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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 37951
Experience:  Retired (mostly)
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Should I consult a lawyer before responding to an HR complaint

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Should I consult a lawyer before responding to an HR complaint filed in which I was named ? I am being asked for a statement and I have no confidence in the investigator.
Hello,

Can you briefly describe the complaint?

Customer: replied 3 years ago.

Recently an HR complaint was filed for hostile workplace and sexual harassment. I am one of several named in the complaint and was set to give an interview to HR this week. Today I got a letter from Dept of employment and housing and it would seem that we are being sued. I was accused of stating " i wanted to runaway and do sexual things with her" with the person and she also stated that I poked her or grabbed her rear end. There are several people named and she is a disgruntled employee. She is a peer level mgr.

Okay thanks.

Title 29 Code Fed. Regs. 1604.11 (federal law) requires that an employer take prompt action to investigate and remedy sexual harassment claims, or face liability for the failure.

This regulation creates a level of fear in HR departments that is unparalled by anything else in the workplace. The typical response to a claim of sexual harassment is to immediately terminate the employer of the alleged purpetrator, regardless of the outcome of the investigation. The reason is simply that it's the most cost effective means of eliminating the liability problem.

Given this background you have good reason to be suspicious of any investigation, because, frankly, is usually pure BS -- just a dog and pony show that always ends in the same result: job termination of the investigated employee(s).

Here, the employer is apparently already being sued. Consequently, there is now an incentive to maintain your employment -- because by doing so, the employer can control your testimony and hopefully limit liability. So, you have that going in your favor -- whereas had there been no lawsuit pending, you probably would be writing here about obtaining unemployment insurance benefits (seriously).

Anyway, your position at this point is that you will probably be contacted by an attorney for the employer, and that attorney will pretend to represent your interests. But, he/she only represents the interests of the employer, and if throwing you under the bus is advantageous, then that's what the employer will do.

So, when you ask if you need a lawyer, then the answer is that unless the employer is prepared to "defend, indemnify and hold you harmless" from any actions resulting from this legal action, then you need your own lawyer -- because otherwise, you could be sued by the employer to contribute to the cost of any damage award in favor of the complaining employee, under Labor Code 2865.

Hope this helps.
Customer: replied 3 years ago.

Thank you. I have heard from 2 non experts 2 conflicting answers. 1 being deny deny deny and the other being admit and look to limit damages. If I request that counsel review the documents I got Saturday is that being perceived as delaying or not cooperating? Will they or can they legally hold that against me?


 


 


Lastly if the accuser has a history of sexual talk and conversations should I bring that in to play in my statement.

Thank you. I have heard from 2 non experts 2 conflicting answers. 1 being deny deny deny and the other being admit and look to limit damages. If I request that counsel review the documents I got Saturday is that being perceived as delaying or not cooperating? Will they or can they legally hold that against me?

 

A: First, Cal. Labor Code 2922 permits the employer to terminate your employment "at will:" at any time, for any reason, or for no reason at all. The only reason why you are not already out the door right now, is because the employer views the threat of legal action imminent or already commenced.

 

Nothing you say or do going forward is going to save your job, if the employer decides that your more expensive than you're worth.

 

If you have no already sat for an investigation, and no one from the employer has formally asked you any questions about this matter, then denial is a good plan. I don't believe that it will matter, one way or the other, as far as your continuing employment is concerned, but if you deny what occurred, and the coworker cannot prove that you did or said anything, then the coworker will lose the lawsuit, or it will go off the rails early, with minimal economic damage to the employer.

 

If there is independent evidence that you committed any of the alleged bad acts, then I would still deny everything, because, once again, Labor Code 2922 permits the employer to terminate you, either way. So, unless you can get that indemnity agreement in writing, you don't have any protection from your employer, no matter how you answer the questions.

 

Lastly if the accuser has a history of sexual talk and conversations should I bring that in to play in my statement.

A: Well, if I were representing you, your statement would be: "My client respectfully XXXXX XXXXX and every allegation of the complaining worker, and that is all we have to say on the matter -- unless you are prepared to formally agree to defend, indemnify and hold harmless, my client from any liability connected to this incident."

This could get you walked out the door immediately. But, since you have no protection from that happening anyway, I don't see any advantage to assisting the employer without some sort of advance quid pro quo.

My point is that anything you decide to say to the employer, no matter how it may seem justifiable -- it will be used against you. Because, that's simply how these sexual harassment witch hunts go down. Everyone smiles and makes nice -- they get you to tell them everything so that they can mitigate their own liability -- and then they have security escort you to the door.

So, in my opinion, the only rational response is practically no response at all.

Hope this helps.
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

Awesome info and thank you. How could I contact you or find resources in CA if need be (I live in KS)

I'm flattered by your interest, but I'm retired and not taking cases at this time. If you need a lawyer referral, see this link.

Hope this helps.

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