HR in the Middle Ethics in HR Management

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Ethics in Human Resources Management What happens when HR sues the company?

HR in the Middle:Ethics in HR Management

John J. Sarno, Esq.Employers Association of NJwww.eanj.org

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Ethical Dilemmas

Managers owe a duty of loyalty to the employer to carry out its policies faithfully and to advance the employers interest.2

SHRM Code of EthicsHR should assure fair and equitable treatment of all employees while maintaining loyal to the employer.3

HR must adhere to the highest standards of ethical behavior and comply with the law4

HR must safeguard restricted and confidential information and maintain a high level of trust and avoid conflicts of interest. 5

Title VII and NJLAD Anti-RetaliationEmployer cannot discriminate or retaliate against an employee because the employee

Opposes a discriminatory practice, orParticipates in a formal EEOC investigation, proceeding or hearing6

Weiler v. R&T Mechanical3rd Circuit, 2007Law protects supervisor (and any employee) who reports harassment, even if they are not the target. 7

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 employers internal investigation. 8

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

OR

Are you participating when conducting an investigation?9

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.10

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. 11

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. 12

The Whistleblower CaseWhistleblowing activity, i.e.: disclosure or objection, or refusalReasonable belief that employer violated a law, rule, regulation, was fraudulent or criminal, or violated a clear mandate of public policy,Adverse employment actionCausation

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Employees Reasonable BeliefEmployee should have some objective rationale for her belief that employers 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.14

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.15

White v. StarbucksArgued before Appellate Division on January 26,2011Appellate Division decision on December 9, 2011N.J. Supreme Court denies certification on April 9, 201216

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)?17

White v. StarbucksKari 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. 18

Complaints from store managersInterpersonal conflictLack of focusFailure to prioritizeInappropriate and profane languageBullying 19

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, 200720

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! 21

Whistleblowing InvolvesA rule, law or regulationFraud, deception or crimePublic health, safety and welfare22

Whites Disclosures:Employee theft Handicap accessibilityPoor Refrigeration 23

Whites CEPA suit was dismissed by the trial court and was appealed. Appellate court affirms trial courts dismissal. 24

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 supervisors employment ended.25

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.26

Lippman v. Ethicon(N.J. App. Div. 2013)Watchdog employees can be whistleblowers when performing in the course of their job duties27

Watchdog employee is an employee, by virtue of doing their job is in the best position to:Know the relevant standard of care, andKnow when the employer is violating that standard of care28

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. 29

Lippman is fired for secretly dating a subordinate but court finds he can allege termination for alerting company of drug safety problems. 30

Oral Argument TBA31

www.eanj.org/content/eanj-courts

Quinlan v. Curtiss-Wright Corp.The FactsEmployed 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 200332

Did Quinlan Engage in Protected Activity?

N.J. Law Against DiscriminationObjectionsRefusalsDisclosuresResistingProviding InformationPursuing a Claim

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Court Adopts Flexible Totality of the Circumstances TestFactors: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 34

Court finds that violating confidentiality policy could be protected activityEmployee 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 activity

Factors: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?

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