Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Thursday, March 31, 2011

I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?

            I know it seems scary to report sexual, racial, or other harassment to human resources. It’s even scarier when they call and tell you they’ve set up a meeting with their lawyer and you. Some employees want to refuse or delay this meeting. But being called into a meeting like this is actually a good sign. It means your employer is doing what they’re supposed to do. (Either that, or you’re being set up to be fired, but let’s stay optimistic).

            The Supreme Court says you must report discriminatory harassment under the company’s published harassment policy and give the company a chance to fix the situation. No excuses accepted, no exceptions made. (In Supreme-land, nobody is ever justifiably afraid of being beaten to a pulp, fired, demoted, or made miserable if they complain).Yeah, yeah, I know. But it's not my rule. You still have to do it.

Once the employer receives a report of discrimination or discriminatory harassment, they are supposed to conduct a reasonable investigation. If the discrimination or harassment has occurred, they must take prompt action to correct the situation. Plus, they’re now on notice that someone in their company has a propensity toward illegal behavior.

            With a little preparation and a little backbone, this meeting may be just what you need to make your work life peaceful again. Here are some do’s and don’ts for that meeting.

  • Put your complaint in writing if you haven’t already. Make sure you call it a “Formal Complaint of Racial [or Sexual/Age-Based/National Origin, etc.] Harassment [or Discrimination].” That way they can't claim later you only reported general harassment or bullying.
  • Make notes to take with you. Write down everything that was said or done where you were singled out for harassment or different treatment due to your race, age, sex, national origin, pregnancy, color, genetic information, religion or other protected status.
  •  If any comments were made about your protected status, write those down too.
  • Were you denied a raise, paid less, denied a promotion, or disciplined when others in a different category (different race, different sex, younger, non-disabled, etc.) were treated better? Write it down.
  • Try to recall dates, who made the statement or singled you out, witnesses, and as much detail as you can provide. If you don’t recall an exact date, it’s okay to write down “around May” or “last Spring.” Do the best you can. Write it all down so you remember.
  • Write down names of everyone in your same category (same race, same sex, etc.) who was also treated badly.
  • Write down names of everyone in a different category from you who was treated better.
  • If you have written proof – emails, memos, photos, recordings (not illegal tape recordings of conversations though), or other documents, gather them to bring to the meeting. Be organized. You’ll be more believable and you’ll look professional.
  •  Take good notes of the questions asked and the answers you gave.
  • If you have an attorney already, let them know about the meeting. While they may not be allowed to attend, they might ask if they can. At the very least, they might give you some tips on what to say and what to expect. They may have their own do’s and don’ts they want to go over with you. If you're represented, the company attorney can't meet with you without your lawyer's permission.
  •  If you’re a member of a union, tell your union representative. They’ll probably want to be with you.
  •  Stick to your guns. If they try to get you to change your story, say it wasn’t due to race/age/sex, etc. but something else, don’t cave.
  • Ask if you can see the investigative report once it’s complete.
  • If you remember something after the meeting, think you didn’t have an opportunity to present everything, or want to clarify something, do write a memorandum to the people who attended the meeting laying out the details you want to add, so you have proof.


  • Don’t tell your coworkers about your complaint or start bad-mouthing anyone. Your complaint is supposed to be confidential. The employer might discipline or fire you for violating confidentiality.
  • Don’t talk about unfair treatment, general harassment, personality conflicts or bullying. Those aren’t illegal. Make sure to focus on your complaint.
  • Don’t use illegal recordings. If you recorded a conversation with your harasser and the harasser didn’t know about it, in some states you may have committed a crime.
  • Don’t insist on having an attorney present, to the extent you refuse to attend the meeting. Most companies won’t allow you to bring an attorney with you to an internal investigation. If you refuse to cooperate, they’ll have a nice defense to your claim and they might say you were insubordinate.
  • Don’t concede that the reason the person you’re complaining about did something is they dislike everyone. If you are asked why the discriminating person did something to you, the answer is almost always, “Because of my race/age/sex, etc.” or “To retaliate against me for reporting discrimination.” If you say it’s because they’re a bully, you’re giving the legal department ammunition to say the person is an “equal opportunity harasser” who is mean to everyone.
  • Don’t be evasive or try to play word games. You’ll look like a liar.
  • Don’t ask for severance. They’ll claim you quit. If they ask what you want, say you want to work in a place that is free of discrimination/sexual harassment/racial harassment, etc. Don’t quit. If they fire you, contact a lawyer.
  • Don’t demand the harasser be fired. They don’t have to discipline this person in any particular way. Don’t put yourself in a situation where you make them say that they have nowhere to put you in light of your demands.
  •  Don’t yell, be insubordinate, be rude, or act unprofessionally. You’ll just give them a legitimate reason to fire you.
  • Don’t refuse to come back to work. You have to work, or they’ll say you abandoned your position.
  • Don’t forget that HR and the corporate attorney are there to protect your employer, not you. You shouldn’t say or do that could get you disciplined or fired.
  • Don’t give the company your only copy of anything. Make sure you have copies of your notes, evidence, witness lists, etc.
  • Don’t freak out when they start interviewing coworkers. They’re supposed to do that. They have to investigate what you’re saying. That means the harasser will probably find out about your complaint.
  • Don’t get upset if they say they won’t give you a copy of the investigative report or let you know their conclusions. Some employers will, some won’t. If you end up having to sue, EEOC and your lawyer will be able to get the report.
  • Don’t be surprised if they say they conclude there was no discrimination or illegal harassment. Very few HR people or lawyers will admit anything in writing. Even if the official report says it didn’t happen, the harasser might have been warned or disciplined in some way.
Once the interview is done, you need to be patient. If you encounter more discrimination/discriminatory harassment, or if you are retaliated against for complaining, report it in writing to HR.

