HRM 7630 Module 1 Case Study: HR, Counsel and a Harassment Investigation Example

The Late Complaint: HR, Counsel and a Supervisor Harassment Investigation at a Community Bank

Student Name

MBA in Human Resource Management, Thomas Edison State University

HRM-7630: The HRM Professional and Attorney Relationship

Mentor Name

Month Day, Year

The Late Complaint: HR, Counsel and a Supervisor Harassment Investigation at a Community Bank

The Case

A teller at one of Pinelands Community Bank's branches tells HR that her branch manager has made repeated comments about her appearance and has twice touched her in ways she did not welcome, beginning eight months ago. She says she did not report it sooner because the manager controls her schedule and she feared losing hours. The bank has an anti-harassment policy with a complaint procedure and a hotline, and the teller signed an acknowledgment of it when hired. Two other tellers have left the branch in the past year; their exit interviews mention the manager as "difficult." The HR director must decide what to do and whether to call counsel.

When HR Should Involve Counsel

Walsh (2012) emphasizes that HR professionals handle most employment matters themselves, but some situations call for legal counsel early: when litigation is likely, when the alleged wrongdoer is a supervisor whose conduct may be attributed to the employer, when facts are complex or when the organization's legal exposure is significant. This case meets several of those conditions. The alleged harasser is a supervisor with authority over the teller's schedule, the conduct includes touching, and there are signs that others may have experienced similar behavior. HR should notify counsel the same day, while beginning to protect the teller immediately.

Privilege and the Investigation

Privilege can cover what employees tell a company's lawyers when the lawyers are gathering facts to advise the company. The leading authority is Upjohn Co. v. United States (1981), where the Supreme Court held that privilege can extend to communications between corporate counsel and lower-level employees gathered to give legal advice to the corporation. Whether to structure the investigation under privilege is a strategic choice. If counsel directs the investigation, interviews conducted at counsel's direction may be privileged, and interviewers should give employees an Upjohn warning, explaining that counsel represents the bank, not the employee, and that the bank may choose to disclose what is said. But if the bank later relies on the investigation to defend itself, it may have to disclose the investigation, which can waive privilege. Many employers therefore have HR or an outside investigator conduct the fact-finding while counsel advises separately.

The Affirmative Defense

If the harassing supervisor also fires, demotes or otherwise takes a tangible action against the employee, liability attaches to the employer automatically. Where no such action has occurred, two Supreme Court decisions announced on the same day, Faragher v. City of Boca Raton (1998), and Burlington Industries v. Ellerth (1998), hold that the employer may avoid liability by proving that it exercised reasonable care to prevent and promptly correct harassment and that the employee unreasonably failed to use the preventive or corrective opportunities provided. Who counts as a supervisor was settled later: only someone empowered to take tangible employment actions against the victim, according to Vance v. Ball State University (2013).

New Jersey applies its own law. The New Jersey Supreme Court in Lehmann v. Toys 'R' Us, Inc. (1993), set the standard for hostile work environment claims under the Law Against Discrimination, and in Aguas v. State (2015), it adopted the Faragher-Ellerth framework for supervisor harassment claims under that law, while emphasizing that the employer's anti-harassment policy must be effective in practice, not merely on paper.

Two issues decide the defense here. First, the teller's eight-month delay may be argued to be unreasonable, but her fear of losing hours to a manager who controls her schedule could make the delay reasonable, and courts look closely at whether the complaint process was realistically available. Second, the exit interviews describing the manager as "difficult" may show that the bank had warning signs it did not pursue, which weakens the claim that it exercised reasonable care.

Dividing the Work

Conclusion

The case shows why HR and counsel should work as partners. HR acts quickly to protect the employee and gather facts; counsel advises on privilege, liability and the defense. The bank's own conduct, including how it handled earlier warning signs, will matter as much as the teller's delay, which is why the partnership must begin the day the complaint arrives.

References

Aguas v. State, 220 N.J. 494 (2015).

Burlington Industries v. Ellerth, 524 U.S. 742 (1998).

Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993).

Upjohn Co. v. United States, 449 U.S. 383 (1981).

Vance v. Ball State University, 570 U.S. 421 (2013).

Walsh, D. J. (2012). Employment law for human resource practice (4th ed.). South-Western Cengage Learning.