Employee Complaints: What You Need to Know and Do

By August 17, 2020 August 20th, 2020 Labor and Employment

BY

Employee complaints can range from seemingly minor to very serious.  As an employer, it is important that you recognize when a complaint triggers the need for an investigation.  For example, when a complaint involves allegations of harassment, discrimination, retaliation, safety, or violation of company policies, an employer should initiate a timely and thorough investigation.  While these types of complaints can arise from a number of factual situations and vary in severity, they should always be investigated.

Receiving an employee complaint

All employers should have a clear and concise complaint procedure that is made available to all employees.  The policy should include a list of individuals to whom the employee can make a complaint, including the employee’s supervisor and a member of the human resources department.  All supervisors should be trained in recognizing when a complaint is made as well as on the intake process.

When an employee makes a complaint, it is important to be respectful, take it seriously, and listen to all of the allegations.  It is critical to get as many details about the complaint as possible; and always ask, “Who? What? Where? When? and Why?”.  It is also important to ask the employee if there are other individuals who have relevant information about the complaint.

While an employer must be discreet, promising a particular outcome or guarantying absolute confidentiality can lead to unintended consequences as the employer needs to speak to all parties involved in order to conduct an effective investigation.  In other words, at the complaint stage, it is vital to ask questions and ensure a thorough investigation but not to make promises that you may not be able to keep.

After receiving an employee complaint

1. Determine who should conduct the investigation.  After receiving the complaint, the supervisor and a member of the human resources department should discuss who will conduct the investigation.  Often, the Director of Human Resources conducts the investigation and reports the findings to senior management.  In some instances, if the complaint is very serious or involves a management level employee, an employer will retain an independent investigator to perform the investigation.  While an independent investigator is an additional cost, it can also send a message to the complainant that the employer takes the allegations seriously and ensures a neutral investigation process.

Whether conducted in-house or by a neutral third-party, the investigator should be impartial and objective.  It is important whoever you choose does not have a close relationship with the parties involved, and does not have any personal interest in the outcome of the investigation.  The investigator should be credible, have strong people skills, and have some knowledge of workplace laws.

2. Develop a plan for the investigation. Whether an employer decides to conduct its own investigation or to retain an independent investigator, it is important to make a plan and have a timeline for the investigation.  The investigation plan and timeline should be consistent with other investigations conducted within the organization and any internal policies and procedures.

3. Conduct the investigation. Once you choose an investigator, it is important to initiate the investigation in a timely manner.  An investigation should begin with a review of all relevant documents, followed by an interview with the complainant and alleged perpetrator.  After these interviews, it is important to conduct interviews with any witnesses.

Throughout the investigation process it is essential to remain impartial and be professional.  Do not try to intimidate interviewees.  Make it clear to interviewees that you are conducting the investigation on behalf of the employer and that you will not make any determinations until the investigation is complete.  Be thorough and detailed with the interviews.  Ask open ended questions and that do not suggest an answer.  Remember to ask the “Who? What? Where? When? and Why?” questions.  Assess witness credibility through their demeanor, corroboration by others, potential motives, and past conduct.  Relevant evidence may include materials such as interview statements, employee schedules, attendance records, performance records, writings, photographs, emails, texts, job descriptions, employee handbooks, employer policies, electronic records, surveillance records, etc.  Ask the employee who made the complaint follow-up questions if necessary.

Throughout the whole process, maintain confidentiality of the complaint and of all interviewees to the extent possible.

During every interview, make clear to all parties that retaliation against any party will not be tolerated.

4. Make a determination. Upon completion of the investigation, it is essential to review all of the evidence and compare witness credibility assessments before reaching a conclusion.  The conclusions should be unbiased and supported by the evidence compiled during the investigation.  Typically, the investigator will prepare a written report.  Take appropriate action based on your conclusion.

5. Take corrective action, if necessary. If the investigation reveals that harassment, discrimination, retaliation, safety violations, or other violations of company policies occurred, an employer should determine what type of corrective action is necessary.  The corrective action depends on the seriousness of the infraction; it often includes a range from training, written warnings, or, in serious cases, suspension or termination of employment.

Keep in mind

More specific procedures may need to be followed if there are special circumstances or if the employee is a member of a union.  There may be reporting requirements for certain types of complaints.  Seek legal advice if necessary.

Takeaways

DO:

• Have a straight-forward grievance procedure
• Take all complaints seriously
• Promptly, thoroughly and honestly investigate
• Be respectful
• Make a plan for the investigation
• Choose an impartial investigator with good people skills
• Follow your organization’s policies and procedures
• Keep it quiet, maintain confidentiality
• Stop the issue from reoccurring
• Talk to the complainant about how to best resolve the issue
• Preserve and gather all evidence
• Check for other complaints on the same issue
• Remain impartial and open-minded
• Get all the details
• Ask for written statements
• Assess credibility
• Develop reasonable conclusions
• Make a final written report
• Act on your determinations
• Keep the records on file even after the employees leave

DON’T:

• Ignore the complaint
• Drag your feet
• Promise complete confidentiality
• Go through personal belongings
• Intimidate witnesses
• Argue with witnesses
• Assume there is no merit to a complaint
• Force the complainant to change conditions of their employment to address the issue
• Retaliate
• Delete or destroy investigation records

Perkins Thompson regularly assists employers through the investigation process and, when called upon, acts as independent investigators.  If you would like to speak with the firm about an employment investigation, you can send an e-mail to Dawn Harmon or call her directly at 207-774-2635.