By: Rachael Jeanfreau and Kayla M. Jacob
An employee complains that her supervisor is treating her unfairly. Maybe the complaint has merit; maybe it does not. Either way, the employer’s response matters. Mishandling the complaint can create a separate, and sometimes stronger, claim than the one the employee originally raised.
Here are a few practical dos and don’ts for employers to follow after an employee complains:
DO:
- Recognize a complaint when you hear one. A complaint will not always arrive as a formal email to Human Resources or use words like “discrimination,” “harassment,” or “retaliation.” Employees often raise concerns informally, including in conversations with supervisors. Do not ignore a concern simply because the employee did not use legal terminology or formal channels to report it. It is important to train supervisors to recognize when complaints are made and to immediately report such complaints to Human Resources.
- Take all complaints seriously and promptly investigate. A complaint may ultimately lack merit, but employers should still act quickly, gather facts, review documents, and assess the employee’s concerns to determine what, if anything, happened and decide upon any remedial measures. Failure to investigate can turn a simple complaint into a claim, charge, or lawsuit.
- Choose the right investigation team. Use impartial investigators who can maintain confidentiality and consider using legal counsel to handle an investigation when the circumstances warrant it.
- Close the loop. Do not let the complaint disappear into an HR black hole. After the investigation, employers should follow up with the complainant and the accused to confirm that the complaint was investigated and, where appropriate, communicate relevant findings or next steps.
DON’T:
- Make a knee-jerk response. Prematurely reaching conclusions and making employment decisions without first investigating all the facts can create liability for an employer and undermine the investigation. Employers should avoid immediately assuming wrongdoing by the accused, dismissing the complaint as unfounded, or promising a particular outcome before gathering the relevant facts.
- Neglect documentation. Employers should document the complaint, key investigation steps, witness interviews, documents reviewed, findings, follow-up, and any corrective action taken.
- Mishandle confidentiality. Do not broadcast the complaint or investigation details beyond those who need to know. At the same time, avoid promising absolute confidentiality because the employer may need to disclose some information during or after the investigation to witnesses or key decision makers.
- Invite a retaliation claim. Even if the original complaint lacks merit, the employee may still claim retaliation. A sudden negative evaluation, discipline, schedule change, exclusion from meetings, or termination after a complaint can be characterized as retaliatory. Review the proposed action with Human Resources and legal counsel to ensure it is for legitimate, non-retaliatory reasons.
Bottom line, employee complaints are inevitable; employer-created liability is not. While the right response to a complaint will depend on the specific facts, it is still important to recognize complaints, guard against retaliation, and understand what a proper response entails.
Employers should consult with their labor and employment counsel when tough employee complaints arise.
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