Questions for Noel Freeman, HR Professional
Updated: Mar 22, 2021
The recent passing of James Levine has brought up again both his awful, ugly past, and our seeming inability as an industry to grapple with what our workplace can become.
Orchestras are unique creatures in many ways. For instance, we have dual hierarchies, artistic and administrative, we have a unionized workforce, and we often work together outside the confined of our main place of employment and bargaining unit. As orchestral musicians, we do all this while operating in a field that is limited in it's mobility and opportunity, and might have very real concerns of retaliation as a result both within the organization and in the field as a whole. Additionally, the artistic head of the organization reports directly to the board, and not the administration, and is sometimes not considered an employee for tax and privacy purposes.
The questions below are intended clarify some of the situations we face in our everyday lives as orchestral musicians.
DISCLAIMER from Noel Freeman:
I’m not an attorney and this isn’t legal advice for you or anyone else. Additionally, for the purposes of responding to these questions, I will interpret the word ‘duty’ as meaning a legal obligation imposed on an employer by federal, state, or local law. Finally, hypotheticals are very difficult to deal with because they can often imply a one-size-fits-all approach. Each situation should be evaluated individually.
IM: What is your title, and what does it mean? Are there different types of HR professionals?
NF: I have two titles: Department HR Liaison and Department Disability Program Manager. For perspective, I work for a very large public agency with 23,000+ employees. My department has about 4,000 employees. As the HR liaison, I am the central point of contact between my department and the Human Resources Department. In essence, I help our staff navigate HR processes and work to resolve issues that arise in dealings with HR staff. As the Disability Program Manager, I am responsible for managing the ADA reasonable accommodation process and ensuring our compliance with the law. It’s a complex job duty that consumes about 50% of my time.
There are a lot of different types of HR professionals. It depends largely on the size and needs of the organization. Many small businesses, and especially non-profits and arts organizations have what we call a “department of one.” That is, they are called upon to do everything. I am a certified HR professional, credentialed by the Society for Human Resource Management (SHRM).
IM: As orchestral musicians our direct supervisor is the personnel manager. What tools does the organization need to equip them with, and what tools do you think would be helpful to them in managing the orchestra?
NF: I think this is going to depend largely on the specific needs of the organization beyond the basics like payroll, on-boarding, off-boarding, etc. Many small HR departments don’t have people who know all aspects of HR. That’s one of the reasons why membership in industry associations like SHRM are of benefit. I’m a member of SHRM and the American Bar Association because they help educate me on specific issues I have to deal with and provide resources like networking with other HR professionals and sample policies. I would always encourage organizations to invest in educating HR staff and giving them the resources they need to tackle issues for which they may lack experience, knowledge, etc. Additionally, depending on what activities HR undertakes, HR should be empowered to act as a relatively independent, objective arm of the organization. This can prevent management or others from improperly interfering in or influencing personnel actions.
IM: Does the union have responsibilities towards the health of the workplace, or are those squarely on the employer?
NF: The employer has a duty to provide a safe, healthy work environment. The union can negotiate working conditions through a CBA or address issues with the employer on behalf of members, but ultimately the union is not the employer and does not control the workplace.
IM: When does an interpersonal issue among players become a workplace issue?
NF: Generally speaking, it’s a workplace issue the moment it affects the workplace. That can take infinite forms, but let’s use the example of two employees dating. Maybe they get in a fight over the weekend and start giving each other the cold shoulder and won’t interact with each other for work items or complain about the other in the break room and gossip starts flying around. While the impact on the workplace might be minor, it becomes a distraction that ultimately affects employee performance. Sometimes these issues can be much more serious.
IM: As a bystander, do I have a responsibility to tell my employer about an issue I witnessed?
NF: Like many answers before, the answer here is, it depends. If your inaction creates or contributes to liability, a hostile or toxic work environment, illegal activities, etc. you should probably tell your employer just to protect yourself from adverse action. If you failed to report improper activity for which there was a contractual obligation, policy obligation, lawful obligation, or reasonable expectation to do so, your employer could hold you equally responsible for the improper activity and you could receive the same punishment as those engaged in the improper activity.
IM: James Levine was infamous. Many are coming forward with stories about how they heard the rumors. Under what conditions does one have the duty to report a potential issue that they did NOT witness first-hand?
NF: Hearsay (second-hand information) is generally not considered substantiating evidence and employers should be very careful about using it to take action against an employee.
