What are my rights in this workplace dispute?
December 9, 2007 8:58 AM   Subscribe

A bad work situation gets even worse...I need advice about my rights in the workplace.

Things at work have gotten increasing bad over the past view months. 2 of my co-workers and I contacted our HR dept. separately and unbeknownst to each other. HR suggested the 3 of us get together, write up our complaints and go to our boss's boss, who I'll call VP. (Because he's a VP!)

We did as HR suggested, and wrote up 3 pages of issues that we had. Many of these issues are quite serious, such as our boss lying to us to obtain our network logins and passwords, sharing our personal medical information with staff, failing to set policies or follow existing policies, etc. We met with VP after giving him this list and, at his insistence, HR was not present. We did cc the list of complaints to HR.

During the meeting, VP acknowledged that our boss had not followed procedure. Still, all he said was that he would speak to her. When I complained that I thought she had violated our rights, he told me I could file a "formal" complaint with HR. This confused all 3 of us, since we thought that's what we had done.

VP spoke to the boss over a week ago. The immediate result is that the boss canceled our staff holiday party and started asking other staff members if they knew who the "ringleader" was. Certainly nothing got better. Then, on Thursday, VP asked us to a meeting with him and our boss. Again, HR was not invited. The meeting is scheduled for this Friday.

The 3 of us can't see how this meeting can possibly resolve our issues. VP insists that no one is in danger of losing their job and that we just need to sit down together and talk it out. The problem is, without HR involvement, none of this is documented and official.

One of the problems is that we have no staff organization or union, and we don't have an official grievance procedure, so we have no idea how this should go. I guess my question is, can we insist that HR be involved in this meeting? If we resend our list of complaints to HR before the meeting and specifically say "this is a formal complaint" will that be enough to get them involved? Can VP simply say "no, I don't want this to be an HR issue?" which is what he basically said the first time we met with him? Do we have a right to have HR there? We're in MA, if that helps.

posted by Biblio to Work & Money (16 answers total) 3 users marked this as a favorite
I would focus on the HIPAA violation, contact a lawyer.....
posted by HuronBob at 9:26 AM on December 9, 2007 [1 favorite]

HR is there to protect the interests of the company, not you. Your interests and the company's interests may overlap, but I wouldn't count on it. Document everything. One of you can write up your impressions of the meeting right after the meeting. Have the other two sign off on it as agreement of what was discussed, and you have whatever documentation you might need for a later date.

If they don't let your boss go, I would expect some form of continuing retaliation. It's not right. It's not fair. Depending on the context of what was discussed, it's probably be a violation of company rules, and may even be illegal (I'm not a lawyer). However, insisting that a company follow the rules won't always get you everything you want. There's a good chance you'll always been thought of on some level as the troublemaker who rocked the boat. Given that, unless you really want to fight the good fight for the entirety of your stay there, it's probably better for you longterm to find a better situation. So, I'd start looking for a new job as soon as possible.
posted by willnot at 9:36 AM on December 9, 2007

sharing our personal medical information with staff,

The ADA (and perhaps Massachusett's state law and state privacy protections, you'd need to check) requires that medical information obtained by an employer be maintained confidentially. See 42 U.S.C. 12112(c)(4); 29 CFR 1630.14(c).
posted by ClaudiaCenter at 10:01 AM on December 9, 2007

Head of HR for moderately large company here - next step is to resend the list to HR, inform them of the next meeting, and let them know that this is to notify themof a formal complaint against boss, and bosses' boss that you and buds are being retaliated against for going to HR. Use the specific examples listed above and give the impression that a) you're documenting everything, and b) you have a lawyer coaching you.

The context of the "formal complaint" - Boss's boss is thinking of whether or not you are complaining about discrimination or harassment because of status in a protected class, and I didn't see anything above that looks like it, so that's why HR is not getting actively involved at this point. In the US, being a bad manager isn't criminal, just irritating, and your local EEOC office is not likely to take the case unless there is some evidence of protected class discrimination and/or retaliation due to those kinds of complaints.

Willnot is right, though. HR is there to protect the company, and if it's just garden-variety "my boss sucks" they are unlikely to actively intervene. You can bet their working with VP and boss behind the scenes, though, to figure out how to get the situation to go away. Sometimes that does mean getting the employee to go away, and not the manager. Start looking.
posted by pomegranate at 10:01 AM on December 9, 2007

I can't speak to all of your concerns, but I can lend an HR perspective to the situation and address a few bits.

He told me I could file a "formal" complaint with HR. This confused all 3 of us...

Only this VP can explain what he meant by that. I think you should politely request immediate clarification.

