Try to Use Your Employer’s Policies and Procedure Against the Company

If you are a target at work, one of the things you need to do is to take a good hard look at your personnel manual. I don’t mean skim the manual. I mean read it. Look for anything in the policies and procedures that show that your supervisor, manager, HR or anyone in authority violated or side-stepped the company’s established guidelines.

Think of how you can use the company’s policies and procedures to illustrate and document how your employer was intentionally and blatantly disregarding their own written policies and practices in order to ignore your plight, disregard your requests, silence your complaint, and/or in order to create a hostile and offensive work environment for you as a means of retaliation. Here’s what I suggest you do:

-- Check the personnel manual on a semi-regular basis to see if there are any changes or updates. Your HR department is supposed to announce changes, but they don’t always do so in a timely fashion.

-- Check the sections of the personnel manual that relate to any issues you have and make sure the company is following its own policies and procedures. If decisions are made that seem to contradict the company’s policies and procedures, ask for clarification--in writing. Be clear about the contradiction to policy and ask that the procedures outlined be followed or for a full explanation about why another course of action was taken.

-- Use quotes from the personnel manual when you are emailing HR or executive staff about your complaint. This will let them know you’re familiar with the policies and procedures of the company. It tells them you know how they are supposed to be handling your case. This also lets your company know how serious you are about the issue. This awareness should encourage your employers to follow their own procedures. However, if they deviate from the procedures, they are simply providing you with documentation that is evidence of a potentially deliberate attempt to violate your employee rights and ignore your complaint.

-- If you are confused about something in the personnel manual, ask questions. Some of the information may be confusing. You have a right to ask for clarification. If you’re uncomfortable asking someone in HR for clarification, speak to someone you trust--who would know the correct answer.

-- Develop a list of any contradictions in the actions taken by your employer against you and the policies they have established. Show how you company has repeatedly gone against policy, if they have done so.

-- Make a copy of the personnel manual, at the very least copy the sections that are relevant to any issues you may have at work. You may need to compare an old version of the manual to an updated version of the manual in order to highlight changes that have been made. Some companies only have their personnel manual available online through an intranet, so you should definitely be certain to maintain a hard copy of relevant policies.

-- Always look at the sections on anti-harassment, anti-discrimination, retaliation, filing an internal complaint, promotion criteria, performance review guidelines, and addressing performance issues. These are some of the likely sections that will be relevant; especially if your company is setting you up for tangible employment actions (e.g., misrepresenting promotion criteria in order to pretend you don’t currently qualify for a promotion) or setting you up for disciplinary action, up to and including termination.

Here’s something to remember about written policies as you read through your personnel manual. The Equal Employment Opportunity Commission (EEOC) states:

“…there are no safe harbors for employers based on the written content of policies and procedures. Even the best policy and complaint procedure won’t alone satisfy the burden of proving reasonable care…if the employer failed to implement its process effectively.”

In other words, if your employer wasn’t taking the necessary steps to ensure that its anti-harassment polices were properly enforced, your employer can wave a hard copy of their anti-harassment policy all day and all night and it won’t do them any good. Simply having a written anti-harassment policy won’t protect them from allegations of harassment nor will it prove that your employer has not violated Federal law.

More on Mediation

One of the strongest defenses an employer can use is to state and then prove that it undertook reasonable care to prevent and promptly correct harassment in the workplace. In order to do this an employer is required to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.

As stated previously on this blog, simply having anti-harassment or other written policies is not good enough because there are no "safe harbors" for employers based on the written content of policies and procedures. Written policies only hold weight if the employer has implemented those policies effectively (e.g., by conducting a fair, thorough, and impartial investigation).

Just as written policies are not enough, an employer offering a complaining employee mediation/arbitration is also insufficient for an employer to prove that it exercised reasonable care. Let me write that again: A union grievance and arbitration system does not fulfill the obligation of exercising reasonable care.

Decision making under such a system addresses the collective interests of bargaining unit members, while decision making under an internal harassment complaint process should focus on the individual employee's rights under the employer's anti-harassment policy.

