Like any other profession, there are plenty of HR horror stories out there – from the “Why We Hate HR” to “It’s Time to ‘Blow Up’ HR”. That being said, human resources plays an important role in the organization. It’s often the “go-to” place for employees and, as such, they need to feel comfortable coming to HR. Here’s an example:
An employee was recently accused of harassing and bullying by someone with anxiety. The accuser kept a log over 8 months and never said anything to the employee. The employee said when HR met with them, they never listened to their side of the story. Now, the accused employee has anxiety and depression. They’re having a hard time working because they were told that they need to hold themselves to a different standard because the accuser has anxiety.
The employee feels targeted and feels they can't turn to HR because they didn't listen or care during the first interaction.
Obviously, we’re only hearing one side of the story. So it’s hard to resolve the situation, but there are a few things we can discuss about HR, credibility, and investigations. So, I asked employment attorney Heather Bussing if she would share her expertise and, thankfully, she said yes!
Please remember that Heather’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Heather, one of the first things that struck me about this story is that the employee knew their accuser has anxiety. We don’t know how they learned that piece of information. Is an employee having anxiety something HR should know and/or share with others?
[Bussing] If the anxiety rises to the level of being a disability under the Americans with Disabilities Act (ADA) or requires leave under the Family and Medical Leave Act (FMLA), it would make sense that HR knows about the condition because the employee would have disclosed it when she asked for leave or accommodation. The employee may also have simply told HR in the course of making the bullying complaint.
As for HR sharing with others, it is important not to disclose medical information about employees to anyone who does not need to know it. Confidentiality is sometimes required by the Health Insurance Portability and Accountability Act (HIPAA), although most employers have very limited, if any, coverage under HIPAA. Mostly, it has to do with privacy, trust, and not promoting gossip or speculation about people, taking leave, or changing jobs. It is simply in everyone’s best interest, particularly HR’s, to keep employee health information confidential as much as possible.
When dealing with leave issues or even an investigation of a complaint, it is best to keep any discussion of medical information general. Discuss it as a ‘personal issue’ or ‘health issue’ rather than a specific medical condition. Digital versions of medical reports for ADA, workers’ compensation, or FMLA, should be password protected or encrypted. Lock up any hard copies.
How a company should accommodate someone with anxiety gets very tricky because there is simply no way to make someone with anxiety feel safe or comfortable all the time. (If there were, I would sign up immediately.)
My sense (guess) in this case, is that the employee with anxiety has identified with her diagnosis and spends some time and energy letting other people know. If so, she probably told both the other employee and HR. When that happens, the information is no longer confidential. But HR should continue not to discuss it except with people who need to know regarding any investigation, leave, or other accommodation.
The employee feels that, in the initial meeting with HR, they weren’t being heard. Is there anything an employee can do during (or after) the meeting to get their side of the story told?
[Bussing] In this situation, it did not seem like she was disciplined or there were any other admonitions except to try to be nice. So, it would be good for her to take this into account when considering whether or not she was heard or believed. If HR truly believed the person complaining, there would likely have been a stronger response. Bullying is not okay. So my take is that HR is taking both sides with a grain of salt.
Yet, not feeling heard when there is a claim or dispute is a common issue. Sometimes it is because HR believed the first story they heard or have some other (reasonable or unreasonable) bias toward the other employee. Sometimes, it has more to do with the employee’s feelings and impression because HR did not agree with her completely.
Either way, it is a difficult position. If the employee goes over HR’s head, it will create more drama and almost always upsets HR, which can make things more difficult for the employee down the line.
So I usually advise sitting down and writing out what she wants HR to know and understand. Then get someone who has some objectivity and who will tell her the truth to look at it and see where it needs clarity or toning down. Employment lawyers are good at this and may even do it as part of an initial consult.
She should explain in the memo that she left the meeting not sure whether she was clear in explaining what happened and wanted to follow up in writing to make sure HR understood. If there is a decision she wants modified or clarified, ask for that specifically. The important thing is to stick to the facts and make the memo as clear and reasonable as possible. If all she wants is to be heard, this would create a clear record.
If there is something specific that she wants, always start with HR and only go beyond that (either to a higher level internally or making a legal claim) after discussing it, putting it in writing, and if applicable, following grievance or other policies.
Don’t assume that just because things did not go your way, that you were not heard or understood. Many HR decisions are about finding balance and compromise when there are competing stories. If you need your way, all the way, all the time, it may not be HR that is the trouble.
The employee feels that this incident has caused them to experience anxiety and depression that is having an impact on their work. Do they need to inform the company that they need a work accommodation? Why or why not?
[Bussing] At this point, she may have situational anxiety and depression that could benefit from therapy. She has a choice about whether to get that on her own, request FMLA leave if needed, or make a workers’ compensation claim. The more the employer is involved, the more the employee may be required to reveal information about her therapy or medical treatment and life. So consider it carefully.
If the condition becomes chronic and more severe, it may make sense to ask for leave either under the ADA if the condition qualifies, or the FMLA either way.
The reality is that just getting entangled in the process of requesting leave or making a claim can exacerbate the anxiety and depression. So she should weigh the options with her doctor or therapist and if it seems like she will need leave, also talk to an employment attorney.
Is it fair to tell an employee that they need to hold themselves to a different standard? Isn’t that setting a precedent?
[Bussing] The oddest part of this story is the idea of telling an employee to hold themselves to a different standard. What does that mean?
I don’t have enough information to understand whether there is manipulation and bullying going both ways. But it appears that there is now a competitive anxiety contest starting. If so, giving either side an advantage by imposing a different standard of conduct or behavior on one side is a really bad idea.
In addition, requiring employees to be kind is not a reasonable accommodation. It should be the general standard of conduct for all, even if some people have anxiety and depression.
While there can be some tolerance for difficult behavior due to someone’s medical condition, if it is permanent, they may not be qualified to have the job. This is a complex ADA accommodation analysis that is not possible here.
But the focus should be on the person with the anxiety and depression, whether she can do the job, and how to get her help. The company should not allow her to do whatever she wants while the rest of the company has to walk on eggshells.
Last question, what are the implications of employees failing to bring issues to HR because they don’t feel HR listens or cares?
[Bussing] It depends. If employees feel comfortable talking to their managers and the managers are responsive, then HR rarely gets directly involved, and there will be few implications.
In other organizations, where HR is the mediator of workplace issues, the implications are much larger. When people don’t trust HR, they usually deal with difficulties at work by starting to hate their jobs, which leads to performance issues, which leads to losing employees. Attrition is expensive, time consuming, and puts a burden on the remaining employees while the organization finds replacements.
It also means that HR will not hear about problems until it is too late, which often means more claims and lawsuits.
But most of all, if employees don’t trust HR, they probably don’t trust any of the leadership and that is a culture and management problem that does not bode well for the future of the organization.
Listening and caring are the foundation of working with other people. If HR is not getting that right, they have lost their way.
A HUGE thanks to Heather for sharing her knowledge. Be sure to check out Heather’s writing on HR Examiner for more great insights.
As you can see, employee situations aren’t always easy to facilitate. And some of what has to be fleshed out is the context of the situation. One thing is certain, employees need to feel that they can go to HR. They might not like what HR says, but they are comfortable speaking with someone in the department.