We are trying to take a positive, proactive stance on preventing lawsuits. What would you recommend for setting up a complaint resolution program that will head off suits and complaints to government agencies? — Maria T., HR Manager in Barstow
The adage “what you don’t know can hurt you” definitely applies to HR. Employers ignorant of brewing workplace disputes can be blind-sided by lawsuits instigated by unhappy employees or former employees. For that reason, we highly recommend a robust internal complaint resolution process that positions employers to resolve disputes proactively and prevent many employment related lawsuits.
Proactive Approach Means an Informed Approach
Despite efforts to develop a positive and professional work environment, every company will see its share of conflicts and misconduct. To nip these problems in the bud, you need to know about the problems in the first place. Unfortunately, numerous obstacles can stand in the way:
- Supervisors or managers who possess the authority to intervene, investigate, or resolve problems may be unaware of problems occurring “in the ranks.”
- Line managers may fail to refer problems to HR or senior management, fearful that any problems they acknowledge will reflect poorly on their management skills.
- Overworked or inexperienced managers may transfer or even promote a problem employee to avoid the challenge of managing troublesome behavior.
- Managers and employees alike may be confused about which issues they may or should report, how to report them, and to whom.
- Employees who are directly involved may not report problems out of fear of being seen as a “troublemaker” or being retaliated against.
- Other employees may be uncomfortable about getting a co-worker into trouble or being labeled a “rat,” or they may just want to avoid becoming embroiled in a workplace conflict.
- Finally, managers and employees alike may lack the basic confidence that, if they step forward to report a problem, the company would be able to intervene in a fair, discreet, and effective manner to resolve it.
Breaking Through the Deadlock
To adopt a proactive approach that minimizes employment-related litigation by resolving problems early, set up a complaint-resolution process that helps to break through the obstacles listed above and positions the company to effectively resolve questions of possible misconduct internally. Done well, your program will typically have the following interrelated components:
Clear Behavioral Ground Rules
It is important to implement an array of policies that spell out the “rules of the road” for conduct within the organization. Clearly articulated standards regarding appropriate workplace behavior not only enable employees to conform their conduct to company standards, but also allow employees and managers to easily identify reportable misconduct that violates company policy.
Policies should cover the gamut of potential problem behavior: discrimination and harassment; retaliation; conflicts of interest and unethical business practices; breaches of confidentiality and trade secrets; workplace violence; drug and alcohol use; unsafe practices and conduct that violates specific quality assurance or industry standards.
These policies should encourage the reporting of perceived or suspected violations, and must contain strong assurances of nonretaliation to those making a complaint.
Multiple Reporting Avenues
Next, identify clear avenues through which employees can report suspected misconduct or issues of concern. For example, you might encourage employees to report perceived discrimination by their supervisor to the supervisor’s direct superior or to HR. An employee might be asked to report a threat either to security or to HR. The key is to facilitate the reporting by providing more than one person to whom an employee may make a report. Where required by statute (for instance, financial irregularities reportable under the Sarbanes-Oxley Act), the employer should implement a method for reporting suspected problems on an anonymous basis. Moreover, persons designated to receive reports should be trained about what their role and responsibilities will be when they receive a complaint.
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Clearly Defined Procedure for Handling and Resolving Complaints
Finally, you need a clear and predictable process for referring up the line, managing, and resolving reported or suspected violations. Developing this process typically requires close work, negotiation, and coordination among the various sectors within your organization responsible for misconduct and governance issues, such as HR, in-house legal, and finance.
The exact nature, scope, and workings of the response and resolution mechanism will vary from organization to organization. However, successful mechanisms will have the following basic components:
- As noted above, clearly designated personnel trained to handle initial reports of suspected misconduct or policy violations.
- A system for referring complaints to persons ultimately charged with investigating possible misconduct and breaches of policy. A company will benefit from creating a clear system that details when a complaint will be communicated to HR, to legal, to a public company’s audit committee, and so on, so that appropriate personnel may become involved in investigating, managing, and resolving the issues at hand.
- A mechanism for coordinating complaints that raise issues under multiple policies. For example, when an employee alleges both accounting irregularities (often handled by an audit committee) and sexual harassment (often within HR’s purview), your process should ensure clear lines of responsibility and a coordinated response. To contend with the challenge of complex complaints, some employers charge a “complaint handling committee” with screening and assigning complaints to appropriate personnel.
- A means of effectively, fairly, and discreetly investigating suspected misconduct or policy violations, either using internal personnel or outside independent investigators. Put careful thought into whom you will charge with investigating complaints. Ensure that the person brings the necessary skills, experience, neutrality, and credibility to the process of determining facts that often carry significant legal and practical consequences.
- Designation of members of management responsible for issuing recommendations regarding, or for deciding, appropriate discipline following investigations that reveal wrongdoing. Depending on the type of violation and the organization’s internal workings, such persons may include HR management, in-house legal, or members of executive management.
- A guideline for effectively communicating investigative findings to the complainant, accused, and others directly affected by underlying facts. The company should try to find a way to communicate findings that will provide adequate information and closure to affected parties. In some cases, subsequent follow-up with the affected parties may also be advisable.
- Centralized recordkeeping designed to ensure that the company keeps on top of problems and issues occurring across departments and over time.
Employee Communications and Training
Finally, a campaign of employee communications and training will buttress the above complaint resolution process by ensuring that employees acquire an adequate awareness and understanding of policies governing standards of conduct and the means the company has adopted to ensure the proper reporting, investigation, and resolution of complaints.
No company is immune from misconduct and conflict. However, an employer can position itself to resolve problems before they escalate into litigation by implementing clear policies that set appropriate behavioral standards, encouraging the reporting of problems to designated personnel, and equipping the company to effectively examine and resolve questions of possible misconduct.
Rebecca A. Speer, Esq., is founder and principal of Speer Associates/Workplace Counsel, an employment law and employee relations consulting firm in San Francisco.