Again, an arbitration, mediation, or other alternative dispute resolution process does not fulfill the employer's duty of due care. The employer cannot dismiss its responsibility to investigate complaints of harassment and undertake corrective measures by providing employees with a dispute resolution process.

Source: http://www.eeoc.gov/policy/docs/harassment.html#VC

Try to Weaken or Destroy Your Employer's Credibility!

One of the tactics you can use to defeat the lies and false accusations of an employer is to attack their credibility—the same as your employer will attack yours!

There are four basic components for looking into who is or isn’t credible: inherent plausibility, corroboration, motive to falsify, and past history. These are the same components that your employer will try to use to show that you—and not they—lack the credibility to be taken seriously.

Here are some of the questions you should ask yourself regarding the four basic components. These components are also helpful in shaping your overall arguments and positions regarding your complaint and any actions taken by your employer.

Inherent plausibility

--Are your employer’s arguments and positions believable at face value? Why or why not?

--Do their statements and evidence (real or fabricated) make sense? Why or why not?

--Are the actions of your employer justified/appropriate based on allegations or has your employer overreached or overreacted? Explain your position in detail.

--Do the actions of your employer adhere with written policies and procedures or are there violations? For instance, does written policy state/suggest that you should have first been placed on oral warning, but your employer jumped 3 phases and suspended you? Or, was your complaint automatically supposed to be internally investigated (based on your complaint), but your employer did not look into the facts/blatantly ignored your complaint? Provide specifics, provide copies of written policies and procedures, and explain how policies and procedures were violated.

When it comes to inherent plausibility, your goal is to shoot holes in every one of your employer’s arguments and positions. You should be thinking of cross examinations at a trial, when the defense is trying to shut down and destroy prosecution witnesses. Attack! Attack! Attack!

Motive to Falsify

--Does your employer have a reason to lie?

If so, show how your employer's cover story is simply designed as a pretext to hide their real motive--discrimination, harassment, etc. Use your employer's arguments against them to expose contradictions, violations of policy, etc. Use circumstantial or direct evidence to show the false case that was built by your employer.

--Do your employer's witnesses have a reason to lie?

I’m sure you’ve heard the expression, ‘If you think they’re out to get you, they probably are?”

Well, I’m aware of a case of race-based retaliation, where an employer tried to cover up activities against a Black manager by essentially bribing the Black staff in her department to make statements against her or to pretend they did not know what was going on within the department.

Suddenly, there was a market review conducted of salaries within the department and all of these underpaid Black employees received increases. Additionally, Black employees that were willing to sign false statements against the manager were also given a separate salary increase. There was suddenly a performance award given out with a $1,000 bonus. Coincidentally, a Black person in the manager’s department won the award. The award was touted as being a new annual award, but the award was NEVER given out again!

In my case, my two main witnesses received harassing treatment and were calling me to tell me about sudden performance issues they were being alleged to have. They both felt that they were being told to shut up about what they witnessed and heard being said to me.

These are the things you should try to expose because they show people’s motive to lie on you. Some people do not need money to lie. They will lie simply to win favor with your employer and they will HOPE that lying provides them a benefit somewhere along the line. These types of people may feel lying just amounts to office politics and smartly playing the corporate game, so they will take down anyone that may present them with a problem and they will do whatever it takes to show they are a team player.

Some people have a motivation to lie in order to protect someone in the workplace that is highly valued, that they have a close relationship with, etc. You can help prove motivation by showing the links between staff, managers, important business deals, etc.

Corroboration

--Is there witness testimony?

--Is there physical evidence?

You need to create and maintain a list of witnesses that can back up your story of workplace events. If employees resign, that have witnessed your mistreatment, get their contact information or—at the very least—snoop around and find out what company they’ve gone to work for. You can always look them up later.