This might be a good time to suggest that HR / the company implement a written complaint procedure- point out that gray areas leave the company vulnerable and can make bad situations worse.

"I don't want this to be an HR issue" I've been there. Managers whom I otherwise trust and respect have told employees to keep things from me. 'She'll make a big deal out of it.'

If you aren't worried about backlash from the VP, you could discuss this with HR again. But please don't look to HR to be your "silver bullet" in this or any conflict situation, especially one involving high level management and executives like VP's. We may not have the authority to take on these individuals- and many of us still answer to them.

The fact that the VP has scheduled this meeting on Friday indicates that he wants to resolve these issues. Take that as a positive.

Also take some consolation that by canceling the party, your boss has made himself / herself look bad- retaliatory and petulant. The execs will notice.

Companies with grievance procedures normally have clear policies against retaliation. Conducting a witch-hunt for "ringleaders" and taking revenge on the staff would definitely be prohibited. Again, without a formal policy, you may not have clear recourse. But it should be addressed.

About your complaints: most organizations make it clear that workplace computers, phones, etc. are company property and that employees should have NO expectation of privacy when it comes to these areas. Passwords, logins, email- the company has a right to these.

Your medical information is another story altogether. Confidentiality must be protected and the release of that information is a serious violation. Good luck on Friday!
posted by GuffProof at 10:04 AM on December 9, 2007 [1 favorite]

The Friday meeting is making me a bit nervous. I could be completely wrong but, prepare for a chance that you'll all be let go. Companies prefer to fire on Fridays. That said, definitely follow up on the HIPAA violations.
posted by TorontoSandy at 10:34 AM on December 9, 2007

Boss's boss is thinking of whether or not you are complaining about discrimination or harassment because of status in a protected class, and I didn't see anything above that looks like it, so that's why HR is not getting actively involved at this point.

It seems like you didn't make a stink about the unauthorized use of your network accounts. I think this is fairly clear violation of your privacy rights and not standard policy. IT DOESN'T MATTER THAT SHE IS YOUR BOSS AND YOU WILLINGLY GAVE HER THE INFORMATION. If you can get her to admit that she has been accessing employee accounts during this meeting (she may feel like this is kosher!) then maybe the VP will realize that this manager is toxic and take action.

Repeat: collecting employee password information and using it to access their work accounts is not standard policy and should be a red flag; if not to HR than to the IT department.

Maybe you can talk to someone in IT about whether this is in line with their policies: if nothing else it is a security hazard!

The VP thinks this can all go away, that it's interpersonal issues: you need to convince him or her that there is a serious problem with this manager that is bringing legal hazard to your institution.
posted by geos at 10:36 AM on December 9, 2007

I am not a lawyer and don't know much about law at all. But a quick google found this:

A less obvious example occurs when an employee complains about general working conditions on behalf of others, even if the conditions are not unlawful. Federal labor law prohibits employers from retaliating against employees for engaging in such "concerted activity".

Generally speaking, an employee engages in protected conduct any time he or she exercises an individual right or does something of public importance.

in re: to whistleblowing. (http://www.myemploymentlawyer.com/retaliation-whistleblowing-FAQs.htm#What)

I offer this as an example to show that all the people who will shout "at will!" and "just start looking! you have no rights!" are not 100% correct. You DO have rights beyond the protections most people are aware of (racial discrimination, sexual harassment)

And of course, I may exaggerate slightly when i say everything any HR person anywhere has ever said to be has been a lie. I'm sure one of them has told me the truth at one point in my 10 year working career. I just can't recall it right now.
posted by drjimmy11 at 10:47 AM on December 9, 2007

About your complaints: most organizations make it clear that workplace computers, phones, etc. are company property and that employees should have NO expectation of privacy when it comes to these areas. Passwords, logins, email- the company has a right to these.

I'm not a lawyer, but a manager taking the personal initiative to informally gain access employee accounts and access them is almost certainly a violation of institutional IT policy. This manager is breaking the rules in order to spy on her employees.

also, the poster works at an academic institution which would change the legal framework if it is public I think.
posted by geos at 10:50 AM on December 9, 2007

I've worked defending the government from suits like these. The best thing you can do for yourself is to call a lawyer who specializes in employment law. You probably like your job and just want all of this to go away, but your job is no longer secure. The ship's sinking, and you need to realize this before it hits the ocean floor.

Call a lawyer and tell him what you posted here. If you'd feel more comfortable in the Friday meeting, have him show up and sit in. You need to tell a lawyer.
posted by lockestockbarrel at 10:57 AM on December 9, 2007

About protected classifications -- anyone who works for an employer with 15 or more employees -- not just a person with a disability -- is protected by the ADA's medical confidentiality rules. And, unlike with HIPAA, there's a private right of action, meaning that you and your co-workers could (theoretically) bring a case (if there's 15 or more employees).

