On this episode, attorney Josh Van Kampen sits down with attorney Bartina Edwards of the Law Office of Bartina Edwards to explore how and when an employee should make a report to human resources.
First, we hear Attorney Edwards discussing bias in the workplace and what a person should and should not do if they notice bias. (2:30) She then talks about using the power of three to navigate issues at work. (8:40) Often, situations arise that may best addressed through the use of an attorney before involving human resources. Attorney Edwards addresses why why it is important to talk with an attorney that can give you a strategy before a problem arises. (11:48)
Josh and Attorney Edwards spend a few minutes discussing common mistakes employees make when dealing with coworkers, supervisors, and human resources. (14:30) Josh then identifies why it is important to be explicit when talking about discrimination (not fairness!) once it becomes clear your employer is beginning to take formal steps against you. (18:50) The podcast concludes with a discussion about different protected groups and why it is essential to act quickly when you are discriminated against at work. (22:50)
To learn more about Attorney Bartina Edwards, visit her website at http://www.blelaw.com or email her at firstname.lastname@example.org. You can learn more about her workplace consulting company, CP3 Paradigm, by visiting the website cp3paradigm.com.
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The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, This podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers. This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com, or better yet, call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.
Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but unlike the company, you’ve not been drilled on how to wield them. You’re playing catch up. There are pitfalls to avoid, and countermeasures to deploy, that may save your job or put you in the best position to negotiate a favorable settlement.
Intro: 00:29 Minutes matter. Your words and actions matter even more. The Walking Papers Podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.
Robert Ingalls: 00:45 Welcome back to another episode of the Walking Papers Podcast. I am your host, Robert Ingalls, and today, I am here with Attorney Josh Van Kampen of Van Kampen Law and Attorney Bartina Edwards of The Law Office of Bartina Edwards. Bartina, Josh, how is everyone today?
Robert Ingalls: 01:05 All right. Today, the title of our episode is Eloquently You’ve Been Human Resourced: Knowing How and When to Complain to Human Resources. Bartina is going to walk us through some of this today. Bartina, we were talking about this off the mic a little bit, but frequently, there are employees that while they don’t think they’re necessarily being discriminated against at the moment, they have this subtle feeling that maybe they’re not being treated properly, that there may be some bias, and they don’t necessarily know if it’s worth talking to HR yet or saying anything, and that can be a scary place to be because I don’t think you know what to do at all. What do you say about that?
Bartina Edwards: 01:49 Well, let me give you a little history first, and then I’ll specifically address that. I come out of corporate, and so my personal experience drives a lot of what I do in my vision, and my experience focuses … It makes me unique in dealing with employee and employer relationships, so I had sort of this corporate piece, this entrepreneurial piece, and then practicing law. I see it from both sides, but I began to grow tired of what became symptomatic, and started to feel like I was pulling people out of the river, instead of stopping them from falling in, and so a vision was created to help people navigate the workspace. In doing that, I’m also a co-founder of another company, but focusing just on that question through the law practice, what could I do that would actually help folks to understand that they could actually be protected and protect themselves by navigating this workplace in a way that was meaningful for them, because it can be very fearful, right?
Bartina Edwards: 02:45 A lot of times, they found themselves in these environments that were not inclusive, but they didn’t know what it meant to be inclusive because they’ve already been in this environment that lend itself to a retaliatory culture, or a competitive culture, and so sometimes management, sometimes managers, sometimes peers would put them in situations that felt very uncomfortable, and they were not able to identify with their protected group. We say that a lot in the legal sense protected group, but we’re talking about everything from being left-handed, to race, gender, the things that we specifically think of that are legally actionable, and so you have these biases that then begin to become created in the workplace. Sometimes people are conscious of them, and sometimes they’re not, but implicit bias, we all have them, and it’s pretty much where you take the characteristics or personal attributes of a person, and then you start to attribute some sort of feeling or action towards it. In doing so, you then react or act in a certain way, and it starts to make people feel in ways that are not comfortable. A good example that I use a lot is one person may say, “I love people who dress in red.”