If possible, get your witnesses to write statements about what they’ve seen. Ask them to get the statements notarized. Someone close to you may be willing to do this! If you think someone would be hesitant to provide you a statement or even to write down what happened in an email, trap them. Yes, I hate to go there, but sometimes you have to trick people into telling the truth. Just see if you can get the person to engage in an email conversation with you about the incident. You can be like, “Can you believe she called me a ------ ?” And, keep the conversation going as long as possible to show that you were called an offensive name, as per this example, and that someone else heard the slur.

As far as physical evidence, document everything, save all hard copies of important and relevant paperwork (e.g., administrative forms, timesheets, etc.), forward important email, memos, etc. to your personal internet account, and if there has been physical violence—take pictures. If there has been physical violence, you should also call the police and make a report. You can also secretly tape record conversations and meetings. Even if it’s not admissible in court, you can use it to convince an investigator, lawyer, etc. to understand that your case is with merit and should be investigated.

Past Record

--Does your employer have a history of similar behavior and allegations?

You saw how they did Michael Jackson at his trial. Right or wrong, when there is an accusation, there is also an attempt to show a pattern of bad behavior. If you are under attack by your employer, you already know what I am talking about. In my case, one false allegation led to another and another. Before you knew it, my employer was trolling through my previous performance evaluations from years before and they were taking a sentence or two from the section about improving performance. They added this information to my current review and then wrote, in my latest review, that I was habitually and continually having these problems. This was a lie, but they were smart. They needed to make me a problem employee. They could only do that by pretending that I was consistently engaged in negative behavior. They twisted feedback on minor improvements that any employee could make and made them into a federal case that allegedly warranted me being targeted for HR attention.

This is what employers do, when they’ve committed to a course of action against an employee (e.g., setting a person up for termination, demotion, etc.).

You have to take the same tactic and show how your employer has a past history of engaging in mistreatment, misconduct, not investigating allegations of race-based abuses, or how they’ve previously engaged in discrimination, harassment, retaliation, etc. Ask questions and snoop around. One of your coworkers may have information you can use. Or, you may already know about how someone was dogged out by your employer, but you were uninvolved in the incident. Write down everything you know about that case and any others that are similar or show the same corporate dysfunctions you believe to be a problem in your case. Show the patterns!

You've Got to Prove Your Case!

When you are contemplating filing a race-based complaint, internally or externally, think about how you will overcome the lies that your employer probably has already told about you.

An employer can make up any excuse to justify employment actions against an employee. These excuses don’t have to be proven unless the employee complains about the action. So, the employer can go ahead and accuse you of fabricated performance deficiencies and use those false allegations to deny you a promotion, for example. Unless you say, “I’m being denied advancement for reasons that are without merit…,” no one will ever examine the charges against you. Human Resources is not going to step in and say, “Wait a minute. That’s not the [insert your name] that I know. What’s going on?”

Unless you work for an extremely small company, HR staff may know your name, they probably remember what department you’re assigned to, they may remember your title, but they don’t know your specific contributions to the company—during any given day, month or year. So, don’t think someone in HR will get suspicious, if you are suddenly accused of very negative behavior at work, which is completely out of character for you.

They don’t know you like that and, half the time, HR staff isn’t getting into that level of detail on any employee, unless they are asked to give input on an employment situation—usually at manager’s/supervisor’s, etc. request. When I worked in HR, not one HR staff person read the performance evaluations that were filtered through our office for filing. We simply got a copy, ensured that the employee signed that they read and understood the review, ensured that the supervisor signed the review, and placed the review in the employee’s personnel file. That was it! We never read it to see if anything was fishy or inconsistent or contradictory or just plain unacceptable at face value.

So, it’s up to you to challenge false allegations that a coworker or supervisor, etc. is making about you that are impacting your career or work environment in a negative manner.

If you decide to challenge a false claim, the first thing you need to consider is how you are going to refute the lies. In other words, based on the example, how do you prove that you don’t have performance deficiencies? Well, you could:

--Show copies of previous performance evaluations that contradict what was said;
--Produce copies of emails that contradict new negative allegations against you; and
--Show thank you cards form clients and coworkers; etc.

