The Hitchhiker’s Guide to the Galaxy Has an Essential Lesson for Employers
Any fan of “The Hitchhiker’s Guide to the Galaxy” knows that on its cover are inscribed, in large friendly letters, the words “DON’T PANIC.” When I write “The Employer’s Guide to Employee Complaints,” I may do the same. For there is something about an employee’s complaining of mistreatment by the employer that can inspire a type of panic in employers -- a mix of indignation and fear -- that results in actions that are the opposite of helpful. The key for employers is to realize that, sooner or later, no matter how magnanimous and fair you may be towards employees, you will receive a complaint from one -- so DON’T PANIC when you do.
First, remember that if your company has adopted and communicated anti-discrimination policies, then -- in the vast majority of cases -- following and enforcing those policies will provide the company with an affirmative defense against a discrimination or harassment claim. So even if violations occurred, the employer will not be liable if it adequately adopted, communicated and enforced its policies.
Second, understand that an employer’s reaction to a complaint can, and often does, transform it from a non-legal, insignificant risk to a slam dunk legal claim. This is because all anti-discrimination and harassment statutes contain non-retaliation provisions that can give rise to an independent legal claim. State and federal legislatures included these provisions because they want employees to voice their concerns and exercise their rights without fear that they’ll lose their jobs if they do. Therefore, even if a complaint of discrimination or harassment made by an employee turns out to be merit-less, an employer will gift-wrap a merit-full retaliation claim if it takes adverse action against the employee for voicing the original complaint.
So what should an employer do when it receives an employee complaint? Simple: call an experienced employment lawyer.
I realize this can be viewed as self-serving advice; but a good lawyer is worth his or her weight in gold in these situations. Here are some key advantages they bring:
Distinguishing between complaints that raise real legal concerns, and those that don’t. A complaint that seems fairly benign can, in fact, impose significant legal risk, and vice-versa. A good lawyer can differentiate. Many times, the complaint will involve managerial or policy issues, but not rise to the level of a legal problem. In such cases, a simple communication to the employee will be all that is necessary, without going down the road of a full-blown investigation.
Conducting the investigation in an orderly manner that minimizes disruption to the company and only focuses on complaints that may trigger a legal right. Too often, inexperienced investigators or non-lawyers will take a “scorched earth” approach, interviewing everyone and treating all issues as if they were legal risks. A good lawyer will “box in” the employee’s complaints so that only significant legal claims warranting attention will be analyzed, and only essential witnesses will be interviewed.
Ensuring attorney-client privilege applies to your conversations and to the work she performs. Any employer who hires a non-lawyer to perform an investigation and issue a report is creating Exhibit A for an employee lawsuit later on. A report from a lawyer, in contrast, should be protected from disclosure under attorney-client privilege or as attorney work product.
Providing objectivity to the analysis. In-house investigators naturally bring some bias to investigating complaints. Hiring a lawyer to conduct the fact-finding and analysis ensures that the process is performed objectively.
Authoring the appropriate communication to the complaining employee at the conclusion. A cardinal rule of analyzing employee complaints is the employer should always provide a written response to the employee at the end of the review process. Providing this is critical to evincing the fact that the employer took the matter seriously and followed its applicable policies. An experienced lawyer will know how to craft the response without opening the door to further questions. For instance, if an investigation only reveals poor managerial practices that do not trigger any legal issues, the communication to the employee should only focus on the fact that no legal violation was found. The employer should certainly work with the manager to correct his or her shortcomings, but this remedial training should be handled separately from the legal analysis and should not be communicated to the employee.
Remember: all employers should adopt and communicate anti-discrimination and harassment policies, and enforce them when issues arise. Doing so will not only provide a healthy work environment, but also protect the employer from liability when issues do occur.
If you have any questions about any of these points, don't hesitate to contact me at 615.916.3224 or tmckee@tmckeelaw.com
