When it comes to discrimination and harassment cases that wind up in court, according to a recent article which appeared in Bloomberg BNA, human resource professionals can be called upon to represent either the interests of the employer or those of the worker. Attorney Kathleen Peratis, a partner at Outten & Golden based in New York who represents employees indicated that her firm will hire HR practitioners to testify in cases, “almost routinely.” Peratis notes that these professional witnesses, however, can be expensive. Whether or not these professional HR witnesses are necessary depends a great deal on how complex the rules are surrounding the case and upon the rules of the court in which the case appears on the docket.
In addition to potentially hiring outsiders as witnesses, companies have used their own HR personnel to offer testimony in these types of cases. A human resources professional coming from within the company, which is most often the defendant, can help in providing testimony regarding company policies and procedures as well as to how the investigation was conducted after a complaint was filed.
Such Professional Testimony Can Be Disallowed
According to Mark Phillis at Littler Mendelson, based in Pittsburgh, such professional testimony can be excluded in discrimination and harassment cases because the judge feels that the professional testimony provided by an outside expert is “not necessary in order to interpret a person’s “day to day experience.”
Petrais insists, however, that an HR professional can help walk a jury through what the standards are in an industry as well as company policies. This can help clarify issues that a juror may not understand.
HR professionals need to qualify to testify in such cases by applying “reliable principles and methodologies,” Phillis said, but insisted that, “there are no agreed upon standard about what constitutes a complete and unbiased investigation.” This, he continued, can be problematic when an HR professional is asked to render an opinion that can “masquerade as a legal conclusion as to whether the investigation into the matter was sufficient.”
For in-house HR professionals, such testimony can be undercut when they are called upon to defend their employer’s procedures and status. Often such testimony can be discredited or sufficiently weakened on cross-examination. If an HR manager, for example, is interested in keeping their own job, it can be inferred that their testimony would need to match the interests of their employer for their own self-interest.
When such discrimination or harassment cases end up in court, it can be unpleasant for everyone concerned. That is why having a PEO working for your company and for your workers to help avoid such problems before they become a headache for you is so important.
At NetPEO, we are a network of companies that can help you find the right fit for the positions you need to fill and help you to manage employee and the benefits that your organization offers to them. We feature HR outsourcing, employee benefit management, and employee leasing services.
Contact us today to discuss your company’s current needs and goals. We are here to all of your questions and outline how we can help. Call to schedule a free assessment today and get guaranteed results.