I know, I’ve gone over some of this before, but we—as a people—really need to get these things drilled into our heads! What else can you do?

Go to the personnel manual. Try to show that your supervisor, employer, etc. violated the company’s own written policies and procedures. That is powerful! Your employer is then forced to justify why they did not follow the pre-existing guidelines they established. This goes a long way in showing an agenda against an employee and shows clear intent, not an accident, in executing an employment action!!

If you are placed on probation, for example, based on false allegations, go to the personnel manual. What does the manual say about handling management issues? If the manual says that an employee should first be given 1) an oral warning; 2) a written warning; 3) be placed on probation, your employer would have to answer why they jumped to step #3 of their own process. They have to justify why what you did was so egregious they violated their own policy, especially if you don’t have a history of having any performance issues.

Other things you could do include:

--Getting witness corroboration to support your version of events. Ask coworkers to write statements for you or to speak to HR reps on your behalf. Getting support in writing is best!

--Tape recording meetings to get verbal threats, racial epithets, etc. on tape.

--Keeping a log of all race-based incidents, incidents of harassment, etc. with specifics details on who did what and when!

--Requesting an internal investigation to place the burden on the company to stop or reverse the fraudulent employment action. Get the HR department on record, should you need to go to a lawyer or outside investigatory agency!

--Keep a log of all the lies your employer tells and write specific quotes (include the date and time of conversations, etc.). Put yourself in a position to have fantastic recall of who said what and when!

Don’t just hand over your career to workplace racists! Fight for what you have earned. It’s a small world. You never know who you will be working with again in the future, especially if you work in a targeted industry. A bad and falsely earned reputation can haunt you for years!

Tips for Fighting False Allegations About Your Job Performance

When companies, managers, etc. decide to target an employee, particularly one with a positive reputation and strong work ethic, one of the first things they often do is to begin making sudden and extremely strong criticisms of that person’s job performance. So, a person that is respected and valued by their colleagues, may suddenly find their supervisor claiming they have a bad reputation around the company, that no one wants to work with them, and that their job performance has become a significant issue and liability for the company.

I’ve had this tactic used against me and have seen it used against other Black employees. In one case, a Black male was complaining about discrimination and sexual harassment, in another case, a Black manager was the victim of retaliation for complaining about racially insensitive remarks made by a White manager, and, in my case, I participated (truthfully) in both internal and external investigations about these race-related issues. So, retaliation—among other things—was the company’s response to me, when I came up for a promised promotion.

I’d like to give you some quick tips on dealing with false attempts to slander your reputation, regarding your work ethic. These things worked well for me.

--Quote from performance evaluations. Use all relevant comments about your job performance that show you have a pattern of successfully and professionally performing your duties. Don’t forget to pull out quotes that speak to your personality/temperament at work. For instance, you could quote from a recent performance review where you are credited with being patient and flexible, which contradicts a sudden and false accusation that you are rigid and demanding.

--Print up copies of emails or cards that speak to your job performance, especially kudos from clients. This will also demonstrate you have a pattern of successfully and professionally performing your duties and that staff are aware of your positive contributions to your projects/assignments.

--Get signed statements from coworkers that show you are successfully performing your duties. If possible, get your coworkers to have the statements notarized.

--Print up requests for you to work with other staff – why would you be invited onto projects if it were known that you were underperforming?

--Ask specific questions about all blanket statements about your job performance. For instance, do not let someone accuse you of being rude without asking for examples and situations where you’ve supposedly shown this behavior.

--If someone is suggesting you have a pattern of exhibiting poor behavior or poor performance, ask (in writing) why this issue is just being brought to your attention and why you were not offered any suggestions for improving your performance. Remember, if you are not told of performance issues, and are, therefore, led to believe that there are no issues, you can’t accurately gauge your performance and live up to the expectations of your position. So, the onus for the alleged issue being a so-called continuing problem is on your supervisor/manager because they did not inform you of any alleged problems at work.