One of the common questions that employees ask me is about “going on the record”. It’s tough. That’s what today’s reader question is all about.
I’m new to the HR world and wonder the proper protocol for an employee coming to you with a complaint, which they just want on record; however, does not want to move forward with it.
This employee has given his notice and will be leaving our employment in a month. He has been told, by co-workers, that another employee is bad mouthing him publicly and is saying he has ‘checked out’. He does not want me to talk to the employee who is being accused of the bad mouthing and just wants it on record if it does become a bigger issue. His main concern is that his ‘name’ is being dragged through the mud.
Am I required to let the accused employee state their side or can I keep note of it as “just wanting to express his concern”? Thank you, in advance, for any input you may give me.
To help us understand this matter, I asked our friend Kate Bischoff to share her knowledge. Kate is an employment attorney and HR consultant at tHRive Law & Consulting LLC. She’s shared her experience with us before on a somewhat related matter in “HR Failed to Investigate an Incident”.
Kate, let’s start by talking a little bit about HR and confidentiality. Lots of employees (at every level) think when they tell HR to keep it confidential that we’re requiredto respect their wishes. Is that true?
[Bischoff] Nope. There are specific circumstances where we need to keep things confidential, mostly health related, but often to do our jobs, we can’t keep things confidential. For example, we must keep medical information separate and secured and can’t share some items with others (including managers), but we can’t investigate harassment claims without talking to other people who may have witnessed the alleged conduct. We’d do a disservice if we didn’t investigate, and investigation means we have to talk about some things.
The law hasn’t been 100 percent clear on what HR has to keep things confidential. HR can’t ask employees to keep investigations confidential under the previous National Labor Relations Board (NLRB) rules (albeit we have a much more employer-friendly NLRB now) but the Equal Employment Opportunity Commission (EEOC) wants us to keep some things confidential so retaliation doesn’t happen. That said, HR has to be professional and get our jobs done without putting issues out in the employee gossip pool.
In this reader note, they talk about an employee bad mouthing another employee. Is that grounds for an investigation? Why or why not?
[Bischoff] It is certainly worth checking out. ‘Bad mouthing’ indicates a bad work environment. While it may not be a hostile work environment, there’s something people are unhappy about that HR should want to know about. HR doesn’t have to specifically call out the bad mouthing when talking with employees; but HR should go take this team’s temperature to see if there is anything going on. If the bad mouthing is happening, HR will find out when checking in with employees.
It’s not mentioned in the reader note, but since the employee is planning to leave the company, if they were to mention this during an exit interview, would the company be obligated to investigate? Why or why not?
[Bischoff] They’re not obligated under the law, but as I mentioned, it is certainly something I’d like to check out. This does not have to be a ‘formal’ investigation with an independent investigator or detailed investigation plan but chatting with the team should happen. Some sample questions should be asked such as:
- “How are things going?”
- “Are you concerned about TEAM MEMBER’s departure?”
- “Is there anything I can do to help the team?”
With these, HR will learn if there are concerns that should be escalated or if a manager can handle the morale issues that I suspect exist. More importantly, HR will learn if a more formal investigation is warranted.
One of the aspects in the note that stumps me is the mention of “a bigger issue”. It almost sounds like foreshadowing. When an employee says something like “just in case” or “because it may become a bigger issue”, could HR respond? Or would be just be adding drama?
[Bischoff] I agree sometimes HR can add to the drama, but HR has to go find out if there is a bigger issue here. The foreshadowing suggests this individual has a sneaking suspicion that a bigger issue already exists.
Let’s imagine for a second that this was foreshadowing (or the employee was trying to under-the-radar report harassment of some sort). If HR doesn’t at least go chat with some of the team and there is something going on, a plaintiff’s attorney is going to argue that HR knew as soon as the departing employee hinted that something was going on. This would start the clock on the ‘timely and appropriate action’ the employer is required to take under the law. While I don’t see a need to launch a formal investigation right away, by ignoring this, HR could really put the organization on the hook by starting the clock on liability.
Last question. Managers and HR are often told things that they shouldn’t keep confidential. What is the best way for HR or a manager tell an employee (after they’ve already shared confidential info) that they can’t keep it secret?
[Bischoff] You say, ‘Thank you so much for telling me this. I understand it can be hard to share these things. In order to make this better for you and others, I have to do something about it, including talking to others who may have seen or heard about it. So, while I’ll do my best to respect your privacy and be careful not to cause harm, I can’t keep this 100 percent confidential. Just know that if anyone treats you differently because you talked to me, we won’t tolerate it. We have a strict retaliation policy that I have no problems enforcing. Ok?’
And when you say it, you have to mean it.
Speaking of meaning it, I want to give a HUGE thanks to Kate for helping us with this issue. If you want to read more of Kate’s insights (and I know you do), be sure to check out her blog.
As human resources professionals, we often have to use our Spidey-sense when employees approach us with concerns. My big takeaway from Kate’s comments is when you get that feeling, it’s better to err on the side of caution. Ask some questions. Get some guidance. Just make sure there’s nothing brewing.
Image captured by Sharlyn Lauby while exploring the interwebs12