Avoid the Preemptive Strike

by paulfalconehr.com on March 18, 2014

One of the challenges about managing people in corporate America is that troubled workers sometimes look to manipulate a company’s Human Resources (HR) department to their advantage. Workers are very sophisticated consumers, and whether they figure this out on their own or are prodded by a plaintiff attorney looking to fatten a potential lawsuit against your company, workers are realizing more and more that it may be in their best interests to lodge a complaint with HR before you, their supervisor, have an opportunity to discipline or terminate them.

complaintgraphicThe logic? If an employee complains about a supervisor’s conduct before that supervisor has a chance to complain to HR about that individual’s performance, then any adverse action that the company takes against the worker may look like retaliation for having filed a good faith complaint with the HR department. It’s not coincidental, therefore, that retaliation is now the number one complaint lodged with the Equal Employment Opportunity Commission in conjunction with wrongful termination and discrimination claims.

Trust Your Gut to Avoid Stepping on a Land Mine

And you’d be surprised to learn how preemptive employees with long memories could be . . . Sometimes the complaint about a supervisor’s conduct will go back more than a year as employees try to desperately insulate themselves from any harm by striking first and hoping the company will then grant them some kind of immunity from discipline or other consequences.

In fact, much employment and labor litigation centers on who initiates the complaint. When managers complain about their employees’ performance, the result usually ends up with HR issuing some form of progressive disciplinary action, like a written warning. However, when employees initiate complaints about their managers’ conduct, it typically results in HR launching an internal harassment investigation, which may leave unsuspecting managers and supervisors on the sharp end of the investigation spear, defending themselves from allegations that may not necessarily be warranted or justified.

HR to the Rescue

Your best strategy as a manager or supervisor? Run, don’t walk, to Human Resources when you have a problematic performer on your hands and your gut tells you that this person may be less than trustworthy or otherwise manipulative. In essence, you have to get to HR first to create a record that focuses the company on your subordinate’s performance before that individual has a chance to launch a preemptive strike against you using terms like hostile work environment, sexual harassment, and/or discrimination. By doing so, you can successfully remove that arrow from their attorney’s quiver so they can’t shoot it back at you later down the road should litigation ensue.

Of course it could be that both the manager and subordinate have legitimate, simultaneous complaints about the other. The moral of the story, however, lies in understanding that whoever gets to HR first launches the record that drives the company’s response. After all, HR can’t know if your employee has a performance problem or if you’re indeed creating some kind of hostile work environment. HR will simply respond to whomever comes forward first—you, the supervisor, to discuss your concerns about your worker’s performance, or your subordinate, coming forward to discuss his supervisor’s inappropriate workplace conduct.

The Lesson: HR is Your Ally

Too many line managers in corporate America delay or flat out refuse to go to HR for help because they want to “keep things in the family,” handle their people issues themselves, or otherwise lead their teams independent of any other department’s influence. Nowadays that’s a mistake you can’t afford to make—there’s simply too much at risk, both for you and for your company.

In essence, your actions and decisions to escalate matters to HR (or refuse to do so) are creating a record here—both from a timing and factual standpoint—that your company may have to defend, and you’ll want to make sure that your handling of the matter will appear fair and equitable. HR can be that objective and dispassionate third party that helps you and the company defend its actions under circumstances like these.

So don’t forget to call on your anchor support system – Human Resources and/or internal/external legal counsel — when your gut is telling you that more may be at play than what meets the eye. In such cases, let your intuition guide you to the safe harbor resources that you have at your disposal. You may just find that, in the end, following your sixth sense that was telling you that you were possibly being “set up” may be the most effective counterstrike mechanism in your management arsenal.