For many people, requesting accommodations or making complaints to Human Resources is intimidating and unpleasant. People are often concerned that they will face retaliation for seeking HR's help. Sometimes people distrust HR and wonder whether HR is there to help them. Sometimes they have had bad experiences with HR and would rather avoid unproductive conversations.
Is HR on My Side?
No. HR exists to protect the company. But when it comes to requesting leave and complaining of illegal conduct, HR wants to protect the company from lawsuits, so your interest and HR's interests may be aligned. If HR is doing a good job of protecting the company from risks, they may want to investigate and discipline wrongdoers to mitigate those risks.
How do you protect yourself when dealing with HR? From a lawyer's perspective, we want you to keep two things in mind: (1) always make a record and (2) know your rights before you go to HR. This can help you keep your complaint or request for accommodations focused and legally justifiable.
How to Make a Record of Your Interactions with HR
You need to make sure you always make a record of your conversations with HR. Why?
First, any competent HR department will be keeping a record of their conversations or interactions with you. If you do not make your own record, you let them control the story— and they will use it to cover for the company.
Second, you want to be able to prove that you requested accommodations, that you complained about harassment or discrimination, etc. This is much easier if you have a written record that a conversation occurred. Too many times, an employer has denied knowing an employee was pregnant or requested accommodations—because the employee didn’t inform the employer in writing, making it easy for the employer to lie. Do not let this happen to you.
Finally, making a record is an opportunity for you to look good if there is eventually a dispute. If you keep your communications thoughtful, constructive, and professional, you look like a good employee who was trying hard to navigate a confusing situation, and your employer looks like they were negligent or malicious in refusing to accommodate you or retaliating against you.
Can I Record My Conversations with HR?
It is illegal in California to record any confidential conversation with the consent of all parties to the conversation. (This is called "two-party consent." Other states allow people to record conversations without the consent of the other parties.) A conversation is "confidential" if there is an "objectively reasonable" expectation that people are not listening in or overhearing the conversation.
You can protect yourself without violating two-party consent laws in two ways. First, you can inform whoever you are talking to that you intend to record the conversation. When you start the recording, reiterate that they have agreed to be recorded. The downside is that this usually makes people very wary and they often refuse to talk to you. HR reps often refuse to talk "on the record" and will refuse to consent to recording.
If that happens, or if you don't want to ask permission, you can take notes while you are on the call or having the conversation, or immediately after you are done. This way, the conversation will be fresh in your mind and your account will be reliable. Your notes are not a "wiretap" within the meaning of the two-party consent law and you cannot get in trouble for taking them.
If there are several people involved in the conversation, you may or may not be able to record the conversation without everyone's consent. Whether there is a reasonable expectation of privacy is a fact issue that depends on the circumstances. So while it might be okay, you also cannot know that you are in the clear. We generally recommend that people take detailed notes because of this uncertainty.
Talk to An Experienced Employment Attorney
Talking to HR can be daunting. But as you’ve seen, discrimination and retaliation happen—even to people who are certain their employers will be understanding. That is why you should protect yourself.
If you have questions about your interactions with HR or believe you are being retaliated against, do not hesitate to reach out to our experienced employment attorneys.