As an HR professional, I find myself in the position from time to time where information is reported to me by first-hand witnesses who do not want to be identified as complainants for fear of retaliation or any number of other reasons. Someone hearing rumors like what we saw with James Levine has to consider obligations under a CBA, policy, law, or reasonable expectation standard, and if none of those are in play, consider if the information is credible enough to demonstrate harm to another employee has occurred or will occur. When reporting second-hand information, it’s always important to be clear that the information is second-hand. Wherever possible, provide information such as names or contact information for anyone the employer could contact to determine if there is verifiable evidence the allegations are credible. If the alleged actions could be illegal, it’s always a good idea to err on the side of caution and report it. Many HR professionals consider it a duty to report alleged illegal activity to law enforcement or allow management to make a determination on a referral to law enforcement, primarily to protect the organization and its employees from legal liability.
IM: When does a rumor become an issue worthy of investigation by the employer?
NF: It depends. (I know you love those two words by now) The employer should consider the severity of the rumor and its credibility. If I hear that Ilan is using too many paper towels when he dries his hands in the restroom, that’s a much different situation than if I hear the boss promised someone a promotion if they had sex with him. This also depends on the limitations of the employer’s ability to investigate an issue. For complex situations, such as that with James Levine, it is advisable to seek advice from an employment law attorney on how to proceed. I have the advantage of working for a public agency, so we have a lot of power to compel employees to cooperate with investigations. That’s a luxury the private sector does not often enjoy.
IM: Does the employer make that determination regarding an investigation?
Usually. Employees should never go rogue and conduct their own investigations. This is another reason why HR should be independent and objective. No employer ever wants to go through an investigation, but it’s important to anticipate it at some point and enact policies and/or contract clauses that address employee roles and responsibilities during an investigation. For example, an employee in my agency who refuses to cooperate with an investigation or lies to the investigator is subject to immediate termination.
IM: Does it matter if the allegations are regarding occurrences outside the direct responsibility of the employer?
NF: It depends. Employees are often subject to action by the employers for actions they take outside the workplace. We see this all the time with employees who are arrested for criminal activity or embarrass the organization on social media. Many employers have morality clauses in contracts that explicitly allow the employer to take adverse action for objectionable conduct as an operation of the contract. If an employer has direct knowledge of illegal conduct that would be subject to criminal prosecution, the employer may have a duty under law to report it to law enforcement. It doesn’t hurt to consult with an attorney if the employer is unsure.
IM: Somewhat related: under what conditions is the employer obligated to have an outside investigation?
NF: Usually when its policies or procedures require it, unless, of course, the allegations involve criminal activity that would be investigated by law enforcement. Failure to report credible information of criminal conduct could expose the employer to criminal or civil liability.
IM: If an orchestra musician approaches the personnel manager to report an issue, what is the employer’s responsibility?
NF: It depends on the issue and what policies or procedures govern that type of issue.
IM: : If that same musician approached the HR professional, do the employer’s responsibilities change? (In other words, does it matter who you report the issue to?)
NF: On its face, I would think “personnel manager” is HR. Not all HR employees are called HR. This depends on how the organization is structured, policies and procedures that are in place, and what the roles and responsibilities of the various employees are. Nonetheless, there should be a clearly identified reporting chain or “whistleblower” contact to ensure misconduct is reported to the right person.
IM: What does one do if an issue goes unaddressed and unresolved?
NF: This depends on the issue. If the orchestra does nothing about Ilan’s rampant paper towel usage, it’s probably time to let the issue go and make a donation to the Sierra Club on his behalf. If the orchestra does nothing about sexual harassment or discrimination, an employee could file a complaint with the EEOC or another agency that handles workplace compliance issues such as a local human rights commission. Victims of harassment could even file a lawsuit against the employer if it failed to act on credible evidence of misconduct.
IM: In our field, that has very little job mobility and limited outside financial opportunity, there is a strong disincentive to come forward to report issues. What can the employer do to help protect their employees to help create a more open dialogue and contribute to a better working environment?
NF: Fear of retaliation is very real, and we’ve all heard stories of people who nuked their careers by coming forward with allegations of wrongdoing. We can’t tell people how they should feel, but we can try to establish and foster a culture or transparency and support for employees who are the victims of improper conduct. Workplace culture is the most effective weapon against improper conduct. It starts with policies and procedures and is reinforced through consistent, objective enforcement. Employees should be empowered to report improper conduct and feel confident the employer will protect them from retaliation. In most policies, there exists a list or guideline or behaviors that will result in immediate termination. Firing someone often sends a clear message to those who might consider engaging in similar behavior.
IM: The music director is the top artistic authority in the organization, has the final say in hiring decisions, has the ability to start the process of dismissing players, and is recognized as such in our CBAs. What recourse does a musician have if they feel wronged, uncomfortable, or even harassed with the music director’s conduct?
