Spring into Summer with The Chicago Bar Foundation Young Professionals Board (I’m on it) and the CBA Young Lawyers Section. Join us to celebrate our access to justice efforts with drinks, food & mingling.

Thursday, June 13
5:30 to 8:30 pm
Par Bar & Grille
160 N. Franklin, Chicago

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Protecting HR During Internal Investigations How to Protect HR During Investigations and What Happens When You Don’t Thursday, May 16 at 3:00pm ET | (2:00pm CT, 1:00pm MT, 12:00pm PT) Duration: 90 minutes Just as recently as last year, in a decision that impacts all of HR, courts have ruled that when HR does its job and conducts an internal investigation on discrimination or harassment, and as a result is fired for doing so, they are not protected by the anti-retaliation provision of Title VII. Take a minute to understand just what this means for HR, your company and your bottom line. The courts essentially found that Title VII does not specifically include employer investigations, as it does the EEOC’s, and insinuates that HR isn’t protected. Does this court decision mean that companies should utilize an outside or third party investigator? What happens if a company refuses to follow that investigator’s recommendation? Considering the above, what should HR’s role be when conducting investigations, especially those involving senior management? Should investigators be protected for “just doing their job?” How independent should HR be? Join Charles Krugel, an experienced labor and employment attorney, as he helps you answers all of these questions and more. He will discuss HR’s responsibility and options when it comes to harassment investigations as well as what we can expect for future court ruling on this issue. During this 90-minute webinar, attendees will learn: The distinction the EEOC and the courts make regarding internal investigations and Title VII Where the EEOC disagrees with courts on this topic The differences between Title VII’s “participation” and “opposition” clauses How to protect HR staff and investigators from discipline or discharge when conducting internal investigations How to protect the integrity of these internal investigations To better define HR’s role within a company in light of these court decisions How much money this type of litigation can ultimately costs businesses Webinar Benefits: 1.5 hours HRCI-approved credit 1.5 hours of CPE credit (Pre-approved in TN, ask about other states) Live question and answer session Complimentary copy of speaker’s presentation slides Your satisfaction is guaranteed. Presenter: Charles Krugel Charles Krugel has over 17 years of experience as a labor and employment attorney and has been running his own practice for 13 years. In addition to providing traditional labor and employment law services, he represents companies desiring to institute preventive and proactive HR functions. These functions include policies and procedures, which help to efficiently and discreetly resolve issues in-house and prevent lawsuits. They also help to reduce costs and act as catalysts for increasing productivity and profits. Charles has been lead negotiator for more than 100 labor and employment agreements and contracts, including noncompete and severance/separation agreements, collective bargaining and related labor agreements. Additionally, he’s argued more than 70 state and federal court cases, arbitrations, mediations and agency cases/complaints and resolved 150-plus labor grievances and similar in-house complaints and completed over 100 in-house investigations. Moreover, he’s frequently the subject of labor and employment law related TV, radio and print interviews.

On 5/2, I was featured in MO.com, modus operandi or method of operating. MO.com interviews & features entrepreneurs across all industries & from around the world. They focus on entrepreneurship & what makes entrepreneurs tick.  My profile is available here & below. Thanks to everyone at MO.com for this.

“Pay very close attention to a candidate’s behavior & personality. You want to hire someone that you feel comfortable with.”

Charles A. Krugel

Thanks to Dr. Lynne Curry, of The Growth Company, for quoting me in her recent article ”Tweet Sets Off Social Media Tsunami.” This concerns the recent firing of a female employee for Tweeting about sexual “jokes” told by 2 male individuals at a business conference. At a public presentation, during the conference, she Tweeted about these 2 guys telling crude jokes about women. She also Tweeted their photos. The males’ employer got wind of this & fired them. After the conference, the woman’s employer got wind of this too & fired her. Bad move, because if she sues, her former employer will probably be held liable for retaliatory discharge (i.e., adverse action against an employee for opposing illegal  harassing or discriminatory conduct). The article is below.

Tweet Sets Off Social Media Tsunami

When female tech developer Adria Richards heard a group of men sitting behind her at a conference make sexist comments, it grossed her out.

She tweeted their picture to her 9,000 followers with the caption “Not cool. Jokes about forking repo’s in a sexual way and ‘big’ dongles. Right behind me.”

Richards asked conference managers to deal with the men, citing the conference’s rules of conduct. Administrators escorted the men out of the ballroom.

Richards’ tweet set off a social media tsunami and led to one of the jokers and Richards being fired. Richards’ critics blasted her, protested that the men were only making childish geek jokes and threatened her with rape and death threats.

While her former CEO said his company supported Richards’ right to report offensive sexual comments, he said she crossed the line by tweeting the men’s comments and photographs. “Publicly shaming the offenders — and bystanders — was not the appropriate way to handle the situation. Needless to say, a heated public debate ensued. The discourse, productive at times, quickly spiraled into extreme vitriol.”

He terminated Richards, stating her actions divided and alienated the developer community she was hired to strengthen. He added that “the consequences that resulted from how she reported the conduct put our business in danger.”

After a situation in which so much went wrong, what suggestions does hindsight offer?

