People managers do more than manage people. They also play a critical role in managing legal risk.
With many employment claims, the core problem is that the manager did not report to HR an issue that HR should be handling. Instead, he or she either ignored the issue or dealt with it alone. Here are two real-life examples that resulted in claims:
A manager did nothing in response to a complaint of sexual harassment, including failing to report it to HR, because the employee implored her to keep the complaint confidential.
A manager determined that an accommodation request was unreasonable without involving HR to engage in the required interactive dialogue.
We cannot expect managers to intuit when they need to consult with HR. To the contrary, we need to educate them on what issues they are required to bring to HR’s attention.
Reporting to HR: When and How?
The first step is figuring out what occurrences managers should report to HR. This is not as simple as it may seem.
Virtually every management action or inaction can have legal implications. It is neither practical nor desirable for HR to be involved in every aspect of people management.
In communicating to managers what issues should be reported, HR needs to be careful not to demean the manager and subsequently damage the partnership. The message should not be that HR doesn’t trust the manager but rather that HR has greater subject matter expertise in and practical experience with certain issues, and that that expertise should be leveraged for the benefit of all.
HR also needs to provide guidance as to what managers should say or do in the moment before contacting HR. Even if an issue ultimately should be handled by HR, managers ordinarily must respond in some way when the issue is first brought to their attention.
For example, what should a manager say in response to an employee who discloses that she is pregnant? If HR provides no guidance, the manager may say “not again”—or worse.
Further, managers need to know how to make the report (e.g., by phone, e-mail or voice mail) and how much detail to provide.
A phone call is ideal. But a simple e-mail is fine, too. Advise managers to say something like “I need to discuss a safety complaint with you ASAP.” This conveys the manager’s sense of urgency without including unnecessary editorial comments.
Responding in the Moment
How should people managers respond in the moment to an employee claim of sex discrimination? Consider the following possibilities.
Suppose an employee tells a manager that Mark made a sexist comment. The manager responds, “That does not sound like Mark.” It may not sound like the Mark the manager knows, but the response is dismissive of the employee’s concern.
Not much better is the opposite: “That sounds like something Mark would say.” That may be how the manager feels, but it is dismissive of Mark’s right to defend himself.
How about “That’s unacceptable, if true”? That comment may come across as though the manager is suggesting that the employee is lying.
When managers receive a complaint, they should not focus on how they feel about the allegation; instead, they should concentrate on the process. To that end, consider recommending the following steps to people managers:
First, thank the employee for raising the concern. This sends a message that the employee did the right thing by bringing the issue to your attention and may allay any concerns the employee has about retaliation.
Second, let the employee know you will take the concern seriously. Saying this to the employee is different from suggesting any judgment on the merits of the concern raised.
Third, let the employee know you are going to consult with HR. Saying “consult” rather than “report” may provoke less anxiety for the employee. But no matter what word you use, be sure to contact HR. —J.A.S.
Consider the following five examples of incidents managers should be required to report to HR:
- An allegation of discrimination, harassment, retaliation or other unlawful conduct.
- A request for a leave of absence for medical, family, military or any other reason.
- An accommodation request for a physical or emotional condition; a religious belief, practice or observance; pregnancy; or any other reason.
- An allegation that an employee was not properly paid or that his or her pay was subject to an improper deduction.
- A refusal by an employee to perform a task because he or she believes it is unlawful, unethical or unsafe.
It’s important to make clear to managers that the employee does not need to use legal buzzwords for there to be a duty to report. If an employee says, “I think Sarah has been tougher on me since I expressed concerns about my pay,” that’s enough to raise a duty to report potential retaliation.
Also, the employee does not have to speak directly with the manager to trigger a duty to report to HR. If a manager sees, hears or otherwise becomes aware of what would be reportable if shared with him or her directly, the manager must report it. For example, a manager cannot ignore overhearing a racial slur, even if no one complained or objected.
Finally, there is a benefit in explaining to managers why there is a duty to report even when the manager believes he or she knows what to do. For example, a manager may be correct that an individual employed for only four months is not eligible for medical leave requested under the federal Family and Medical Leave Act, but it will likely be beyond the knowledge of the manager to determine whether the employee may be eligible for leave under the Americans with Disabilities Act, a state leave law, or the organization’s policies or practices.
When managers understand why it makes sense to report to HR, they are more likely to comply with the reporting requirement. And when managers report certain occurrences to HR, it strengthens the partnership between them in maximizing legal compliance and minimizing legal risk. Stated otherwise, the reporting requirement is critical to creating a culture where employee rights are respected and protected.
Jonathan A. Segal is a partner at Duane Morris in Philadelphia and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law.
Illustration by Adam Niklewicz for HR magazine.