Kolman Ely P.C.
Employment
Law News:
Copyright KEPC 2010


Kolman Ely P.C.
Since 1991
Beware of Going to the Employee Assistance Program

Employee Assistance Programs are regularly used by employers as coaching for difficult employees or as a resource for those who are suspected of having psychiatric or psychological problems.  Sometimes, employers recommend the use of an Employee Assistance Program.  Sometimes the employer recommends use of the Employee Assistance Programs in its handbook and suggests that when you contact the assistance program, it will be in confidence.  Sure.  You can never trust the employer to keep your issue “confidential”.  By “confidential”, the employer simply may mean that it will not tell anyone else outside of the company that you have a problem.  However, perhaps more importantly, just because you go to the Employee Assistance Program, with a discrimination complaint or a disability or a medical condition, that will not be sufficient to put your employer on notice that you have a disability or you are suffering from discrimination.  In other words, you remain unprotected.  This matter was recently discussed by the U.S. District Court for the Eastern District of Pennsylvania in a recent case called Hopson v. St. Luke’s Hospital and Health Network.  The Court had to consider whether an employer’s recommendation that the employee seek assistance from an Employer Assistance Program was sufficient to state a viable claim of disability discrimination under the Americans with Disabilities Act.  It was not. 

In order to be certain that you are protected, you need to contact us if you believe you have a disability which is not being accommodated or you have suffered damages as a result of discriminatory and/or unlawful treatment by your employer.  Do not trust the Employee Assistance Program.  Now it’s official.  Do not go it alone.  Trust us – not your employer.

Do Not Trust Human Resources

Do not trust anyone from Human Resources if you are an employee.  Understand that everyone in Human Resources represents your employer and is looking out to protect the employer, not you.  There may be people, who are Human Resources representatives and employees, who lend you a sympathetic ear and who you believe you can trust.  Know that you are probably dead wrong about the trust issue.  The job of Human Resources is to avoid employee problems and if they see you as the problem or a potential problem, they will assist your employer in terminating you.  How does this happen? 

First, when you approach Human Resources with a problem, you had better be complaining about something unlawful.  If you are complaining that your supervisor is “harassing you” or does not treat you “fairly” or is unethical in some way, you are setting yourself up to be fired because those complaints are not protected under the law.  In order to be protected when you make a complaint, you must indicate that you are being discriminated against on the basis of age, gender, national origin, religion, disability, race or you are the victim of sexual harassment. 

Second, the Human Resource person will “forget” that you ever made a complaint about discrimination.  The Human Resource representative, will tell you that you never made a complaint about discrimination but simply complained that you were not being treated fairly or properly and as a result, there was never a need for them to investigate your accusations.  Therefore, to prevent the Human Resources representative from ever saying this and from ever denying that you made a protected complaint, you must make your complaint in writing.  This is the only way to truly safeguard against lies and misrepresentations from Human Resources representatives later on. 

Third, if the Human Resources person says they will do an “investigation”, you can be sure that any investigation, even if it happens will be entirely one sided.  Do not expect to be interviewed.  You will probably never get the results of the “investigation”.  You will probably be told that the investigation was completed and the employer “took action”.  The employer will tell you that it is none of your business what action was taken. 

You need sound counsel from the beginning.  Don’t do this alone.  They are bigger and nastier than you.  Get reinforcements.  Call us.