Human Resources is Not on Your Side

Human Resources departments have their origins back in the early 20th century, where these departments were implemented to focus on hiring and administering compensation practices. Human capital became an asset of the employer; workers were treated as commodities. The labor movement in the United States grew out of the government’s need to protect the interests of workers in the areas of working conditions and wages The government’s response includes the establishment of the United States Department of Labor (DOL) in 1913. The Fair Labor Standards Act (FLSA) was enacted in 1938. The FLSA created the DOL’s Wage and Hour Division which is responsible for the administration and enforcement of a wide range of labor laws, including minimum wage and overtime wages. Labor unions were formed to protect workers' rights and advance their interests. The purposes of a Human Resources department and a labor union are decidedly different. Labor unions safeguard the interests of the employees.

The Human Resources department looks out for the employer’s best interest. Human Resources departments largely focus on personnel management, administration of benefits, and compliance with laws such as the Family and Medical Leave Act (FMLA), among other legal requirements. The Human Resources department is generally charged with fielding employees’ complaints. Some employee complaints are protected; others are not. Protected complaints (also termed, “protected activity”) includes, but is not limited to, an employee’s reporting of discrimination or harassment based on a protected trait (age, sex, race, disability, national origin, gender), an employee’s report about work-related safety violations, inquiries into the employer’s failure to pay overtime wages, and other violations of wage and hour laws. General gripes about the employer’s management team, management style, and quality of benefits, for example, are not protected and could result in termination. Human Resources departments have undergone changes in recent years. Many employers have “rebranded” their Human Resources departments to make them sound and feel more “employee-friendly.” “People Operations,” “Human Capital Management,” “Employee Engagement Department,” “People Relations,” and “Employee Experience Department” are all clever monikers designed to put employees at ease. Many employees consider their employer’s Human Resources department to be their advocate. Regardless of how an employer brands its Human Resources department, the reality is, that for many employees, the Human Resources department just doesn’t care about them. The Human Resources department isn’t necessarily an enemy, but it isn’t an advocate either. It might be best to view Human Resource department employees as “frenemies.”

When an employee makes a protected complaint, a problem may arise when the complaint concerns another employee who is more valuable than the complaining employee. Many times, lower-level employees are more susceptible to harassment than higher-earning employees. For example, the New Jersey Law Journal recently reported on a sexual harassment lawsuit filed against a large law firm where a partner in the firm sexually harassed a legal assistant. The legal assistant’s complaints were not taken seriously. In fact, the legal assistant was fired shortly after making her complaints to the firm’s Human Resources department. There is no doubt that the partner was a valuable asset, as he generated substantial income for the law firm. On the other hand, the legal assistant could be easily replaced. Because of that, the partner was not disciplined, reprimanded, or even approached about the legal assistant’s sexual harassment complaints. The aforementioned scenario is common across many industries. As many employees have learned, retaliation for making protected complaints is very real.

Even if you believe that the Human Resources department will not help you with your claims, you still need to file a complaint with them. The law provides employers with an affirmative defense to avoid liability. The affirmative defense is not automatic. An employer must demonstrate that it's exercised reasonable care to prevent and correct promptly any harassing behavior and that the employee unreasonably failed to take advantage of the employer’s preventive or corrective measures. The affirmative defense is not available if the employer fails to provide meaningful and effective harassment policies and procedures for employees to use in response to harassment. That is why it is always important to complain about discrimination and harassment in the workplace. Employees should follow their employers’ procedures for filing a complaint. An employee should always make sure to document the complaint that is being made.

If you have experienced discrimination or retaliation in the workplace, contact The Law Firm of Morgan Rooks, P.C. We can be reached via our online form or by dialing (856) 746-6332.

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