While the men’s defenders insist Richards “eavesdropped” on two men “just joking” with each other, the men spoke loudly enough to be overheard. If they wanted their comments to remain between them, they should have found a private location or spoken more softly.

Richards could have straightforwardly told the men behind her they offended her, giving them a chance to realize they acted like jerks and apologize.

Instead, she complained to the conference’s managers and used social media to publicly shout out that boorish behavior isn’t cool. By expecting others to handle the situation and avoiding direct honesty, she created a situation that backfired on her.

What were Richards’ employers’ obligations? While they sent her to the conference, no employer can protect employees from what others say in public conferences. Still, was it right that they bowed to public pressure and fired her?

According to attorney Charles Krugel, “Richards was there on her employer’s behalf. She shouldn’t have been fired. The attendees she blogged about were wrong, with one fired. Richards’ employer should have left it at that or at least followed up with the conference managers so this type of conduct doesn’t happen again. Although conferences have a reputation for being ‘frat’ parties they’re not — people are there to earn a living.”

“The anti-retaliation provisions of Title VII’s Civil Rights Act of 1964 make it unlawful to discriminate against an individual because she opposes unlawful discrimination,” added attorney Eric Meyer, a partner at Dilworth Paxson LLP.

“The law does not place any restrictions on the manner in which an employee complains about discrimination. Before the advent of social media, employees generally complained about workplace harassment in person, via telephone, in a letter, or through email. While a tweet or a blog post isn’t a traditional complaint, it is a complaint nonetheless.”

“Even if the law does not technically recognize the actions of which Ms. Richards complained as unlawful discrimination, she need only have a reasonable belief that what she experienced was unlawful.

According to Meyer, although Richards aired her complaint in an unusual way, it needs to be treated as a complaint: “It would come as no surprise if Richards’ employer ends up as the defendant in a retaliation lawsuit.”

Meyer added that even though her employer may have preferred Richards utilize “another method to complain about sex discrimination at the conference, the law is not concerned with the employer’s preference. A complaint by any other method or medium — even social media — is still a complaint. The law is designed to protect employees from unlawful harassment and those who complain about it.”

Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Company Inc. Send your questions to her at lynne@thegrowthcompany.com

You can follow Lynne on Twitter @lynnecurry10 or through www.workplacecoachblog.com

© Lynne Curry, April 2013, www.thegrowthcompany.com

On 4/10/13, I did my 7th interview for The Recruiting Animal’s Blog Talk Radio show. For about 15 minutes The Recruiting Animal & I discussed the relationship between cultural fit & diversity, & whether recruiters contribute to bias when trying to hire for fit. In addition to the podcast, below is additional information, via written correspondence between Animal & myself, regarding this topic. My segment of the show, 15 minutes, is here as an MP3. Also, the entire show can be found on the web here.

According to The Recruiting Animal: Corporate recruiters talk endlessly about the importance of cultural fit while their HR departments talk endlessly about diversity. The two ideas seem opposed to me. Fit says we want to hire people like ourselves & diversity says we want to hire people who are not like us — & it’s backed by law.

After show thoughts from The Recruiting Animal: As for the issue, I’m still confused. The answer most people chose today was that race, etc., does not rule out similarity of culture. But it seems to me that HR people assume that it does & that this is its advantage. They think it enhances the dominant white culture. So then, hiring for culture contradicts HR’s interpretations of diversity. They think race, ethnicity, religion = culture.
And they think diverse culture rather than mono culture is better for business.

From Chuck Krugel (addendum to the interview): The culture issue goes deeper than race, gender, religion, etc. I think that companies say that they hire for culture to find, instill or establish a certain set of behaviors among their employees & company; i.e., to establish a certain pattern of behavior at work. Also, employers hire for certain skills or abilities, but that could be exclusive of the behavior they desire. These skills or abilities include educational degrees, certifications & experiences.

The behavior I’m talking about can easily be confused with homogeneity among racial, gender, socioeconomic status & other classes, but really what employers are looking for are those employees who fit the company culture by manifesting the sought after behaviors. These behaviors could be excellent listening skills, being “one of the guys” at work, empathy, not questioning authority, ability to follow orders & communication.

Obviously, there’s a lot of overlap between these behaviors & skills & abilities, but the bottom line is that you can have a racially, ethnically or otherwise demographically diverse company, & still have one that’s more homogeneous in terms of personality types & behavior. Some practitioners believe that this homogeneity of behavior or personality types increases employee engagement & therefore increases profitability, while not discriminating on the basis of any of the protected classes. I tend to agree with this as long as the company can validate its need for those behaviors & personalities.

Response from The Recruiting Animal: But, here’s the problem as I see it. Goody goody HR people conflate cultural, intellectual, racial, ethnic, religious & gender diversity. They claim that if someone is Greek he is going to have a different culture & that this diversity always adds to the business process in a company dominated for example by WASPs. Intellectual diversity apart from racial, etc., diversity is completely ignored. The idea that culture clash causes friction is also ignored. The idea that ethnically diverse people are not culturally diverse solves the problem, but it contradicts the ideas of HR people that they are diverse and that diversity is good.