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The HR Professional's Liability Conundrum When Making Employment Decisions

I often counsel HR professionals to put less of their hearts and more of their brains into their professional responsibilities.  Why you might ask would I give this advice, given this counsel typically elicits a response such as "But I love helping people?" Yes, helping people can be a powerful and noble goal. However, under some state and federal laws, HR professionals working to avoid lawsuits and keeping their company out of harms way, must recognize they can be held individually liable for their actions if their decision-making was outside the scope of their job responsibilities.

In the new employee-friendly litigation environment, a number of laws hold supervisors and HR managers, personally liable for conduct outside the scope of their employment responsibilities.  These laws include the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), as well as some state hiring, defamation, and nondiscrimination acts. On the flip side, HR decision makers have typically not been held liable under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) for employment decisions.

In recent years, there have been several instances of HR professionals being found liable after trial and assessed large sums in damages payable to the employee or employees who brought the lawsuits. It should be remembered that anyone who commits an act that gives rise to an employment complaint, regardless of their level of involvement, could be at risk of losing personal assets even if the action was not intentional.

In light of this gray zone, it is critical HR professionals have a process for avoiding lawsuits.  There are several steps you can take to avoid personal liability that have been described by Joanne Deschenaux, senior legal editor for the Society of Human Resources.  They include:

  1. Educate yourself in what the requirements of federal and state employment law are; ignorance is never a defense.  Know the law.
  2. Follow the law and not necessarily your supervisor's wishes. Question the orders or suggestions of everyone, especially a supervisor, when it "doesn't seem right." Ask questions and seek clarification before engaging in possibly questionable behavior.
  3. Keep your policies up-to-date, make sure they comply with current law, and follow them.  You must communicate them, and ensure senior management supports the policies. Make sure you actions are consistent with the company policies when you are acting within the scope of your responsibilities.
  4. When conducting investigations or considering corrective actions, make sure you have done due diligence in bringing the facts to light; make sure managers and HR are operating with the same set of facts.
  5. Make sure you document all your actions, and make sure managers are documenting their actions and decisions. 
  6. Communicate truthfully with employees in an open, honest, and confidential manner.  Don't express anger, and stress there will be no retaliation for any information that comes forward.
  7. Respond professionally to all inquiries or requests from authorities.  Do not obstruct investigations or provide false information to anyone.
  8. Evaluate the need for employment practices liability insurance.  It is relatively inexpensive, will cost less than the financial impact of extended litigation, and is provided by several carriers as long as you are operating within the scope of your professional responsibilities.
Posted July 25, 2012

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