Workplace Credible Activist

by Denise A. Romano, MA, EdM

Any discussion of taxes, Social Security Disability, Medicare, Medicaid, the deficit, unemployment, or poverty needs to acknowledge that most legitimate employee complaints are mishandled – and our EEO and ADA laws are failures in workplaces because they have no teeth and the burden of enforcement is on wronged employees – most of whom cannot afford to sue, which is their only recourse.

Yes, these are all directly related.

When employers get away with violating EEO laws and firing people, those wrongfully terminated employees frequently wind up using unemployment benefits, and some end up using Medicaid and other services.

When employers get away with violating the ADA (Americans with Disabilities Act) by refusing to accommodate or firing people with disabilities, those wrongfully dismissed or fired employees frequently end up on Social Security Disability and Medicare. Furthermore, disabled people have a much harder time getting a job than non-disabled people, so they are more likely to remain on Social Security Disability because even though many of them are very capable and talented, most employers are unwilling to provide the accommodations many of these people would need in order to be able to work. This all costs taxpayers money.

Those people who harass, unlawfully retaliate, and wrongfully terminate people usually keep their jobs and repeat these violations of US labor laws (EEO, ADA, OSHA, etc.) again and again. This is an epidemic in US Workplaces, and even if HR executives are courageous enough to do the right thing and abide by these laws, they are often overruled by higher-ups who have more authority.

There is an epidemic of violations of EEO, public safety, fraud, and corruption laws that is directly related to labor law violations in government entities and US corporations. Despite this epidemic — OSHA, City and State Ethics Commissions, AGs, and IGs are generally unresponsive to labor violation complaints in workplaces and government, even when proof is submitted, tax dollars are misused, and there are rampant ethics, safety, and other compliance violations.

Whistleblowers – at every level – need to be protected and taken seriously, but rarely are. So much taxpayer money is wasted in the wrongdoing the continues because they aren’t, and so much taxpayer money is then spent when they are wrongfully fired.

The EEOC, OSHA, and City and State Divisions of Human Rights are underfunded and understaffed, thus their responses to these complaints are almost always delayed and insufficient. Many complainants are retaliated against and/or fired before they’re even assigned a case number or investigator.

Given that most government employees are required to report legal and ethical noncompliance, mandatory imparital investigations should be (but are not) implemented without exception and accompanied by absolute prevention of unlawful retaliation against complaining employees. There should be (but isn’t) a freeze on any termination of any complaining employee while a sound, impartial, unbiased and thorough investigation is completed.

City, State, and Federal laws should (but don’t) make it unlawful for any taxpayer money to be used to pay for gag orders or settlements – or to pay internal or external lawyers to spend any time working on silencing complainants, retaliating against complainants, preventing investigations of accusations, or protecting those found guilty of violating labor laws.

Even after the completion of such an investigation, retaliation against complainants should be (but isn’t) prevented. Violations of EEO, OSHA, public safety, ADA, retaliation protections, whistleblower protections, union protections and fraud/corruption prevention laws should be (but are not) classified as serious crimes that result in prosecution.

There is extremely insufficient protection for employees who use appropriate channels to report noncompliance in private, government, and non-profit workplaces. This lack of protection also applies to HR professionals — who often learn that those with authority over them may direct them to violate laws on a regular basis.

When HR professionals make these same complaints about non-compliance (even while armed with a systemic knowledge of rampant violations), they are often in the same boat as any other employee. They are met with ineffective help from the EEOC, state Divisions of Human Rights, AGs, IGs, and Ethics Commissions — and often find themselves unlawfully retaliated against, met with threats and false accusations designed to ruin their reputations and careers, and fired without sufficient recourse.

When the HR employee refuses to go along with ignoring labor and other laws — they can quietly look for another job and then quit and say nothing, quit and complain (and often get nowhere or be retaliated against for having done so), or stay in the situation and try to influence their leadership to operate ethically and comply with labor laws.

It is a gamble as to whether even the most skilled HR employee can persuade leadership, managers, and their workplace General Counsel to actually comply with labor and other laws. If the leadership of a workplace is determined to continue to allow violations of laws and to continue their very own non-compliant behavior, the HR employee will get nowhere and will probably experience unlawful retaliation and/or be fired – no matter how senior they are.

Only employees who can afford 5 or 6-figure lengthy legal battles have a chance of recourse — and employers know this (whether they are government, private, or non-profit). Most workplaces can outspend the average employee when it comes to legal fees, and most employers know this and use it in their strategy to silence and simply get rid of employees who make legitimate complaints while they keep and protect those who harass, retaliate, and unlawfully discriminate.

There are also strict time-limits on reporting workplace harassment, retaliation, and unlawful discrimination. Most employees are unaware of this, and employers know this. Employers will often drag out their own internal processes to give the employee hope that the situation is improving while they document made up instances of “poor judgement” or “bad job performance” before they fire the complaining employee. Sometimes they’ll even blame the employee for the mistakes of other employees knowing that all of this is so stressful on the employee they plan to fire that they will very likely get away with it. 