Bartina Edwards: 04:03 “I have no bias against folks who dress in red. I love people. I treat them fairly,” but you see a person approaching you down the street or down the hallway, and they’re dressed in red, and you casually move yourself to the other side of the street, not even realizing that you’re doing that, because your bias really is against folks who dress in red, and so you have to then become consciously aware of that. What does a person do when they start to feel like they’re experiencing some biases? The first thing is to make sure that you’ve put your biases to the side, and so you want to not create a narrative, because we each come with our own narratives, so you don’t want to make assumptions.
Bartina Edwards: 04:43 If someone gives your peer a day off, but you don’t get a day off, you don’t want to automatically assume they’re getting that day off because of some reason, because what happens then is you create a narrative based on that reason, and then it starts to position you in a way that you start to act in a certain way, and then someone reacts against you, and it sort of starts this chain. Well, managers do the same thing, and I’m not here to say that there’s not real and intentional discrimination in the workplace because there is. A number of companies will give lip service to having people-centered cultures, promoting diversity and inclusion programs, or extra family benefits, and all these opportunities, but the real world is there are still issues in the workplace. The EEOC receive more than 90,000 complaints of discrimination. There are all these reported cases.
Bartina Edwards: 05:36 Stress is the number one killer in the workplace. It surpasses heart conditions, high blood pressure, diabetes, all wrapped into one, and they are real situations where people are feeling beyond what we call stressed in the workplace. When you have this sense of retaliation and you are feeling as if everyone is out to get you, and your manager is targeting you in ways that show up where you now not given certain assignments, or you are placed in a different office, or you’re not allowed to work remotely but your peers are, you get all of your work completed, and your manager is now giving you more work because you happen to be efficient and effective in what you do. Well, that starts this process internally in a lot of folks of an emotional syndrome that is stressful, and you have PTSD, you have emotional distress. You have folks who have taken medication just to show up to work.
Bartina Edwards: 06:33 The way that is translated on the employer side is, “Now, you have a lot of leave.” Now, that is having a profit and loss impact to the business, so from a practical standpoint, it makes sense to do things that will make your employees better employees, and not feel the stress that they’re feeling that ends up in bad communication, which can ultimately lead to lawsuits. Number one, you don’t want to make assumptions. You want to put your narrative to the side. You want to focus on things that are actionable, that you can actually change.
Bartina Edwards: 07:08 Is there an opportunity for you to transfer from underneath that manager? Is there an opportunity to communicate with the manager? Do you have a mentor that you can confide in that is not HR? Human resources, while they may have good intentions, they’re not the true ombudsman that we have seen in the past when HR was first developed to be that person for the employee to go to. That has long since been removed from our landscape and our workspaces, so you have to treat that in a strategic way.
Bartina Edwards: 07:42 You want to start building your strategy. You want to communicate. You want to remember to breathe throughout your day, and so you want to start to connect with your manager. You want to communicate with your manager if your manager is part of the problem. You want to get your manager to a place where they see you as a human being, and not as the person in the red dress, because then, you can remove them from this place of privilege because they can then start to connect with you in a way in which it starts to have vulnerability, and you start to see some humanity in the person.
Bartina Edwards: 08:18 When that does not happen, then you have to create your strategy. I call this the power of three, which is where my vision started with CP3 Paradigm, but it’s connect, create and collaborate with people, passion and purpose. The power of three is you want to first connect in that way, and if you can’t, then you want to create an opportunity for yourself, and that may be where you reach out to a lawyer, well before you’re receiving disciplinary actions or being close to termination, or even termination. My practice has carved out a niche of navigating the workspace where we help people create strategies. That will be the ideal time to get some assistance from an attorney, especially one that focuses on strategy, so you’re sort of a business coach, you’re a lawyer, and you’re also an advisor, right?
Bartina Edwards: 09:09 You’re leveraging the law to give you a strategy, whether you’re going to use that strategy at that moment in time or whether you’re going to use it as part of your exit strategy, and that way, you can exit on your terms and conditions, but you first have gone through a process where you are believing you are in the best space you can be at that point in time, but you’re not being valued, you’re not being honored, they’re not engaging, therefore, you’re not engaged. They’re not honoring your voice. Once you start to feel like your voice is not being recognized, you’re not in that space, then you’re not in an inclusive workspace, so you just have to be honest about that. It doesn’t mean you have to leave. There are some things you can do to change, as we talk about.