Most employers take discrimination complaints seriously and try to do the right thing. If you go into your meeting prepared, have your proof and witness lists organized, act professionally, and don’t have unreasonable expectations, this is your best opportunity to get the company to assure you have a workplace free of discrimination and discriminatory harassment.

If your employer doesn’t correct the situation and it continues, or if you are retaliated against by a demotion, termination, cut in pay/hours, or something that affects you in the wallet, it’s time to talk to an employment attorney in your state. The work you did to prepare for your meeting won't have been wasted. You'll be ready for your meeting with the lawyer. Hopefully you'll have enough ammunition to convince the attorney that they can sue your employer's socks off.

Wednesday, March 23, 2011

Supremes Pretty Consistently Oppose Retaliation

The Supreme Court isn’t exactly known for being pro-employee. But it has been fairly consistently pro-employee in one area: retaliation. Yesterday’s ruling in favor of an employee who complained verbally about a Fair Labor Standards Act (FLSA) violation is just one of a series of recent rulings that demonstrate employers need to beware of retaliating.
Oral complaints are protected: In yesterday’s Kasten v. Saint-Gobain Performance Plastics Corp, the Court found that the anti-retaliation provision of FLSA which applies to people who “file” complaints applies even where the “filing” was purely a verbal complaint.

Retaliation against a fiancé is illegal: Earlier this year, in Thompson v. North American Stainless, LP, the Court ruled that the fiancé of an employee who complained about sex discrimination could bring a retaliation claim when he was fired shortly after she complained. It’s, “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Yeah. It was pretty obvious, wasn’t it?

You don’t have to be the one who complained to be protected: In 2009, in Crawford v. Metropolitan Government of Nashville, the Court decided an employee who was interviewed in a sexual harassment investigation was protected: “The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” Gotta love this one since she won a $1.5 million verdict last year after the case went to trial. Oh, and because the majority opinion referred to the employer’s position as “freakish.” Well, not quite their whole position, but the word “freakish” was used.

Race discrimination statute prohibits retaliation: In 2008, the Court in CBOCS West, Inc. v. Humphries found that 42 U.S.C. § 1981(a post-Civil War race discrimination statute) prohibits retaliation.

Age discrimination statute prohibits retaliation: The same day in 2008, the Court in Gomez-Perez v. Potter, Postmaster General found that the Age Discrimination in Employment Act similarly prohibited retaliation against a federal employee.

Retaliation other than termination is illegal: In 2006, the court decided Burlington Northern v. White said: “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

So while some other employment laws may be slowly eroding away in favor of employers, the anti-retaliation laws are alive and well. Does this mean employees can run to the courthouse at will now? No. Employees still need to be concerned about retaliation. You need to know your rights before you complain.

Donna’s tips:

a. There is still no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. That means objecting to something that’s illegal under a statute such as Family and Medical Leave Act, Title VII, state discrimination laws, wage/hour laws, OSHA violations, or some other legal violation.

b. If you’re thinking about bringing a claim under a whistleblower law, there are lots of hoops you have to jump through, so know your responsibilities and rights under the whistleblower laws before you complain.

c. I did a post about when you should think about reporting coworkers and how to do it. Despite yesterday’s ruling about oral complaints being protected, I still suggest you put your complaint (if it’s a legally-protected complaint) in writing so the employer can’t deny it later.

d. General harassment, hostile environment and bullying are not illegal, so you’re not protected from retaliation if you report them.

Saturday, March 12, 2011

Who Owns My Social Media Contacts and Posts?

Most employees think their social media is none of their employer’s business. So, who owns your social media contacts and posts? While you may think you own your contacts and posts online, the answer may depend on what agreements you’ve signed with your employer.

When you leave, it is possible for your former employer to make a claim to some or all of your social media contacts or posts.

My guest post on Monster.com tells what you need to know about who owns your social media when you leave your job.

Thanks to my friends over at MonsterThinking for continuing to ask me to post. It's such an honor to be asked to guest blog for the nation's best job hunting site (and the one I use when I need to hire employees).

Wednesday, March 2, 2011

Guest Blog Post on Social Media and Employment Law: Six Things You Need to Know

Whether you’re an occasional Facebooker, a Twitter fanatic, or a well-known blogger, you need to understand the risks you face every time you post or click at work and at home. If you think what you post is private, or that you can click without consequences, think again. If you make a mistake with your social media, it can cost you your job. I did a guest blog post this week on MonsterThinking (Monster.com's excellent blog on employment and career issues) where I talk about six things you need to know about social media and employment law before you post or click.

Check it out here.

I've added MonsterThinking.com to my blogroll too. It's an excellent source of information for employees on the latest issues affecting you at work. Keep checking it out - I know I will.