Most employment lawyers will not take such cases on contingency, even if complaining employees can prove employer noncompliance with labor and other laws. When there is rare justice, it comes months — or more likely — years later — often after unlawful termination and great damage to careers, health, families, and finances.

Most internal legitimate employee complaints are dismissed by noncompliant employers who unlawfully retaliate against these employees, terminate their employment and health coverage, and sometimes pay them a small sum for which they are desperate and on which they are taxed.

This money almost always comes with a gag order and the dismissal of the complaint with any government agencies (if complaints have been filed there – EEOC, etc.) – so there is never an official or public investigation, and the perpetrators of serial noncompliance and other violations of the law remain employed – usually to harass and discriminate again.

Many General Counsel attorneys falsely believe their duty is to protect the corporation by any means instead of ensuring legal compliance and remediating noncompliance according to non-retaliation requirements in EEO and ADA laws.

General Counsel attorneys who knowingly cover up unlawful practices in corporations and government entities should be addressed by the criminal justice system and their state BAR associations given the enormous financial fraud perpetrated upon taxpayers and shareholders when significant funds are used to unlawfully retaliate against employees who exercise their rights to complain about noncompliance. When this occurs in government entities, it can  amount to fraudulent misuse of taxpayer money.

These problems are epidemic and do require deterrence in the form of large fines, improved processes, actual assistance for complaining employees, criminal liability for those who violate labor laws, and guaranteed sound impartial investigations into unlawful practices — even when there are settlements with complaining employees. Gag orders and “admitting to no wrongdoing” need to be made unlawful, regardless of settlements with employees.

Nearly everyone knows someone who has experienced harassment, discrimination, retaliation for making legitimate complaints, safety violations, failure and/or refusal to conduct sound / unbiased investigations of employee complaints, cronyism, nepotism, inconsistent application of policies, union-busting, ethics violations, fraud, and many other unlawful things that should not happen in U.S. workplaces, but which do happen in epidemic proportions.

We need our laws to have teeth and to actually be enforced.

The fact that many employees who make legitimate complaints lose their jobs is extremely frightening for most employees; it does result in employees not complaining and in there being no consequences for those who violate labor laws. The stress and fear resulting from employees experiencing violations of labor laws can adversely impact health, spouses, children, and other family members.

When managers and companies use intimidation and retaliation against employees to keep them too afraid to complain, it is technically considered unlawful retaliaion, but that is meaningless since our current system of recourse is ineffective and financially inaccessible to most employees.

Consider the many whistleblowers who tried to report wrongdoing using appropriate channels: Karen Silkwood, Frank Serpico, Jeff Wigand (the tobacco industry whistleblower), and many more. Most have had their lives ruined, and  only a few were better off after having blown the whistle.

States that make it a crime to audio record conversations without the permission or knowledge of those who are being recorded, make it even harder for employees to prove that labor laws are being violated.

I was a successful whistleblower and was lucky that the USAO and FBI took my case seriously. However, even though there are very clear laws that exist to prevent unlawful retaliation, the workplace that employed me and on whom I blew the whistle for Medicaid fraud, did try to fire me because of my whistle blowing. They also tried to say that I was the one responsible for their Medicaid fraud scheme – even though it had existed since before I worked there.

Most employers will resort to lying and smearing employees who bring forth legitimate complaints just to protect harassers or other employees who violate labor laws. Employers who do this care about protecting their reputation as a company or organization. Frequently, they care about protecting the employees who violated labor laws because they are famous, powerful, related to, or friends with someone who is powerful at the company. 

For every headline about someone who has been awarded millions of dollars for violations of EEO laws, there are thousands of legitimate complaints that are never reported or are reported but go nowhere

This is not because those complaints are without merit, but because employees are afraid, most workplaces do not handle complaints properly, complainants are fired and/or miss deadlines, or they can’t afford lawyers. For most employee complaints that are reported and “handled” in workplaces, there are gag orders and small settlements. Companies (including government employers) and executives are allowed to admit no wrongdoing.

The epidemic problem of the ADA & EEO being ignored results in more people living on SSDI (Social Security Disability Insurance), higher unemployment rates, higher raters of poverty, and more hostile work environments.

ADA non-compliance presents even more complex problems for employees with disabilities:

When disabled people are hired and accommodated, they must fear new managers and new workplace leadership. Just because the person who hired a person with a disability is willing to accommodate those disabilities, does not mean the next boss will or that the same boss will continue to do so under new leadership. The stress of having a new manager or leaders who are ignorant about compliance and/or against accommodating disabled employees — and — the stress of experiencing harassment, discrimination and hostile work environment can exacerbate many disabilities.

Many workplace leaders (including General Counsel who should know better) are ignorant about and/or hostile toward their ADA and EEO compliance responsibilities. When their HR executives try to educate them, some become even more hostile to EEO and ADA compliance issues.

I’ve had one executive say to me, “I don’t care if we get sued”. I’ve had a General Counsel insist that “We don’t have to comply with the ADA”.