Bartina Edwards: 09:50 There’s some things you can change, but those things that you cannot change are those things that then you start to say, “You know, I’m starting to feel this. I’m starting to recognize that.” It’s at that point you want to start documenting. Once you document, if someone sends you an email, keep the email. Now, you don’t want to take things that are not yours once you’ve left the company, but long as you are an employee in that company, you have rights to those things that you normally would have rights to as an employee in the company.
Bartina Edwards: 10:19 That’s your handbook. It might be kudos that you receive. It might be comments that your peers are making, that your customers or your vendors are making, that your employer or your manager, those things that are making. Look at your timing. When are certain things happening, because you generally want to look within a six-month period, right?
Bartina Edwards: 10:40 That is because if you have to file a grievance or you have to utilize an agency, once you’ve placed yourself in a protected status, you may only have 180 days by which to take some action if you need to do that. Remember, having the legal leverage sometimes can give you the actionable change that you’re looking for, so part of navigating the workspace has taken this whole picture and saying, “Where do you want to be? What are your objectives? What are you feeling? What do you want to have changed? How can we change that?”
Bartina Edwards: 11:13 We empower you in a way that gives you solutions that will change your life, and that is the greatest success for us, so we’re helping you to navigate that in certain ways. We can be more specific about that, but that’s kind of navigating the workspace from when you start to feel uncomfortable, up until the point where you may need to actually leave.
Robert Ingalls: 11:31 Yeah. It sounds like it’s a good idea to start discussing your case with a lawyer long before there actually is a case. Do you see frequently clients coming to you before they’ve talked to human resources or before they talk to their manager when they’re just starting to have these feelings?
Bartina Edwards: 11:48 Yes, and that’s what I meant by creating a niche. About two years ago, just by happenstance, we started to work with some folks after doing a workshop, and those folks were internal to a particular company, and they all had a similar story. By working with a couple of those folks early on, word got out that we were a good firm to work with, to help navigate the workspace. There are situations, I can think of one in particular that’s very recent. I worked with this particular client for almost two years while she was still inside the workplace.
Bartina Edwards: 12:25 We helped to script her, we helped to guide her, we helped to navigate her throughout that process, until she was ready to exit, and when she exited, she did so on her terms and conditions. That may be that you ultimately are looking for a different position in the company. It may be that you want to transfer from outside of the manager. It may be that you’re trying to get rid of the manager. It may be that you actually leave the company. I will say however, do not resign from a company.
Bartina Edwards: 12:54 Do not quit without speaking with an attorney, because oftentimes that can impact your legal actions later. In North Carolina, we do not have what we call a claim for constructive discharge. That would be successful, so you do want to talk with an attorney prior to. When you first start feeling uncomfortable or when you start to see things happening around you, really, that’s the time to seek counsel, but one that’s not focused solely on litigation, but one that is solution-based and understands the corporate world, the creative connection that needs to happen, and all those steps that lead you to success. There’s an old saying that when you talk to a surgeon, well, he’s going to talk about cutting, and that’s what happens.
Bartina Edwards: 13:38 When you talk to a radiologist, then you’re going to have a whole lot of X-rays, so you want to know who you’re going to for what, and then we work together. For example, Josh and I work together on cases in that way. Well, I may do it front end, but when that person is ready to litigate, and our caseload may not focus on that or we may not be interested in litigating, then we can turn that over, and it’s a very nice transition, but there are ways in which you can work together, and I found that to be very helpful also. It’s knowing your resources and helping people to know where those resources exist.
Robert Ingalls: 14:10 Now, one of the best things I think that people can get is information about the mistakes they may make in the future before they make them. What kind of mistakes have you seen people make and that you wish, the information you wished they’d had before they had made those mistakes with human resources or their managers?
Bartina Edwards: 14:29 I think the first thing is lack of communication. I can’t stress that enough. I do think you need to, within reason, approach the person who you believe to be the accused, for lack of a better way of putting it, but when that does not work or when that is uncomfortable, then you do want to go to the next level, and you do want to file a formal complaint internal to the company. I cannot stress that enough. Oftentimes, people will shuffle around that.
