Labor: The view from the trenches

HR and employment lawyers must partner not just to win lawsuits, but also to prevent them.

Human resources professionals can add substantial value to their roles in many ways, one of which results from fully understanding how legal considerations and company practices are intertwined. Although HR professionals are not usually lawyers, they must work with lawyers to develop strategies for minimizing litigation risks.

One of the stickiest types of lawsuits is one in which an employee alleges that he complained about an unlawful practice of the company and then was punished (often discharged) as a result, in retaliation for having made the complaint. Retaliation cases are often more difficult than discrimination cases because they can implicate the subjective state of mind of the decision maker who adversely affected the employee. What can a human resources department do? Consider the following situation, which had a happy conclusion for the employer.

An employee alleged that he had not received a bonus because he was over 40 years old and that therefore the employer assumed his age would prevent him from leaving his current job notwithstanding the lack of bonus. In actuality, the reason the employee had not been given a bonus was that he was the head of a group that lost money during the year at issue. The employee filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that he was the victim of age discrimination. The EEOC charge was delivered to the human resources department, which sent it to outside counsel—and the two put their heads together to develop a strategy. They decided that they would respond to the EEOC charge as required but they would not tell the supervisor or anyone outside human resources and the legal department about the discrimination charge—at least, not yet. They knew it was possible the complaining employee would be fired because of his group’s lack of financial productivity, and if the decision maker was unaware when he decided to fire the employee that the employee had filed an EEOC charge, the employee would not be able to establish that retaliation for the EEOC charge was the reason for the discharge.

Sure enough, the employee was discharged because of the group’s financial performance, and the employee filed a second EEOC charge alleging that the reason he was fired was in retaliation for having filed a complaint with the EEOC. Before the EEOC—and later in federal court—the company succeeded in having the retaliation complaint dismissed because there simply was no evidence that the decision maker even knew about the employee’s complaint when he made the termination decision, and therefore retaliation for the complaint could not possibly have been the reason for the discharge.

And consider this one: An employee went to HR to complain about the way she was being treated—in discriminatory fashion, she said—by one of the supervisors in her department. The HR professional told the employee that an investigation would be conducted. The employee said she absolutely did not want any investigation, she had just wanted to vent to the HR department and wanted to make efforts to handle the situation herself. “Are you sure?,” the HR representative asked. “I am absolutely sure,” the employee said. The HR department then consulted with outside counsel about what to do—did the obligation to investigate a discrimination complaint outweigh the duty of confidentiality to employees? 

Looking at the law of the particular state in which the company was located, the lawyer advised the HR representative that an HR department had no obligation to conduct an investigation of a complaint such as the one the employee had made (which was about nonserious conduct) if the employee told human resources specifically that she did not want action to be taken. The lawyer advised the HR representative to write to the employee confirming that the employee had instructed the HR department that she did not want an investigation or corrective action, telling the employee to let HR know if that was not the employee’s instruction and informing the employee that she should return to HR at any time if the problem did not improve or if she wanted assistance of any type. The employee never returned to human resources.

The employee did, however, file a lawsuit a number of months later, alleging that she was the victim of discriminatory conduct and that she had complained to human resources but that HR took no investigative or remedial action. The memo written to the employee by the human resources representative saved the day. The employee’s lawsuit was dismissed because, under the applicable law, the HR department had no obligation to take any action where, as here, the employee had specifically instructed the HR representative not to do so. The HR representative’s memo to the employee permitted the company to prove that human resources was ready and willing to act for the employee and would have done so if the employee had not said, “Absolutely not!”

Human resources representatives and employment lawyers must always work as a team—not just to win lawsuits, but also to develop strategies to prevent them. The value that HR professionals provide to their companies by performing this role can spare the employer from paying large legal bills and also from the business diversion that results from spending many hours defending baseless legal claims.

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Barbara Roth

Barbara Roth is a partner at Hogan Lovells. She represents management exclusively in all types of employment litigation and advises clients on...

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