A big hunk of what we do in HR is mitigate risk. It seems one of our favorite sayings is: “no, you can’t do that unless you want to get sued.” Which is much like asking your kid if they want to sit in time out. And just like the 5-year old who is acting silly, I have yet to have a manager respond with “Yeah, sure. That’s cool. I don’t mind if we get sued.” Of course that doesn’t stop them from blaming HR all the same.
Of course there’s no guarantee that you are going to get sued, just as there is no guarantee that you won’t. Sure, some things carry a higher likelihood than others but at the end of the day, where effort is required (as in effort to actually file a complaint) there is always the possibility that the offended party will simply not move forward. Sometimes it is just easier to find another job, sometimes they find out that their likely payout doesn’t look like the winning lottery ticket they thought it would, or sometimes they decide it isn’t that big of a deal after all. And sometimes people are just lazy. You can quote me on that – there are lazy people in the world. You heard it here first.
So why do us HR Geeks hold the threat of lawsuit so high? I believe it is because, in our minds at least, it is a big part of of our job – managing risk. The problem is we miss the other risk: the risk of not taking a risk in the first place. As a society we celebrate risk takers. The entrepreneurs who go out and take a chance on an idea that may or may not work. We hold failures up as examples to be followed. “If you aren’t failing, you aren’t trying hard enough!” we say, but when faced with a tough scenario with a less than ideal employee, we often would rather put a chokehold on the business by keeping a sub-par employee that the manager hasn’t properly documented than looking for ways to say yes and then, as we like to say in HR: “promote them to customer.”
Now before you go off and shoot the lawyers the finger, citing Jim the HR Guy and his Straight outta Texas blog, remember that not all risk is created equally. Wanting to fire a 30-something white male with nothing in their file might be different from wanting to fire a 50-something disabled minority female who has just returned from FMLA, who has nothing in her file, and complained about her supervisor making lewd comments a couple of months ago. You still need to talk, and listen, to your HR Geek.
Now, one final thought before I go: another risk to the organization may very well be the manager who is not doing what he or she needs to do when it comes to coaching and documenting his or her employees. If they are loose with developing, documenting, and coaching their employees – how much of a risk to they pose to your operations?