Don’t Fall For the Trap

Date: February 6, 2020
It is so easy to fall into the trap: an employee comes to a member of the Board of Directors with a complaint about some job concern and gets the director to “bite.” Out of an understandable, or even noble, desire to be a fixer, a director may assure the employee that he will address the concern, and take care of it. But is that a good judgment response?

There is truly something seductive about employment matters – a feeling by nonprofessionals that they are fully qualified to address HR matters which may appear straightforward, but which in fact may involve complicated EEOC, NLRB or contract implications. Sometimes directors who would never think of involving themselves in other kinds of routine staff-appropriate matters may nevertheless be seduced into entering the employment weeds, rather than respecting the Board’s best role as a policy body.

The train jumps the track in many ways when directors inject themselves into employment matters that can be capably addressed by executives, staff and HR experts. First, anything a director says may later be inaccurately portrayed. A director that expresses any level of agreement that an employee has a legitimate claim immediately undermines the natural process of a complaint working through the chain of command. Seldom does a director get all the facts from the employee. Engaging in dialogue may result in an  employee feeling improperly empowered, validated, or even excused from normal chain accountability – even untouchable.

Also, as soon as the director bites, the director becomes a witness, whose statements can often be later mischaracterized, and given great weight as an agent speaking for the employer. An improper word use, slip of the tongue or responsive email or text can kick the door open to a demand, in litigation, to see all the director’s emails and texts. Few directors will enjoy being deposed about an interaction, with a now-adverse employee, concerning what actions, inactions, or assurances and statements the director did, or did not, make. Comfort only lies in the ability to say, “I correctly and responsibly advised the employee that she should bring the matter to HR, as the proper process – and nothing more.”

But one may ask, “What about whistleblowers for illegal or unethical issues or complaints about HR or the Executive Director or CEO?”  Our experience is that the vast majority of employee direct Board contacts are not of this genre, but are more akin to individualized concerns.  That said, if a Director does identify a complaint to involve unlawful or illegal action, or impropriety by the highest staff member or officer, the director still should not “bite” by engaging in dialogue. Instead, to somewhat verify the substantiality of the concern as one that is very serious, and to avoid later mischaracterization, the best protection is that the employee be told to place any such matter in writing. Employees with well-believed and valid concerns should have no problem doing so. The writing would then be shared with the Board as a whole.

Finally, directors should not fall into the trap of thinking matters are stated “off the record” or “confidentially, you did not hear it from me.”  No such safe harbor exists. Employees prefacing matters in this way, as described above, should likewise be directed to the chain of command.  

For questions or concern regarding the steps to take should an issue such as this arise, contact Steven E. Bers.