Perhaps even more importantly (and I should have mentioned this before), the ADA also prohibits interference and retaliation for asserting rights protected by the ADA. 42 U.S.C. ยง 12203. So to the extent you are terminated for complaining about the medical privacy violations, that would be another legal remedy.

I like the "concerted activity" idea -- very creative.

Here's the link to the Massachusetts Employment Lawyers Association.
posted by ClaudiaCenter at 10:58 AM on December 9, 2007

Response by poster: Just a clarification...boss told us she needed the logins and passwords to give to IT. A few weeks later, I changed my password. The next time I tried to log in, I was locked out due to too many bad login attempts. I called IT and asked if it was kosher for my boss to ask for this info and that I suspected she'd been logging in to my account. They confirmed that they had not asked for the info.

I went to HR about it, and later found out that IT went to the CFO about it. So yes, I am on the record as having made a stink about it.

VP confirmed to us that there is a procedure supervisors have to follow if they want access to our emails etc and that our boss hadn't followed it.

I appreciate the responses in this thread and will check out the resources linked so far.
posted by Biblio at 12:28 PM on December 9, 2007

Biblio, I'm really sorry for what you're having to go through. I've worked in a situation similar to yours and reading your description brought back a rush of all those awful feelings.

It sounds like there are a few things going on here:

- It sounds like your boss was accessing your login. This may or may not be a big deal. It really depends on your work environment. Obviously, you don't own your work computer, or your account, or any documents or emails. Does that mean that the boss is in the wrong to go snooping? Well, it's tacky for sure, but I don't think this is anything the VP will concern himself with. I mean, can you really prove that your boss was snooping through your account? Probably not definitely you can't or at least not convincingly to the VP. Still, bring the issue up because it needs addressing if for just general security.

- Is your boss being retributive? Sure. Obviously. Canceling the party (I'm sure your boss can articulate other - possibly untruthful reasons - to the VP for why this was done) was an okay example. The "ringleader" language is dead on. But again, what does it matter? Is this something the VP is really going to concern himself with?

- The medical information is a big deal and your strongest suit. We're talking potentially illegal action here. How you proceed depends on what you want. Do you just want your boss fired? Do you want to seek damages from the company? I'm leaning toward the "talk to a lawyer" crowd here, though without proper documentation and people willing to back you up you probably don't have a lot of standing. You're not clear on what or how the boss gave this information out or what the context was. It's one thing for the boss to say, "So-and-so is out with a backache," its another for him to say, "I ganked so-and-so's medical records, did you know she had a miscarriage in 2003?"

I agree with some of the above comments telling you to expect the worst. I would definitely dust off the resume and start looking.

At the end of the day the VP is much more likely to believe whatever the boss tells them than what you and your co-workers claim. They see this type of inner-office drama all the time. Your boss got to where he is today by ridding a wave of gossip, drama, and lies. Ditto for your VP. They are probably cut from the same cloth.

Also, don't underestimate your bosses' ability to lie. Presumably he is serious about keeping his job, and he isn't going to admit fault in front of the VP. "Oh, your login information was compromised?! Well why didn't you say something?!? That is a serious security breech, you didn't follow procedure by informing me first. I tell ya, Mister VP, these three guys here are loose cannons!" As for the holiday party - it's a pretty incredible claim that he canceled it just because of you and your coworker's complaint. I mean, we both know he did it because he's a reactionary jerk, but your VP is going to be more skeptical.

Good luck.
posted by wfrgms at 1:09 PM on December 9, 2007

I don't know about the legality of this, but perhaps you should invest in and carry some kind of recording device during the meeting, in case you are worried about getting fired and they admit to having breached confidentiality about your medical histories.
posted by bitteroldman at 3:07 PM on December 9, 2007

Nthing bring an advocate with you to the meeting, preferably a lawyer. It sounds to me like the whole company is handling this as hush-hush as possible, and that doesn't bode well for a whistleblower like yourself. Lawyer up, if even only for the meeting.
posted by orangemiles at 8:42 PM on December 9, 2007

If you're working for a publicly traded corporation, anyone other than yourself having your login information is probably a violation of accounting regulations (SOX). This is quite bad, actually. Your situation sounds ugly. When seeking a new job, ask yourself whether they are inclined to treat employees with respect, or not. The American work place is really a cesspool of disrespect.
posted by Goofyy at 1:54 AM on December 10, 2007

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