Determining if an Issue Is Ethical or Legal in HR

by Van Thompson; Updated September 26, 2017
two businessmen shaking hands

Your human resources department is likely your first stop for an assortment of issues, ranging from compensation to employee termination. The HR department must regularly determine when an issue needs to be outsourced to another department, and this can be particularly challenging when ethical dilemmas come into play. Some ethical dilemmas are best managed by HR, while others are actually legal issues that should be referred to an attorney.

Information Source

The source of the information that gave rise to the dilemma provides a valuable clue as to which department should handle it. Communications from attorneys should almost always go to your legal department, as should requests for specific information about how your company is run. In-house communications from employees are usually the domain of HR, but if the communication contains a complaint or threat, it's wise to have a lawyer review it. New policies should always be reviewed by an attorney and HR, no matter who created the policy.

Disputes

HR is equipped to handle many disputes within the company such as disagreements between employees or complaints about a manager. Similarly, when an employee raises an ethical issue about how a program or the business itself is being run, this often falls to HR. But when a dispute is about a legal issue -- such as whether an employee has to be paid for working overtime -- this issue should be delegated to your legal department. Similarly, if a dispute has the potential to give rise to a lawsuit, HR and legal may need to work on it together. An employee who accuses a manager of bullying her will need help from HR, but the legal department should advise HR about whether the manager's conduct is illegal.

Legal Interpretation

Whenever there is an issue of legal interpretation, this is a legal dilemma, not an ethical one. This might seem obvious, but legal issues can be subtle. For example, if an employee claims that the dress code prevents her from expressing her religion or a manager believes that she can require employees to attend unpaid training sessions, an attorney should handle the issue. Laws are constantly changing, and what might once have been legal could now be illegal. It's better to err on the side of safety and rely on a lawyer to sort it out.

Bridging the Gap

HR and legal don't have to be two separate departments, and one of the most effective strategies for ensuring that all dilemmas are correctly handled is to involve both departments. In some cases, an issue could be both ethical and legal. For example, the legal department might advise you on whether you can legally terminate an employee for cause, and the HR department can tell you whether termination is an ethical decision and how it might affect your business' reputation.

About the Author

Van Thompson is an attorney and writer. A former martial arts instructor, he holds bachelor's degrees in music and computer science from Westchester University, and a juris doctor from Georgia State University. He is the recipient of numerous writing awards, including a 2009 CALI Legal Writing Award.

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