Employers of all sizes continue to experience a rise in complaints of workplace misconduct. In too many instances, these “complaints” are often the proverbial “shot across the bow” from a disgruntled worker who knows his employment is in jeopardy and makes a complaint to forestall further disciplinary action. In other cases, an employee at, or after termination, complains for the very first time that he has been subject to discrimination throughout his employment. And, of course, there are situations where employees truly feel they are being treated wrongly and simply want the “problem to stop.”
To address all of these issues, it is imperative that employers have a well crafted complaint policy that is disseminated to all employees and supervisors and that training be provided on the policy. A properly drafted policy should set forth prohibited conduct, describe the complaint procedure, assure prompt action by management, protect confidentiality to the extent reasonable, and prohibit retaliation for reporting misconduct. Many employers have policies that merely address “sexual harassment” but the policy should encompass any illegal or wrongful conduct whether it implicates discrimination, wrongful pay or overtime classification, need for reasonable accommodation or any other conduct the employee believes is improper.
The complaint policy should make clear that the employer will investigate employee complaints of workplace misconduct and to take corrective action as it determines is appropriate. Indeed, the failure to do so, especially in instances of complaints of discriminatory conduct, can create liability for an organization. Perhaps most importantly, the policy should designate a specific person (preferably human resources) to receive complaints if the immediate supervisor does not address the employee’s concerns. Also, there should be an appeal procedure so that any determinations can be reviewed by a higher level individual. An appeals procedure builds a record for the employer and can minimize litigation by giving the employee the feeling that he has had his “day in court” before he does.
Another critical component of developing a “best practices” complaint procedure is to implement a written investigation procedure. Investigations should be initiated as expeditiously as possible, be properly planned, comprehensive, objective and fair. During the planning phase it is important to determine the following:
- Who will conduct the investigation; is an outside investigator necessary?
- The work rules or laws allegedly violated;
- Whether any of the allegations demand action be taken pending the outcome of the investigation, i.e. whether the complainant and the accused need to be separated; and
- Whether there is a need to preserve evidence, i.e. emails.
The investigator should obtain a written or recorded statement from the complainant, containing all allegations, dates, potential witnesses and any documentation supporting the complaint. The employee should be provided a copy the employer’s complaint policy and the prohibition against retaliation should be emphasized. The investigator should speak to all potential witnesses; inform them of the reasons for the investigation; document all information received; inform the witnesses there will be no retaliation for participation in the investigation; and express the company’s expectation as to confidentiality throughout the process. Additionally, the investigator typically should prepare a signed and dated statement for each material witness interviewed. Documenting important interviews is critical in case witnesses change their stories later on.
After completing the interviews, the investigator should document all information received to determine which facts are corroborated by other witnesses; determine which documents are relevant to the investigation; and evaluate the evidence. He should then finalize the results of the investigation and reach a conclusion. The investigator should then meet with the employee to provide a brief update of the completion of the investigation, demonstrate that each issue has been reviewed and assure them that action will be taken if necessary. The follow-up discussions with the employee should also be documented. If there are findings of misconduct, disciplinary action should be taken against the offender in accordance with the clear company policy. Finally, a determination should be made as to whether there is a need to prepare a comprehensive investigative report, bearing in mind that such a report could become evidence in any subsequent litigation.
Litigation involving either an actual workplace complaint or a claim that the employee suffered some sort of workplace misconduct while employed constitutes a large number of lawsuits against employers. Establishing a best practices complaint policy and investigative procedure can mitigate the likelihood of a claim and increase the probability of prevailing if litigation does ensue.