No practice or policy can fully insulate your business from an allegedly actionable employment claim. Where accidents, injuries, and disability are involved, insurers often direct the investigation and assessment of coverage before providing benefits. When it comes to employee rights and remedies under State and Federal laws, insurers may not get involved until legal action is taken. In these type claims, employers have the first chance to document and establish facts, mitigate alleged violations, and formulate an appropriate response that may stave off legal proceedings.
Wage and hour concerns, claims of discrimination or retaliation, or claims that mandatory benefits have been denied can leave employers in a quandary about what to do next. These problems occur infrequently and are unanticipated. When they occur, however, having protocols for handling complaints and investigations helps solidify your response as an employer. This overview discusses steps you should consider taking if an employee reports inappropriate or unfair treatment in the workplace.
Steps To Take When an Employee Reports Unfair Treatment in the Workplace
Take preventative measures by keeping employee handbooks up to date. This keeps employees and management abreast of employee workplace rights. It defines both protected and prohibited conduct, and it specifies the consequences of misconduct. When addressing complaints, an updated handbook serves as a reference for discussion and investigation.
Workers most frequently report sexual harassment or workplace discrimination to a direct supervisor. In case a direct supervisor is the alleged perpetrator, your handbook should identify multiple avenues for reporting that allow employees to bypass their alleged harasser. This can be their supervisor’s superior, human resources personnel, or even corporate officers or directors. Any person the handbook identifies should be aware of various types of employment claims and be well-versed in policies for dealing with alleged claims. The following steps are part of the investigative process.
Step #1: Eliminate Barriers to the Reporting of Alleged Offenses
Your internal system for addressing complaints needs to proceed from understanding that the employee’s perception of being heard matters. Literacy, language, privacy, fear, formality, and many other considerations may hinder an employee’s willingness to communicate difficulties at early stages. To encourage early reporting, your policies and practices should create a safe dynamic between the employee and employer that respects employee concerns without discrediting or legitimizing their initial report.
Employer policies and practices should:
- Allow as many verbal and written means of reporting as you can manage.
- Illiterate employees may be unable to file written reports.
- Employees with privacy concerns may not seek out a face-to-face meeting.
- Use technology to allow video, audio, or pictorial reports.
- Be receptive to workers sharing their accounts of what happened
- Document allegations thoroughly with a focus on facts while shying away from employer assumptions, characterizations, commentary, labeling and inferences.
- Date all documentation you create.
- Allow the employee to review and sign where practicable.
- Communicate that allegations are taken seriously, that reporting is the first step, and that a full investigation will follow and may take time.
- Inform your employee that you will communicate significant developments and that the employee is welcome to check in for updates.
Step #2: Investigate and Document
Some employers designate panels of personnel that investigate employee complaints. A diverse investigatory panel provides various points of view and may help employees accept the results of investigations, and a diverse panel may carry more weight in litigated claims. All members should be well-trained on thorough and unbiased investigation techniques that record what witnesses observed directly while separating what the employee learned secondhand. Documenting the source and date of information is crucial to using investigations in contested matters as is a system of maintaining documentation as a business record.
Smaller employers may assign investigatory duties to a single employee, but they should consider outsourcing matters when a conflict of interest may arise. One benefit of outsourcing investigations is that it allows all employees to speak freely. Another is that it insulates a small employer from the negative impact of investigations that find employee complaints are unfounded. Once launched, an investigation should include:
- Ongoing assessment of the scope of the investigation
- An isolated incident could reflect a pattern of behavior by the offending employee against others.
- Hostile environment inquiries may expand beyond one offender to ascertain if job place culture fosters offending behavior.
- Don’t fixate on completion at the expense of relevant information.
- Don’t delay completion by drudging up irrelevant information.
- Confidential interviews with the accuser, coworkers, colleagues, customers, and other potential witnesses
- Obtaining dated written statements signed by the person making it
- Review of written and electronic correspondence, including emails, phone calls, and text messages on work-issued phones or as allowed by company policy.
- Examining and preserving surveillance camera video available to the employer
- Analysis of photographs documenting alleged questionable behaviors
- Checking routine business records like work orders, invoices, or job logs to confirm or refute allegations.
Step #3: Implement Discipline and Corrective Action if Warranted
After a thorough investigation, involved parties should be informed of the resolution of the complaint. These could include the following:
- Separation of employment for confirmed offenders
- Alternative remedy agreed upon by an accuser in a signed writing
- Modification of policies and practices to limit recurrence
If remedial or disciplinary action is needed, employees should be provided a clearly defined conclusion to the investigation
How the Employment Law Attorneys at Anderson Jones, PLLC Can Assist You
Our firm serves as general counsel to businesses and also provides focused services as needs arise. Having a lawyer on retainer helps employers obtain reliable legal information and advice on demand. This includes assisting with licensing issues, drafting employment agreements, ensuring governmental workplace compliance or offering workers’ compensation and Occupational Safety and Health Administration (OSHA) defense, and handling wage and hour cases as well as sexual harassment or discrimination claims.
Our employment lawyers are ready to assist your business with whatever concerns you anticipate or currently have. Contact our law office, Anderson Jones, PLLC, today to discuss your needs and how we can best meet them during an initial consultation.