Bartina Edwards: 14:59 When I say people, let’s say individual employees. They will use words like, “I’m being treated unfairly,” or,” I’m being harassed,” or, “Doesn’t feel good,” or they’ll say in the same sentence because they’re trying to keep their job, and they’ll say, “You know, I really felt like you treating me unfairly, but I really enjoy working here,” or, “You’re really a great manager.” No. We don’t want to conflate the two.
Bartina Edwards: 15:26 Exactly, so you want to be specific that, “I feel like I’m being discriminated against because,” “I feel like you treated me unfairly when you treated my peers substantially different than you treated me, and that we’re in similar positions. You, I believe are not an [Igor 00:00:15:46], but you are not the manager that is representing me in a way that is fair based on my work performance, based on my behaviors.” When you receive a disciplinary action, you want to also respond to it. You don’t want to accept it, and you don’t have to sign it. There is a myth that you have to sign it. Now, I will tell folks sometimes your manager will say, “You’re going to be deemed to be insubordinate if you don’t sign this.”
Bartina Edwards: 16:15 What you say is, “I signed this because my manager stated that I had to, but I do not agree with it.” Something along those lines. It can be very simple. It doesn’t have to be in legal lease, so you don’t want to sign it. You don’t want to say you agree with it.
Bartina Edwards: 16:31 If there are specifics that you can cite to and you’re not too stressed out in the moment to do so, state that. “These metrics are not correct, or I actually performed on such and such day,” but those are the types of things that you want to make sure that you’re not having missteps, and don’t say too much to HR. File the grievance. File the complaint. Make it factual, and you don’t have to go into a whole lot.
Bartina Edwards: 16:57 What you’re trying to do is establish a complaint. You do want to seek change. You can state what you’d like to have, but you just want to make sure that you’re establishing your point so that from that point forward, if there are any retaliatory actions, that you can show that those actions map back to that point in time where you made this complaint and you made the company aware of it. They cannot now say that they were not aware of it, therefore, they couldn’t cure it or couldn’t correct it. You now have that.
Bartina Edwards: 17:26 There’s something called an affirmative defense. You don’t want to give that to the opponent. I think all in all though, remember that this is about you getting a better opportunity, getting what you want out of it. Don’t make it about them, and then becoming the victim, because that can be very easy to take on, and then it takes you to a mental space that is not healthy, and emotionally, it starts to build up that stress that we start to talk about. I think one thing is something that I remember that one of my mentors shared with me, I mean, it is every opponent is not your enemy.
Bartina Edwards: 18:06 That has been helpful, but I didn’t understand that and really comprehend that until probably the last seven to eight years, because even though I could conceptualize that, I didn’t internalize it in a way that was healthy, especially being a lawyer.
Josh Van Kampen: 18:26 Yeah, and just building on a couple of points that Bartina brought up about kind of when things are subtle, and you have an inkling that your manager may have a bias against you, but it hasn’t escalated into a written warning or a poor evaluation. I do like that approach of the notion, of trying to connect with the manager and educate the manager before you go and escalate to human resources. Once it’s apparent that the shoe is going to drop, I mean usually, you can tell if you’re in a build-up to being managed out. It might start with some emails documenting errors that you supposedly made, and into a verbal coaching, or written warning, or a poor evaluation. As long as the targeting that’s happening is subtle, I think it’s okay to be subtle, but once it escalates into these kind of more formal phases, that’s when we’re talking about in where Bartina brought up the excellent point about needing to be explicit.
Josh Van Kampen: 19:25 You’re not always protected from retaliation for going to human resources. It depends on what words you use literally, and so if you go to human resources and you articulate the targeting that’s taking place from your manager as being a fairness issue and just on the merits that your manager is not being fair to you, you have no protection under the law for just complaining about unfairness. I mean, the reason for that is that protections from retaliation in the workplace, they emanate from discrimination statutes the first place, so if you’re not complaining to human resources about discrimination, you’re not protected from retaliation because the retaliation provisions are in the discrimination law themselves. That’s why Bartina brings up such a good point, which is that once you do go to human resources, even though everything in your being is going to tell you to be subtle and to walk a tightrope, and do a dance around presenting the problem, all you’re doing is hurting yourself, and so you need to be explicit. I’ve had many times, as I’m sure Bartina has as well, you will have a human resources official who will try to steer you away from doing that.
