The U.S. Epidemic of Workplace Dysfunction Resulting in Unlawful Employer Practices

by Denise A Romano

There is an epidemic of violations of EEO, public safety, fraud, and corruption laws that are directly related to labor law violations in government entities and US corporations. Despite this epidemic – Ethics Commissions, AGs, and IGs are 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.

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

There is extremely insufficient protection for employees who use appropriate channels to report noncompliance in both government and corporate workplaces. This lack of protection also applies to HR professionals – who often learn that those with authority over them 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 EEOC, state divisions of human rights, AGs, IGs, and Ethics Commissions – and often find themselves unlawfully retaliated against 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 harmed from having done so), or try to influence their leadership. 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 labor and other laws to protect others who are violators or to continue their very own non-compliant behavior, the HR employee will get nowhere and will probably experience unlawful retaliation and/or be fired.

Currently, legal compliance with US labor laws is essentially optional for corporate and government workplaces because most of these laws have no teeth, and the process of resolution almost always results in legally confidential settlement negotiations, workplaces admitting no wrongdoing, complainants being fired from their jobs, violators keeping their jobs, and no official investigations (or workplace changes) whatsoever. Only employees who can afford 6-figure lengthy legal battles have a chance of recourse – and employers know this (whether they are government or private).

Most lawyers will not take cases on contingency, even if complaining employees can prove employer noncompliance with labor and other laws. When there is rare justice, it comes years later – often after unlawful termination and great damage to 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, the dismissal of the complaint with government authorities so there is never an official or public investigation, and the continued employment of those guilty of serial noncompliance and other violations of law, which remain unremediated.

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 laws. GCs 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 is fraudulent misuse of taxpayer money.

These problems are epidemic and do require deterrence in the form of large fines, improved processes and REAL assistance for complaining employees, and guaranteed sound impartial investigations into unlawful practices – even when there are settlements with complaining employees. Gag orders need to be made unlawful, regardless of settlements with employees.

Every one of us knows someone who has experienced a job from hell, a manager from hell, or a company from hell. Nearly every one of us has also experienced one of these personally. What makes workplaces hellish? Harassment, discrimination, retaliation for making legitimate complaints, safety violations, retaliation for complaining about safety issues, a failure and/or refusal to conduct sound / unbiased investigations of employee complaints, cronyism, nepotism, inconsistent applicaiton of policies, union-busting, ethics violations, fraud, and many other behaviors 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. There are ways to complain about labor law violations so that you are as protected as you can be, but there are no guarantees; you may be unlawfully retaliated against. You may lose your job. This 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 extend to and impact 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 considered UNLAWFUL RETALIATION, but that doesn’t mean employees can effectively address these issues while sufficiently protecting themselves.

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

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 that 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 miss deadlines, or they can’t afford lawyers. For most that are reported, there are gag orders and small settlements, and external agencies charged with investigating are overwhelmed and underfunded.

Educate yourself and your co-workers about how to write memos and create the necessary paper trail that is needed to show that you’ve tried to diplomatically, professionally, and clearly address the issues that exist in your company. Write to your elected officials and to journalists who will take this epidemic seriously. Tell them your stories. Feel free to include a link to this post.

Denise A Romano is the author of The HR Toolkit: An Indispensable Resource for Being a Credible Activist, 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.

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