By Lisa Nagele-Piazza, SHRM-SCP, J.D.
HR professionals are typically responsible both for supporting the executive team and for advocating on behalf of employees. So what should HR do when a senior manager oversteps legal boundaries and the ramifications of his or her behavior affect the entire workforce?
Inappropriate and unlawful behavior happens. A company leader may be involved in a sexual harassment scandal, engage in discriminatory conduct or even take part in criminal activities, such as fraud or embezzlement.
Figuring out how to respond to the situation can be a dilemma for HR professionals, said Mark Fogel, SHRM-SCP, chief executive officer and co-founder of Human Capital 3.0, an organizational leadership advisory firm. Should HR:
Act as defense and protect the executive?
Settle certain situations with money?
Take action against all wrongdoers?
What if the wrongdoer owns the company? What if the behavior is unethical but not illegal? «Doing the right thing» isn’t always easy or clear, Fogel said at the 2018 Society for Human Resource Management Employment Law & Legislative Conference on March 13 in Washington, D.C.
HR professionals need to weigh their options. They could expose the company and stand on moral and ethical high ground, but they may face losing their job and damaging their reputation. Despite government efforts to help regulate the private sector and prevent retaliation for whistle-blowers, you must carefully consider the possible outcomes, Fogel said.
Don’t Brave It Alone
At a minimum, HR professionals need to do what the law requires, Fogel noted. «If someone actually breaks the law, you have to bring it forward.»
It may help to discuss the situation with someone in the company and examine the possible strategies.
Who can HR turn to for partnership? Fogel suggested first consulting an immediate manager. If that’s not possible, consider talking to internal legal counsel or a member of the board of directors. Depending on the situation, it may also be appropriate to speak with a government agency.
«This is an uncomfortable conversation,» Fogel said, especially for those who have never talked to legal counsel or the board of directors. «Take into consideration that once you push the button, you have to be willing to follow up and have those conversations.»
[SHRM members-only how-to guide: How to Conduct an Investigation]
Additionally, HR professionals need to ensure workers feel empowered to come forward and report legal or ethical issues in the workplace.
Note that conversations might not be confidential. Follow-up investigations and interviews may need to be conducted.
Document Each Step
When wrongdoing is suspected, HR should investigate the situation and document the findings. «It’s hard to remember what you said yesterday at breakfast,» Fogel said, so document everything in real time. «If you document things a week later, you are more likely to fill in the gaps» with dialogue or actions that didn’t actually happen.
Not all documentation has to be shared, but it’s a good idea to keep track of the steps taken. Consider following up with a brief e-mail after phone or in-person conversations, too, he added.
Have a Uniform Public Message
Some company scandals are more public than others. «What do you say to the press if a camera is in your face and your CEO has just been arrested?» Fogel asked. «It’s not so easy.»
That’s why organizations should have a policy designating who can speak to the press. All employees should be aware of the policy and should know who is responsible for handling media requests. If HR is responsible for speaking to the media, Fogel suggests having one point of contact. The spokesperson should:
Hold media conversations at certain time intervals. It’s fine to say, «We are still looking into this matter and will get back to you when we have more information.»
Resist overstating the situation. Provide simple statements with just a few words or sentences. Answer the questions asked and don’t supply additional information.
Refrain from guessing, predicting or assuming. Stick to the known facts.
Recognize HR’s Hard Work
As sexual harassment accusations against politicians, celebrities and executives flood the news, many people have asked, «Where was HR?»
HR has gotten a raw deal in terms of the public response to sexual harassment claims, said Jonathan A. Segal, an attorney with Duane Morris in Philadelphia and New York City.
There may be cases where HR could have done more—and that needs to be evaluated—but it doesn’t make headlines when HR does things right, Segal said during a general session on March 13. When HR promptly investigates and helps resolve the situation, no one complains. And that’s a good thing.
It’s also important to remember that HR isn’t solely responsible for civility and compliance in the workplace. Leadership must own those issues, too.
«I see a lot of HR people struggling with the hardest issues and most doing a really good job,» Segal said.
https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/How-Should-HR-Respond-to-a-Scandal.aspx