California employers have a legal duty to respond to certain employee complaints. Failure to respond or failure to respond appropriately can result in significant liability. This is particularly true with complaints of harassment, discrimination and other unlawful conduct. Accordingly, employers should never take employee complaints lightly. Even if no legal duty to investigate exists, a well-managed response can minimize or even eliminate problems and improve employee morale.
Achieving the well-managed response is not easy. It takes careful planning and execution. Fortunately, most employers do a very good job of managing their employees, and complaints are infrequent. Unfortunately, this means most employers have little experience at managing the complaint process. Being aware of and strategically planning at each step of the process can help make up for the lack of experience.
Here’s how you do it:
Receipt of the Complaint
How an employee complaint is received can be critically important. If the employer has not created a culture of trust and respect, employees will not be comfortable coming to management with complaints. That may mean fewer complaints but will also mean bigger problems — employees are not required to complain to the employer before filing a lawsuit. Consistent with the culture of trust and respect, the manager receiving a complaint should express an interest in and concern for the employee making the complaint. Remember, the employee is not happy about something. A closed-minded, uncaring demeanor during the first contact will only make the unhappiness grow.
It is also very important to be aware of and address the complaining employee’s expectations. If the employee requests that the complaint be kept confidential, the manager must be able to explain why it cannot be kept completely confidential and must be able to do so in a way that does not alienate the employee. The manager should also address the employee’s expectations for the process and the result. Obviously, it is too early for the manager to make promises about the result, but he can help build confidence in the fairness of the process.
Once a complaint is received, the employer should act immediately. Any delay in taking action on an employee complaint will be magnified tenfold in litigation, and the employer will have a very difficult time overcoming the perception that the complaint was dismissed as unimportant.
Conduct an Investigation
Every employee complaint warrants an investigation. That does not mean that every complaint requires a lengthy, formal process conducted by professional investigators. The investigation might be as simple as asking the employee a few questions. Regardless of its scale, the investigation’s purpose remains the same: to get an accurate understanding of the facts. Only with a solid understanding of the facts can the employer make an informed decision on the complaint.
As an initial matter, the employer must determine who will conduct the investigation. Will it be conducted by a single individual or several people working in coordination? Will it be conducted by the employer’s own staff or by an outside investigator? In either case, the employer should consider the following factors:
- The nature and seriousness of the complaint. Complaints about the speed of the copy equipment do not warrant the same level of investigation as complaints about sexual harassment.
- The skill and experience of the investigator. Whether an employee or outside professional, the investigator should understand how to conduct a good investigation and have the skill to do it. In some cases, an internal investigation is preferred. If the employer does not have a skilled investigator on staff, the employer should hire an expert to guide and coach the employee conducting the investigation.
- The investigator’s neutrality regarding the facts and witnesses. Any bias, real or perceived, can render the investigation useless.
- The investigator’s quality as a witness. The investigator may well be a key witness in future litigation. The ability to speak well and inspire confidence is essential in that arena. It is equally important in giving the complaining employee and witnesses confidence in the investigative process.
- The outside professional’s qualification. California law requires outside investigators to be either a licensed private investigator or an attorney.
- Whether creating a legal privilege around the investigation is important. If it is, the investigation must be conducted by an attorney and conducted in a manner that maintains the privilege.
- The scope of the investigation. The investigator should find the facts and assess the credibility of the witnesses and information obtained. The investigator should not make legal conclusions or suggestions on what actions to take, even if he is an attorney.
It is important to understand that the investigator or investigators cannot follow a set formula or pattern in every investigation and expect success. A specific and strategic plan is always advised. The plan will include consideration of who will investigate, who will investigate which parts, what order witnesses will be interviewed in, where they will be interviewed, what kind of record will be created and who will be responsible for communications. As important as it is to have a strategic plan, it is even more important to not follow it blindly. As facts are uncovered and circumstances change, the plan may need to be adjusted. By definition, a good investigation will be flexible enough to ensure that all of the relevant facts are uncovered with a minimum of collateral damage.
Review the Investigation and Respond
The employer bears the ultimate responsibility for responding to the complaint. Doing so appropriately requires a clear and complete understanding of the facts. If the employer is uncertain about any facts contained in the investigator’s report, they should be clarified. If the employer is not confident that the investigation was thorough, further investigation should be ordered. With all the facts and confidence in them, the employer will decide what actions to take on the complaint. This is the point where an employer should be interested in legal conclusions, particularly if the complaint is serious. The deliberations about what actions to take and why should be protected against disclosure. Often, it is advisable to have such deliberations protected by the attorney-client privilege.
While the deliberations may be secret, the decisions resulting from them are not. They will need to be communicated to the complaining employee and other interested employees and communicated effectively. Once again, a strategic plan is critical. How something is communicated is often as powerful as the content of the communication. The effort put into the investigation and the problem-solving potential of the complaint process can all be lost by careless final communications.
Employers cannot escape the duty to investigate employee complaints. Nor should they want to. Employee complaints can be healthy for an organization. They can uncover problems before they cause significant damage. They can also be a vehicle for increased employee morale and productivity. But the positive aspects surrounding employee complaints can only be achieved with a properly handled complaint process.