Examples can include: Discussing explicit body parts in rehearsal, asking a musician to play sensually (as if she is stripping), exposed midriff while conducting, inviting a musician to dressing room for private conversation while changing clothes, inviting a musician to dressing room for private conversation without union or employer presence
NF: All organizations should establish a strong, clear sexual harassment policy that details not only prohibited conduct, but also the roles and responsibilities of those involved and the possible ramifications of violating the policy. All employees (and contractors) should receive a copy and sign for it to document people are aware of the policy. The organization should do the same with a Code of Conduct for all personnel from the musical director all the way down to the volunteers who show people their seats.
The most important piece of addressing such issues is for the musician to make sure the offending person knows the conduct is unwanted and makes them uncomfortable. They could address it directly with the offending person or with HR or other management. An employee should have the ability to remove themselves from an uncomfortable situation such as a dressing room and request the discussion take place at a different time in a different setting. The employee may have an obligation to make their discomfort known in order to establish that improper conduct has occurred. If the CBA allows the presence of a union rep in such meetings, it is the employee’s responsibility to exercise that provision of the CBA.
Further, the CBA or employer policies should clearly establish the circumstances under which the music director can initiate dismissal of a musician. I would ask if a personality conflict really rises to the level of a dismissible circumstance. We’ve all worked with people we don’t like, so the question is whether or not an organization wants to give one person the power to dismiss people they simply don’t like. It’s important to take subjectivity out the equation wherever possible. I’ve known people who hated each other but made beautiful music together because they were professionals in every sense of the word. Why should an orchestra be any different?
IM: If the music director is an independent contractor, as opposed to an employee of the organization (This can be done to conceal MDs pay), do they have different responsibilities towards their musicians as their subordinates?
NF: This should be defined in their contract. It’s not unusual for contracts to include a clause that says contractors have to comply with all organizational policies and procedures (often drug testing policies). It all comes down to what the organization thinks needs to be in the contract. In the case of James Levine, there seems to have been enough oversight missing from his contract that the Met paid him $3.5 million to walk away instead of defending a breach of contract lawsuit.
IM: Does the organization need to supervise artistic communications between players? In other words, in the event there’s a player in the hierarchy that is uncomfortable in answering to another player’s guidance for non-musical reasons, what are the employer’s responsibilities?
NF: I’m not sure I understand what you mean by “supervise.” If an employee is uncomfortable working with another employee, it’s probably a good idea for management to know why because it can cause operational problems within the organization. The employer’s responsibilities and means of resolving the issue will depend on the cause of the conflict.
IM: In the case where a member of the orchestra acts as an employer towards another member of the orchestra for an outside organization, say as contractor on a gig, or as a supervisor at a Higher Ed institution, what do they need to do in order to make sure their conduct does not interfere with their working relationships in the orchestra?
NF: I assume you mean their conduct in the outside employment situation. As a general rule, employees need to “check their baggage at the door.” When you come to work, you are expected to be professional and perform your duties in the manner expected. If your outside drama interferes with the workplace, you may be subject to disciplinary action, even if the other person involved is victimizing you in the outside employment situation. If an impact on the working environment is unavoidable, you should make management aware and sort out how to productively minimize the impact.
IM: Does the employer have an obligation to supervise potential conflicts of interest to either advantage or disadvantage a colleague? Say, if a member of a section is assigned a specific part that includes additional monies by a principal player, and in return hires the principal player for outside work?
NF: This falls into the internal policy arena. An organization should consider to what extent it needs to address or police conflicts of interest and develop an appropriate policy to set forth expectations and responsibilities of employees when it comes to conflicts of interest. Keep in mind, employees generally have a constitutional right to freedom of association, which can limit the extent to which employers can control outside business dealings by employees. Conflicts of interest policies have to be clear and specific to those things that impact the operation of the organization.
Let’s be honest - a lot of the work we do as musicians comes from our personal networks. The question I would ask is does this tit-for-tat gig relationship negatively affect the organization? Does it unfairly deny another player of opportunities they should be entitled to? An orchestra could reasonably establish a policy or standard operating procedure by which these parts are assigned. For example, it could use a lottery system or rotation to ensure musicians have an equal opportunity for these part assignments.
IM: Part assignments are done by principal players. These can affect non artistic issues like service count causing a potential equality issue or pay discrepancies, where one person might work much more than another. Is there a duty on the part of the employer to supervise, within reason, that work is divided equally?
NF: As long as what’s being done is not discriminatory, it comes down to how the employer chooses to handle it. I’ll repeat part of my answer from above - An orchestra could reasonably establish a policy or standard operating procedure by which these parts are assigned.
IM: Does the employer have a responsibility to police employee conduct outside the workplace, for instance, on social media?
Many employers have developed social media policies for employees when they felt it was necessary. These are often implemented in the aftermath of a problem they experienced or negative publicity. With many musicians having a social media presence as an integral part of their careers outside the orchestra, it may be advisable for the orchestra to develop such a policy. After all, how would your orchestra feel if a notable player posted a video of them storming the US Capitol?
