Do EAP counselors owe a duty of loyalty to employees seeking their help?

Surprisingly no, as shown by a recent federal court decision in Virginia rejecting such a claim by an Employee Assistance Program (EAP) counselor who helped an employee stop alleged harassment.  See DeMasters v. Carilion Clinic, Civil Action No. 7:12-cv-580 (W.D. Va. Sep. 17, 2013)As this decision shows, the law does not require employee relations personnel to warn employees that their loyalties lie with the employer, and can lead to complicated interactions involving these professionals, the employees they assist, and the companies that employ them.

This recent decision involved an employee’s complaint to an EAP counselor that he was being sexually harassed by a supervisor.  The counselor told the employee that the harassment violated company policy and offered to report it to the company.  Once notified, the company investigated the situation and fired the supervisor.  The employee then told the counselor that several co-workers who were friends of the fired supervisor were unhappy with him.  The counselor then notified the company that the employee was facing hostility from co-workers.  The employee later sued the company for harassment and received a favorable settlement.

After these events, the company confronted the counselor about his advice to the employee, questioned his failure to defend the company’s interests, and terminated his employment.  The counselor then sued the company, alleging that the company wrongfully fired him in retaliation for protecting the employee from harassment and assisting him in vindicating his legal rights.

The court reasoned that the counselor was not legally protected from discipline for seeking to promote the co-worker’s welfare at the company’s expense, and dismissed the counselor’s retaliation lawsuit for failure to state a valid claim.  In reaching this decision, the court cited several prior federal court decisions ruling that employee relations personnel do not receive legal protection for defending employees’ rights as part of their performance of job duties; rather, they only have legal protection when they oppose discriminatory actions outside the scope of their job duties.  This means companies can legally discipline their employee relations professionals for doing their work so well that they actually help employees successfully assert their legal rights.

Similarly complicated issues arise when employees ask employee relations personnel to keep confidential their workplace complaints and not share them with the employer.  Under federal employment law, employers can be held liable for failing to act upon information shared with their personnel, even if that information is asked to be kept confidential.  Accordingly, employers are well advised to require their employee relations personnel to disclose informal complaints by employees and information from which harassment complaints can be inferred, even if the employee asks that the information not be shared.  Employee relations professionals can legally break confidence with employees in order to protect their employers.

Given the complicated relationship between employee relations professionals’ duties and employment law requirements, legal counsel is essential in handling these situations.

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