Handling Employee Complaints

David Gabor, Esq.
Posted: 09/13/2010

Part of the job for executives, managers and human resources professionals is handling employee complaints. The manner in which the complaints are handled will necessarily have a profound impact on the business. Let’s talk about the laws, examples of different types of approaches and steps that you can take when the situation arises in your organization.

The discrimination laws protect those who engage in a protected activity. A protected activity is regarded as opposing some form of discrimination that the employee believes is unlawful. It is important to note that the employee does not need to be right so long as he reasonably believes that the activity was is unlawful. The employee can be opposing treatment of himself or another person. If something then happens to the employee within a close temporal period of time, the presumption would be that the action was retaliatory. If the employee brings a lawsuit and loses the underlying claim that gave rise to the complaint of discrimination, the employee can still win her claim for retaliation.

The first step is that we need to know about the complaint. This is critical. We can’t fix something if we don’t know that it is broken. Therefore, the first step is to make sure that we are aware of the complaint. All management level or higher employees must report any form of a complaint by an employee. The complaints need to go to a designated group within the organization that is trained in how to deal with complaints. This reporting must be done immediately after the employee has complained. Any delay can prevent the organization from having a successful resolution of the complaint.

The second step is to organize a planned response. This requires putting together a strategy of how to react to the complaint. This part of the process is best served by creating a checklist for how to respond to a complaint. Among the items that need to be on the list are: interviewing the complainant; identifying any initial precautions; making the complainant feel important; reviewing personnel files for the complaint and the person(s) complained about; making a list of other people that need to be interviewed; determining who should conduct the interviews; scheduling the interviews; determining what steps need to be taken to avoid any inappropriate interaction; meeting with the supervisors to assure that there will be no retaliation; ensuring that no evidence (electronic or otherwise) is lost or otherwise tampered with; scheduling a debriefing after the conclusion of the investigation; and determining what steps need to be taken with the complainant as well as whether any training is warranted. These are some of the steps that typically should be taken. Other steps may also be necessary dependent upon the nature of the complaint, nature of the complainant and the industry.

"When I found out that I was the subject of a complaint I was horrified. I asked the complainant how she could have accused me of harassment. Is that alright?"

No, it is not alright. There should be no opportunity for the complainant and the subject of the complaint to have any uncontrolled interaction once the complaint has been made. One of the first steps is to ensure that there is no uncontrolled interaction because it is easy for that exchange to become emotionally charged. That would serve no legitimate purpose. The subject of the complaint is angry, scared and likely to be out of control. At the same time, the complainant is likely to be overly sensitive and fragile. Alternatively, the complainant may be counseled to look for any small act that she can use to support a federal litigation.

"The complainant was not pulling his weight so I wrote him up. You know, HR is always getting on me to document. You know, paper trails."

This could be a problem. The rules for a person who has filed a complaint are different. On the one hand, it is important that the complainant make an honest effort to work appropriately. On the other hand, any failure to work properly has to be carefully scrutinized. Rest assured, the complainant is looking for ammunition for a retaliation claim. Being too quick to the draw may provide the ammunition. Doing nothing can result in a bloated payroll and morale problems from others in the department. This mandates a carefully scripted policy taking into consideration business, HR and legal needs.

At the end of the day there are a variety of things that can be done when an employee complains. Take into consideration whether you still want this person to work for the company. If you do, try to find ways to resolve the concerns early on. Encourage complaints to be viewed from a neutral’s perspective. Don’t jump to conclusions. Try to understand why the person is complaining. What is the motivation? Are there problems within a division? Have others complained about the same person? Would this person have known about a prior complaint? Is the problem caused by poor staffing? For instance, is the complainant’s manager good at her job? Does she need training? Is the basis for the complaint the product of a misunderstanding that can be easily resolved? Explore all the questions from an objective standard. Then try to map out the best possible strategy.

So, after taking all of this into consideration, remember that this is your opportunity to make some important decisions that will have a profound impact on many people. Make sure that those who are involved in the matter are carrying out their responsibilities appropriately. Remember that non-monetary resolutions can be reached early on. Lastly, remember that the goal is to resolve differences in an appropriate way.

David Gabor, Esq.
Posted: 09/13/2010

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