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Keep Honing Your Legal Competencies

Monday, July 21, 2014
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In recent weeks, there has been much discussion concerning the Society for Human Resource Management's decision to offer its own HR certification program independent of the HR Certification Institute. The attention this move has brought to certifiable HR competencies got me thinking about just competent HR professionals are when it comes to employment law and where they would do well to hone their compliance skills and reduce their organizations' risks. Three of these areas are: 1) internal investigations, 2) whistleblowing and 3) diversity initiatives.

Internal investigations can be fraught with risk because botched ones can lead to litigation, whereas good ones can win the day. To combat the potential pitfalls of a shoddy investigation, HR professionals should -- among other things -- promptly initiate and complete the investigation, maintain confidentiality to the extent possible, avoid omitting important witnesses, pursue all contradictions that emerge in witness accounts, take appropriate remedial measures, and document thoroughly and communicate the results of the investigation.

Whistleblowers need attention as they are increasingly protected in the workplace. An HR professional must know how to respond or the employer could end up defending a retaliation lawsuit. On June 3, the Securities and Exchange Commission issued an order that awarded two whistleblowers $437,500 each, a full 30 percent of the monetary sanctions collected by the SEC.

It's also imperative that employers prohibit retaliation against whistleblowers and maintain reporting procedures and compliance programs that encourage employees to report issues internally. HR must serve as a liaison to the whistleblower, starting as soon as the HR professional receives the complaint. The HR professional should assure the whistleblower that the company prohibits retaliation, explain that the company takes good-faith complaints seriously, and assist in fielding the complaint and facilitating the investigation. HR should continue to serve as a resource to the whistleblower even after the investigation and should encourage feedback from employees to help keep complaints internal.

When initiating diversity programs, "getting it right" is important. There have been situations in which an employer embarks on a diversity program without fully understanding the law. For example, in an effort to promote diversity, some non-federal contractor employers voluntarily adopt affirmative-action programs where the employer makes race- or gender-conscious employment decisions (hiring, firing, promotions, etc.). Such programs have been successfully challenged in court. Another diversity initiative that is problematic is the misuse of employee networks for diverse employees, sometimes referred to as "affinity groups." While these groups are legally permissible, they should not exclude membership based on an individual's protected status.

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These compliance areas have to be viewed against the backdrop of the constantly changing workplace legal landscape. HR should partner with in-house and/or outside counsel in undertaking investigations, handling whistleblowers and implementing diversity programs. Such partnerships will also help raise the compliance skill level of HR and will benefit the profession and the organizations HR professionals serve.

Paul Salvatore is a member of Proskauer's executive committee and former co-chair of its global labor and employment law department. He can be emailed at psalvatore@proskauer.com.

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