IM: The hiring and tenure process for musicians is artistic in nature, and as such HR is not present when these decisions are made. This opens the door to a variety of situations where a member of a committee might use their influence to hurt another person’s employment. Is that acceptable, or from the employers point of view, should they just accept that people should get along and perhaps it’s best not to intervene?
In other words, as a hypothetical, as part of the hiring process if the employer witnesses a musician voting for all members of a class in an audition situation, say a male musician voting for all the female candidates, does the employer have a duty to intervene?
NF: An employer has a duty to ensure discrimination does not occur in hiring practices. Discrimination doesn’t have to be intentional to be illegal. There is disparate treatment - discriminatory actions and disparate impact - non-discriminatory actions that have a discriminatory effect. The employer should certainly take any steps necessary to eliminate any appearance of discrimination in the workplace. You don’t want to have to defend an EEOC charge if you can avoid it.
IM: I have twice witnessed occurrences where the teachers of audition candidates write a letter on behalf of their student who is auditioning. In one case the letter was sent after a no-hire, and in another case the email was sent privately to members of the committee to inform them of the affiliation of the candidate during the process. People who act in that manner are often in a position of influence they are leveraging in that behavior. Does the committee member have a duty to report this intervention to the employer and the committee?
NF: It depends. Employers should have established practices and written policies, expectations, etc. wherever possible to govern the hiring process. Putting in a good word on behalf of an applicant is not limited to the music field. It happens pretty much everywhere. If an organization wants to limit such activity, it should establish clear guidelines for how committee members are to respond to such contact and how to communicate to applicants that such contact is not permitted. For example, an audition posting could state something like, “Letters, emails, phone calls, or other recommendations from third parties are not permitted and will not be accepted.”
IM: Does the employer have a duty to provide an equitable hiring process between auditions for different positions? For instance, if a member of the committee is concerned about a personal relationship with a candidate, are they allowed to lobby for the organization to add an interview round to an audition in order to avoid hiring a specific candidate or type of candidate (young, inexperienced, from a specific school of playing, personal conflict)?
NF: Again, the organization should establish uniform hiring policies and procedures that everyone has to follow. This should include objective criteria that can allow candidates to be scored on the same rubrics. The organization should consider removing or replacing a hiring panel member who has a conflict of interest or attempts to achieve a particular outcome. This is not always easy, as many people do not advertise their biases or intentions, but established procedures should help prevent someone from attempting to change or otherwise manipulate the process.
IM: The hiring of substitute players is officially done by the organization, but in practice is done by the principal players. Is it permissible for musicians to leverage their position as de-facto employers for financial gain?
Such examples can be gig-trading, trading work in the orchestra for unrelated work (say, I hire you to play, and you’ll do my website?), trading work in the orchestra for access to students at a school as a source of income, or trading work in an orchestra for masterclasses at a university?
Is there a duty on behalf of principal players to adhere to any requirements at all in their hiring requests?
NF: The same thing I mentioned above about policies regarding conflicts of interest goes for subs. It’s not uncommon, from what I understand, for subs to get hired based on their personal relationships with people in their network. If this sort of thing becomes problematic, an orchestra could, for example, create a sub-eligibility list and call subs based on a certain set of criteria like the lottery or rotation system I mentioned earlier.
IM: We’ve witnessed several orchestral players lose their jobs over allegations of using their position of authority to harass members of the orchestra, substitute players, or students at a university where the orchestra members were hired for a residency. In all cases that are public, the musicians who lost their jobs did not seem to face legal ramifications. I certainly have no reason to not believe the victims! This situation to me is puzzling. It’s my understanding that the burden of proof is different for prosecution vs dismissal from a job. Is that correct? Can you explain the issue?
NF: Without specific details, my first guess would be these situations did not rise to the level of criminal offenses, or if they did, the parties involved did not feel there was sufficient reason for pursuing charges. In cases that could involve civil liability, parties involved often decide the cost of litigation outweighs the potential outcome. Think of it this way - would you spend $100,000 litigating a case that would yield $20,000 in damages? Probably not.
As for the burden of proof, you are correct. In many states, employees can be fired for any reason or no reason at all, provided it is not a discriminatory reason.
By night Noel Freeman is a Houston-based Bass Trombone player, a member of the American Federation of Musicians, and board member at the Houston Pride Band. By day Mr. Freeman, MPA, is Human Resource Liaison/ Disability Program Manager, and Division Manager at Houston Public Works, and past president of the Houston GLBT Political Caucus. Noel Freeman has generously offered his professional advice to readers who might feel they need it. Thank you so much for your time, thoughtfulness and expertise, Noel!