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Beware of Human Resources

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Many employees believe that their Human Resources Department is there to help them and protect them. This may actually be true for the fairest, most progressive employers who follow the best employment practices possible. Unfortunately, the sad truth is that most Human Resources Departments exist to protect the employer against claims from the employee.

Have you ever complained to Human Resources and found that they tried to minimize your complaint, or told you that your boss was probably joking, or suggested that you should have better and more open communications with the person who was mistreating you? This can often discourage employees from complaining about workplace injustices and help the employer to insulate itself from later complaints in court.

Have you ever made a strong complaint in writing only to be later told by Human Resources that it investigated and concluded that there was no “corroboration” of your side of the story? Sometimes Human Resources seems to suggest that you are crazy because you are the only one who’s willing to stick up and say that you are being seriously mistreated. Again, this cleverly serves to minimize your complaints and maximize the employer’s defenses.

While there are very few laws that specifically target Human Resources Departments, the employer has a general duty to perform a reasonable investigation of any complaint of wrongdoing, including interviewing the employee who complained as well as key witnesses who perpetrated or witnessed the wrongdoing. The employer also needs to tell you the outcome of the investigation, although it will probably not give you as many details as you would like. An experienced employment attorney will be able to tell if the employer has met its duties and whether or not you have a good claim.

Arbitration Agreements

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Employers often require job applicants and employees to sign arbitration agreements preventing employees from bringing employment­related claims into courts and in front of juries. Instead, in agreements frequently favoring the employer, employees are forced to bring their claims before a single supposedly neutral arbitrator. In some cases, the arbitrator’s ruling is literally “arbitrary,” because arbitrators can often disregard the law when making their rulings. Arbitrators often decide who wins and who loses based only on what the arbitrator thinks or feels about the case, the attorneys, the parties, the witnesses or the testimony. There is usually very little chance of effectively appealing an arbitrator’s ruling.

The good news for employees is that sometimes employers and their attorneys go too far in writing up unfairly one­sided provisions in arbitration agreements. Courts may strike down such agreements because they are “unconscionable” or shock the court’s conscience for being too unbalanced. For example, arbitration agreements might say that both employers and employees have to split the arbitrator’s fees, which can add up to thousands of dollars a day. Other arbitration agreements provide that an employee who wins the arbitration cannot recover attorney’s fees even when a law like the California Fair Employment and Housing Act requires that the winning employee should get attorney’s fees.

Still other arbitration agreements provide that all employees’ claims must be diverted to arbitration while many typical employers’ claims, such as injunctions concerning trade secrets, can be brought in court. Some agreements go so far as to say that the employer always gets to pick the arbitrator. Even if you have signed an arbitration agreement, you should not hesitate to consult with an experienced employment attorney to see if grounds exist for overturning the agreement and keeping your claims in court. And even if you are forced to go to arbitration, a good attorney can still achieve an excellent result for you either through settlement or winning the arbitration hearing for you.