Josh Van Kampen: 20:46 You may be complaining about your manager and talk about how you’re held to a different standard than your colleagues. Maybe you point out that you’re the only African-American on the team, and he or she may say, “Oh, so you’re just saying you’re being treated unfairly,” or, “You’re not wanting to make a formal discrimination complaint here, are you? I mean, that’s not really necessary, is it?”, and that’s because the human resources people know the law, and so if they can steer you into a fairness conversation, instead of a discrimination conversation, they know that you’re ripe for the picking, so it is really important to use the words. It’s fine to have a verbal meeting with human resources, but then, you need to file or send an email afterwards, documenting and including those words because if it happens, you got to call it out.
Bartina Edwards: 21:38 Exactly. Yeah. I think that it’s counterintuitive, as Josh has stated, but it’s important that you seek counsel before, which is why that timing is so important, because they can help to script you. They can help to talk and prepare you, even before you go into the meeting with HR because generally what happens, even if you go in with the right words, as Josh has stated, they will try and steer you away from that, or afterwards, they will change that entire story, and you’re wondering if you even said what you thought you said, or later on, you’re put into a position where you can’t support what you’ve stated. I think it’s very important that you know, and that’s what I meant by scripting someone.
Bartina Edwards: 22:24 Be very specific about what is happening, but not from a feeling standpoint, from a statutory standpoint. If you think it’s race, than call it race. If you think it’s age, then call it age. If it’s gender or ethnic, racial ethnicity, national origin, disability, whatever it is, those are the types of things that we’re talking about that will make it very clear. As we say, make it clear and write it, and make it plain, so afterwards, it is always important because when you have that meeting with HR, they’re going to pick up the phone.
Bartina Edwards: 22:58 They’re not going to send an email nine times out of 10, so when they pick up the phone and talk with you, or after you’ve had the meeting, you want to follow up with a summary email. it can be very kind, “Thank you very much for meeting me. It’s my understanding that we discussed blah, blah, blah, and I filed a complaint about being discriminated against by my manager when he did so and so. I look forward to hearing back from you.” It’s that kind of thing, but you’re putting some key language and some specific facts in there.
Josh Van Kampen: 23:25 Earlier, Bartina had mentioned the 180-day limitation period, which is applicable to certain laws, most Civil Rights laws, including Title VII of the Civil Rights Act, and the Age Discrimination Act, and the Americans with Disabilities Act all have a 180-day look-back period in which you have to file with this government agency called the Equal Employment Opportunity Commission. Sometimes, an employee or listener may be, “Right, this is happening over a period of time.” They are passed over for this promotion, and then that promotion, or maybe the verbal counseling happened a year ago, and then it escalated to a written warning and an evaluation, and so what you need to keep an eye on is that the longer you wait and see, you’re foregoing the ability to challenge these earlier bad things that are happening. Remember too that complaining to human resources doesn’t satisfy the requirement to file with the EEOC within the 180 days. All the complaint to human resources does is shield you and protection from retaliation.
Josh Van Kampen: 24:30 Oh, in theory, right? At the same time, you still need to file an EEOC charge within 180 days or whatever that, in legal terms, they call it adverse action, but I just say. In other words, something bad happened to you that was material at work, so there is a penalty for waiting too long, and that’s why it’s important, like Bartina was saying pretty early in the process to be speaking with an attorney because sometimes it’s okay to let things wash past the 180-day period, and sometimes you may have a really good challenge on a promotion denial, for example, that looks pretty promising, and maybe you don’t want to let that one go, but you need to talk to a lawyer and figure out when it makes sense to allow things to wash over past that 180 days or when it makes sense to file.
Bartina Edwards: 25:18 Yeah, I would agree with that. They run concurrently, which is why getting good advice early is important, because you hear things like managing out, not a good fit. I mean, you’re trying to work through it, but at the same time, you worked yourself out of an actionable claim, so remember, you want to leverage the law in order to put yourself in the best position.
Bartina Edwards: 25:40 I’ll give you two places, actually. One is email@example.com, or www.blelaw.com, which is the website. I also have cp3paradigm.com, so you can take a look at that if your workplace is in need of some real work.
Outro: 26:08 Congratulations for taking an important initial step in turning the tables at work, but this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com, or better yet, call 704-247-3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.