Taking Employee Complaints to Heart: Tips for Preventing and Addressing Employee Complaints
In today’s post-#MeToo climate, we are finding that employees are more likely to speak up about workplace misconduct. Some of the concerns are well-founded; some of them are not. This uptick in complaints, however, means that employers need to take action to ensure employees know how to complain and to properly and fully investigate complaints.
As most HR professionals know, an employer’s most powerful tools for, ideally preventing, and, in the event of litigation, defeating discrimination and harassment claims are preventative measures and, in the event of a well-founded complaint, prompt remedial action. Courts will not find employers liable if they (1) exercised reasonable care to prevent and promptly correct any discriminatory or harassing conduct, and (2) the employee who complained unreasonably failed to take advantage of any preventive or corrective opportunities provided by their employer or to avoid harm otherwise (Waffle House, Inc. v. Williams, 313 S.W.3d 796, 810 (Tex. 2010)). Of course, the opposite is true as well; an employer will be held liable for harassment or discrimination if its actions were not reasonably calculated to stop the harassment (Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257 (1998)).
So, what does this mean for employers on a practical level? First, it is critical for an employer to have a well-written policy prohibiting both discrimination and harassment, which contains an effective complaint procedure for employees to use. The policy should be communicated on a regular basis to all employees. In communicating the policy and designing the complaint process, employers should be especially mindful of employees in remote locations; HR should personally ensure the policy is distributed at remote locations and that the complaint process has a way to bypass the location’s supervisor and contact corporate HR directly (for example, by providing the HR department’s phone number or an 800 hotline).
Second, each time a complaint arises, the employer should evaluate how to proceed based on the nature of that particular complaint. For example, if Sally complains to her manager that Harry told a dirty joke, what is the right response? A number of employers would have HR launch a formal investigation; but another perfectly appropriate response is to have the manager simply ask Harry, “Hey, I heard through the grapevine that you might have said [insert comment]. Did you did you say that?” If Harry says yes, the manager can tell Harry that he cannot say that sort of thing at work and ask him not to do it again; then, the manager can email HR to confirm all of this. The advantage of conducting the investigation this way is that it may preserve Harry and Sally’s work relationship; the supervisor did not say “Sally said you told a dirty joke” and HR was not involved (which might have made Harry feel like Sally “got him in trouble”). Of course, this approach assumes that Harry’s manager has strong managerial skills and can credibly communicate the message of “this is inappropriate” and “don’t do this again.” Of course, if Harry engages in the same conduct again, then HR should be involved in the next investigation to increase seriousness of the situation and implement more formal discipline.
There are circumstances where it may be appropriate not to use managers or HR. If the complaint involves serious misconduct (for instance, an assault) or involves alleged misconduct by a member of the C-Suite, then we recommend considering the retention of external legal counsel to serve as the investigator, rather than HR, for two reasons. The legal counsel will have conducted difficult investigations on a regular basis; and, legal counsel may appear more neutral to a jury since the counsel does not “report to” the C-Suite or depend on the C-Suite for raises like HR likely does. And, hiring legal counsel to serve as the investigator also helps establish how seriously the employer takes that particular complaint.
Of course, each situation is different. We encourage you to reach out to your Client Experience Manager to discuss how best to draft policies and complaint procedures as well as address complaints.
This article is for informational purposes only and should not be considered legal advice. Written by Christie Newkirk and Shelby Taylor with Diamond McCarthy.