hr in the middle ethics in hr management

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HR in the Middle:Ethics in HR Management

John J. Sarno, Esq.Employers Association of NJ

www.eanj.org

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Ethical Dilemmas

Managers owe a duty of loyalty to the employer to

1) carry out its policies faithfully and 2) to advance the employer’s interest.

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SHRM Code of EthicsHR should assure “fair and equitable treatment of all employees” while maintaining loyal to the employer.”

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HR must “adhere to the highest standards of ethical behavior” and “comply with the law”

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HR must “safeguard restricted and confidential information” and “maintain a high level of trust” and avoid conflicts of interest.

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Title VII and NJLAD Anti-Retaliation

Employer cannot discriminate or retaliate against an employee because the employee

Opposes a discriminatory practice, or Participates in a formal EEOC

investigation, proceeding or hearing

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Weiler v. R&T Mechanical3rd Circuit, 2007

Law protects supervisor (and any employee) who reports harassment, even if they are not the target.

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Crawford v. City Of NashvilleU.S. Supreme Court (2009)

Title VII protects an employee who answers questions and reveals additional harassment (“me too”) during an employer’s internal investigation.

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Ethical Issues for HRIs your report to management a form of “opposing” discrimination/harassment?

OR

Are you “participating” when conducting an investigation?

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Brush v. Sears Holding Co.(11th Cir. 2013)

Brush, an HR manager conducted an investigation into sex harassment. During the interview, the victim claimed that she was raped by her manager but did not want to report it to police. The manager was fired but Brush pushed to have management report the rape. Thereafter she was fired.

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“A management employee that in the course of her normal job performance, disagrees with or opposes the actions of her employer does not engage in ‘protected activity’”

Disagreement with internal procedures is not opposing discriminatory practices.

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Grey-Allen v. Benjamin Enterprises, Inc.(2nd Cir. 2012)

Participation in an internal investigation unrelated to a formal EEOC charge is not protected activity.

Participation in an investigation after the filing of a formal EEOC charge may be different.

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The “Whistleblower” Case Whistleblowing activity, i.e.: disclosure or

objection, or refusal Reasonable belief that employer violated

a law, rule, regulation, was fraudulent or criminal, or violated a “clear mandate of public policy”,

Adverse employment action Causation

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Employee’s “Reasonable Belief”

Employee should have some objective rationale for her belief that employer’s conduct violates law, is fraudulent or is incompatible with a clear mandate of public policy. Generally, an employee should be able to articulate a law, regulation or code.

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“Retaliatory Action” means the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in terms and conditions of employment.

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White v. Starbucks Argued before Appellate Division on

January 26,2011 Appellate Division decision on

December 9, 2011 N.J. Supreme Court denies certification

on April 9, 2012

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Is an employee who reports or discloses a violation of health or safety code that is part of their job to report and/or correct engaging in protected whistlblower activity under the N.J. Conscientious Employee Protection Act (CEPA)?

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White v. Starbucks Kari White was hired in July, 2006 as a

District Manager at Starbucks. Several weeks of training in food safety,

store cleanliness and theft prevention. 6 store managers reported to her. Primary functions are monitoring store

conditions, ensuring customer satisfaction and product quality.

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Complaints from store managers Interpersonal conflict Lack of focus Failure to prioritize Inappropriate and profane language Bullying

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White reports stolen merchandise, lack of handicap accessibility at some stores and poor refrigeration

White does not improve her interpersonal skills and organizational failures

Termination in March, 2007

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White files wrongful termination suit alleging violations of CEPA when Starbucks fired her in retaliation for reporting stolen merchandise, lack of handicap accessibility and poor refrigeration!

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Whistleblowing Involves1) A rule, law or regulation2) Fraud, deception or crime3) Public health, safety and welfare

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White’s Disclosures:Employee theft Handicap accessibilityPoor Refrigeration

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White’s CEPA suit was dismissed by the trial court and was appealed. Appellate court affirms trial court’s dismissal.

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Massarano v. N.J. Transit(NJ App. Div. 2008)

Security supervisor reported that schematics and blueprints for tunnels, bridges and gas lines had been left in recycling bins on a loading dock.

Five months later supervisor’s employment ended.

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Trial Court Dismissed CEPA Suit and Appellate Court Affirmed:

Security officer was not a whistleblower when she reported security violations. She “was merely doing her job” as a security officer when she reported the violations.

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Lippman v. Ethicon(N.J. App. Div. 2013)

“Watchdog” employees can be whistleblowers when performing in the course of their job duties

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“Watchdog” employee is an employee, by virtue of doing their job is in the best position to:

1) Know the relevant standard of care, and

2) Know when the employer is violating that standard of care

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Lippman, a doctor, is in charge of product safety, and gives opinions and recommendations and often challenges the marketing department. Meetings became heated as Lippman seeks to delay drug launches on safety grounds. Some recommendations are followed, some are rejected.

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Lippman is fired for secretly dating a subordinate but court finds he can allege termination for alerting company of drug safety problems.

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Oral Argument TBA

www.eanj.org/content/eanj-courts

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Quinlan v. Curtiss-Wright Corp.

The Facts Employed since 1980 as benefits analyst,

promoted to executive director of HR in 1999.

Signs confidentiality agreement In 2000 Ken Lewis is hired in HR and

promoted to corporate director of HR in 2003

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Did Quinlan Engage in “Protected Activity?” N.J. Law Against Discrimination

ObjectionsRefusalsDisclosuresResistingProviding InformationPursuing a Claim

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Court Adopts “Flexible Totality of the Circumstances” Test

Factors: Relevance to case Company policy Purpose of copying and disclosure To whom? Would documents be destroyed? Could documents be obtained in another way? Whether documents were available in ordinary

course of business

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Court finds that violating confidentiality policy could be “protected activity”

Employee could be fired

Could be retaliation

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What Does This Mean: Employees can be fired for disloyalty

Some acts at disloyalty are protected activityFactors:MotivationHow disruptiveDoes employee have a belief that the law is being violated?

But: Extremely high-risk if protected activity

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Thank You

Questions?