed as legal advice. If you have legal questions, you should contact an attorney near you who specializes in the crimes you have witnessed or experienced. If you are a victim of sexual assault and/or rape in the workplace, visit RAINN to find out what to do.

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