April 2017 - Ethical vs. Legal Responsibilities for HR Professionals
Do your duties as a company representative and a private citizen align?
Questions about workplace ethics have no single or simple answer. So much depends on a situation's specifics. Even issues that seem straightforward can present numerous hidden traps—both legal and ethical—to the people trying to resolve them.
To make things even more complicated in HR, practitioners have "well-defined responsibilities but also have responsibilities as a private citizen, as a workplace colleague and maybe as a friend," said Michael Connor, editor and publisher of the online magazine Business Ethics. "Those are all very different roles."
When an ethics question arises, Connor says, HR professionals need to understand exactly what role they're playing. "As a representative of the company, you have one set of responsibilities. As a concerned private citizen, you have other responsibilities. It's nice when those converge, but that's not always the case."
"It's a very tough topic," agreed Laura Sack, a New York City-based partner and co-chair of the East Coast employment practice of law firm Davis Wright Tremaine. "In an HR person's world, not very much is black and white, but [the questions you face] may still have legal implications."
Make Boundaries Clear
The stakes involved in ethical questions are often high, if not for the company, then for the employees and managers who are involved. For example, what's an HR generalist to do when he promises to hold something in confidence and that pledge proves impossible to keep?
John Boyce, vice president of human resources for enhanced network provider Vail Systems in Deerfield, Ill., faced that conundrum at a previous employer. While training new workers at a refinery, he told them he would keep any safety violations they witnessed before their next training session in confidence so they could discuss them openly. Expecting to hear stories of minor issues, such as goggles not being worn as work was done, he was stunned to hear two workers describe how they were instructed to vent poisonous gas into the air, a clear violation of company policy and safety procedures. "They could have died," Boyce recalled.
Taking the two men aside, he told them that he'd had no idea they had been put in such a dangerous situation and that, despite his promise of confidentiality, he had no choice but to report the incident. When the employees objected, an apologetic Boyce responded, "You wouldn't want to work at a place where this wasn't reported." Although he was able to transfer one of the employees to another department, the second had to remain with his original team, which he described a year later as "going through hell."
The lesson he learned, Boyce said, was that HR professionals have to set boundaries around what "in confidence" means. While he had promised confidentiality to the employees he was training, keeping that promise would have resulted in potentially life-threatening operations continuing at the refinery, unbeknownst to management. Today, he instructs his staff members to tell workers that if they tell HR something in confidence that should be reported, then HR will do so.
Deciding What to Do
Many common situations that confront HR professionals may seem to be ethical dilemmas but are actually professional judgment calls, Sack noted. For example, if an HR staffer suspects an employee is the victim of domestic violence, is the staffer obligated to call the police? What if an employee asks to forgo a pay increase because accepting it would mean a cut in social services benefits? Or another is using a parking placard intended for people with disabilities and bragging to co-workers that it actually belongs to her brother-in-law and she's just "borrowing" it for her own convenience? Does HR have an obligation to look into such matters?
The answer varies. "I see HR as having to determine whether the issue involves the employer or not," Sack said. "They have to decide if it's appropriate or necessary to get involved or not."
To do that, she suggests asking yourself these questions:
- To my knowledge, is there a potential legal issue here for the company?
- Is someone's safety in jeopardy?
- Does this conflict with the company's culture, mission or policies, or what we expect of our employees?
If your answer to any of these is yes, then consider taking action, Sack said. That, of course, leaves you with a new question: What exactly should that action be? For her part, Sack wouldn't characterize the above examples as "ethical" issues for HR, but rather as judgment calls for HR to make, although she noted that "I can see where they might be seen [as ethical quandaries]."
Others say the issue isn't that simple. "Ethical versus legal is a false dichotomy. Many issues are both, and almost certainly any legal issue is also going to be an ethical issue," said Chris MacDonald, director of the Jim Pattison Ethical Leadership Education & Research Program at Ryerson University in Toronto. "The only question is whether the legal issue is sufficiently clear and pressing as to make ethical decision-making seem irrelevant."
For example, MacDonald said, "Where I live there's a legal duty to report suspected child abuse. If an HR professional came to suspect that, the legal duty is sufficiently strong that no one should need to engage in nuanced ethical reasoning. If you're not sure whether there's a legal issue, you need to consult a lawyer."
And bear in mind that areas that at first seem gray often are clarified the more you learn about them. "Many ethical dilemmas depend on a precision of facts," Connor said. This is why he "gets nervous" when hears that a practitioner "suspects" an employee "is somehow involved" in a domestic-violence situation, for example.
"Facts matter," he emphasized. "The instinct to help is admirable, but make sure you have your facts straight. If you're not familiar with domestic abuse situations, consult with qualified professionals. Good intentions do not overcome the harm that can be done to an employee and/or his or her family" if you report your suspicions to the police and they turn out to be unwarranted.
Boyce agreed. "I wouldn't tell the generalist to call the police. Since they're not a mandated reporter, it would be overstepping on the company's part," he said. "I would encourage the generalist to talk to the person and provide EAP information and perhaps more targeted material or information, such as for a domestic abuse hotline, but taking it to the next step is going too far."
"HR can certainly confirm the employer's support for the victim," Sack said. "And some jurisdictions may confer certain legal rights on victims of domestic violence, such as time off from work to go to court. But I wouldn't recommend reporting your suspicions to authorities unless you have explicitly obtained the victim's consent. Reporting it without the victim's knowledge and consent could make things worse for the victim."
Ethics Without Judgment
For Connor, the question of an employee forgoing a raise in order to avoid social services cuts is straightforward. "Yes, it's ethical to go along. An individual's motives shouldn't figure into it," he said. "If they forgo a raise, so be it."
Boyce, also, wouldn't have a problem agreeing to allow an employee to decline a raise. However, he would take issue if the employee asked him to help concoct a way to receive more compensation and somehow keep it off the books, by providing gift cards, for example. His core belief in handling ethical issues is, "Don't lie."
Also, Connor warns that practitioners "need to be extremely careful" not to apply judgments that could be based on socioeconomic bias when addressing such situations.
"When an upper-class executive chooses to work part-time or flex-time in order to be more available for her or his children, that's not generally frowned upon—in part because that executive often has additional sources of income and doesn't require social services," he said. "Workers on the lower end of the salary scale often need to make different—but equally difficult—decisions that affect their status, pay and benefits."
When many HR professionals confront ethical questions, they "seem not to know what to do, or even how to think about such matters," said James O'Toole, director of the Neely Center for Ethical Leadership at the University of Southern California. He sees practitioners as being "far more comfortable dealing with [legal issues], especially when it comes to questions relating to labor law, which they see as legitimately within their bailiwick."
Because ethical dilemmas can be both subjective and nebulous, O'Toole recommends reading A Framework for Ethical Decision Making (Markkula Center for Applied Ethics at Santa Clara University, 2009). It can help you recognize ethical issues and think about what actions you should take, he said.
"As you will quickly surmise, ethics isn't about a set of rules," he explained. Rather, it's a way of thinking about how you conduct your life and do your job. "Alas, HR people tend, instead, to think in terms of rules, and that may well be the reason why they shy away from ethics."
While HR practitioners may object to O'Toole's contention that they "shy away" from ethical issues, many would probably agree with Boyce when he says, "The legal issues are relatively easy. There's a pretty clear line. The struggle comes when something is legal but wrong."
Feffer, Mark. “Ethical vs. Legal Responsibilities for HR Professionals”
SHRM 30 Mar. 2017
SHRM.org. 31 Mar. 2017