If our current system worked:

• Every workplace in the US would have near-total compliance with EEO, ADA, and other employment laws.
• All workplace leaders and General Counsel would want to comply with these laws, so they’d make sure they understood them by attending credible trainings.
• Workplace leaders and General Counsel would also make sure that all managers and employees received annual training to be sure they understood our employement laws.
• All HR personnel, managers, and leaders would be properly educated and trained about their compliance responsibilities, and there would be a required government certification or license.
• If HR personnel warned of possible non-compliance, it would be taken seriously and immediately remediated.
• If all of that failed, and employees made internal complaints, there would be impartial investigations, immediate remediation, no retaliation, and additional training as needed.
• Employees who were unable to stop harassing, discriminating, and retaliating — no matter what their talents, skills and rank — would be terminated, and employees who had legitimate complaints would remain employed and perhaps even rewarded for having helped the workplace be more compliant.

For people w/ temporary or permanent disabilities, Job Accommodation Network (JAN) is the best resource to help doctors and employers understand limitations and what reasonable accommodation(s) may be needed. However, despite the brilliant solutions JAN offers at no cost, most employers will not cooperate with requested ADA accommodations.

Employees must learn how to write effective memos and create the necessary paper trail that is needed to show they’ve tried to diplomatically, professionally, and clearly address labor law non-compliance, but they must also understand that many states can legally fire employees for no reason or almost any reason and easily get away with it. Free Sample Memos can be found elsewhere on this blog.

SOLUTIONS: 

The EEOC and State Human Rights Divisions should be staffed with labor lawyers sworn to uphold EEO and ADA laws who can’t be bought and who make determinations on every complaint so that these cases never go to juries. There needs to be total transparency to prevent corruption.

EEO and ADA laws need to be revised so there is real recourse. There need to be significant fines of both executives and workplaces for non-compliance with EEO, ADA, and other laws. OSHA sometimes fines employers, but these fines are often considered the cost of doing business and are not high or frequent enough. It would also help if criminal charges could be made against executives who refuse to comply with these laws.

Legal complaints about labor law violations should be made by experts, not juries. The expense of investigation should be borne by the state, which should be reimbused by corporations and individuals who violate these laws, not by employees whose rights are violated and who cannot afford to sue.

Justice under EEO and ADA laws shouldn’t be a gamble or depend on who can afford an attorney.

EEO trainers should be required to use material that is approved by the EEOC and/or State Divisions of Human Rights. As an HR executive, I had to sit through a workplace training in which a highly-paid lawyer actually said, “There is no such thing as sexual harassment”. This was right after a high-ranking executive had spent months sexually harassing at least two employees there. 

General counsel attorneys and any attorney hired in any capacity in workplaces should be legally sworn to comply with EEO, ADA, OSHA and other laws under penalty of being disbarred. There need to be stiff penalties that are more than the cost of doing business levied upon employers and executives who violate EEO and ADA laws and who protect harassers and retaliators, and who themselves harass and retaliate.

The EEOC and/or State Human Rights Divisions should be responsible for approving or denying all ADA accommodation requests with oversight by independent watchdogs with authority and transparency. JAN should be integral to this process so all parties are aware of all possible accommodations.

Grants and tax breaks could perhaps be available for each disabled person accommodated. Thorough, impartial investigations are needed with reasonably rapid responses.

This will save SSDI (Social Security Disability Insurance) and Medicare money, as disabled persons who can still work will do so with reasonable accommodations. Persons with disabilities are often unemployed at rates of 18% higher than the general population. This is not because all disabled persons cannot work; it is because employers do not comply with the ADA.

Those not accommodated under the ADA for their temporary or permanent disabilities should get the very same Long-Term Disability (LTD) policies as most high-paid executives have. All employees in the US should have same level of no-cost or affordable STD (Short-Term Disability) and LTD benefits. This will also save SSDI money when people truly are unable to work. It makes no sense that those who are paid the least and perform the most dangerous work generally do not have any STD or LTD policies available to them at work. Companies and industries with high injury-rates should be required to offer LTD policies to employees at no cost.

This will save taxpayer money in that public assistance, housing subsidies, food stamps, and SSDI programs will be less utilized.

Executives and companies who have a record of violating the ADA should be fined — unless they were directed to violate these laws by their bosses under threat of being fired (which happens to many Human Resoruces employees). There need to be hotlines for HR personnel to call to report if they are being forced to violate these laws. Whistleblowers need solid protection. As of now, this protection does not exist.

As of now, all taxpayers are paying an enormous price because workplaces easily get away with wrongfully terminating employees who have made legitimate complaints of harassment, retaliation, or unlawful discrimination. 

Denise A Romano is the author of The HR Toolkit: An Indispensable Resource for Being a Credible Activist, (McGraw Hill), which provides sample memos for employees, HR personnel, and managers to use in stressful workplace situations. All of the memos in The HR Toolkit: An Indispensable Resource for Being a Credible Activist can be found for free on this blog. Denise A. Romano has an MA in Organizational Psychology and an EdM in Counseling Psychology both from Columbia University. 

Copyright Denise A. Romano – All Rights Reserved 2008