July 8, 2015

Have a grievance procedure so dissatisfied employees can express complaintsWhen employees complain, smart employers listen.

I know, the last thing most employers want in their office is a lot of complaining, and we understand the desire to tune it out! But we also know that the only way to solve a problem, and solve it early, before it gets big, complicated, and expensive, is to know about it.

Speaking of knowing, did you know that the law holds you liable not only for things you actually know, but for those things you should have known about, as well? As a business, you can even be held liable for things your managers did, even if you were unaware. That is called strict liability, and it’s not something you ever want to face unless you have a whole lot of “extra” money lying around.

This doesn’t mean you have to act on every complaint from every employee. But you do need to have both a culture that encourages employees to bring you their concerns, and a formal procedure for how they can do so in an effective way. This gives you the opportunity to filter complaints through an appropriate channel, and more importantly, it permits you to immediately address those complaints that put your practice at risk. You also need strong anti-harassment policies as part of your overall employee handbook and company culture.

How do you know which complaints to pay attention to?

The law requires employers to respond promptly and reasonably to complaints about violation of law or policy. This means employees may complain about, for example, sexual harassment, discrimination, not being paid properly, or not being paid equally for the same work. Each of these complaints requires you to take it seriously, and at a minimum, investigate whether there is any reasonable basis for the complaint. Employees can also complain that they are not being paid enough—but that is not a protected complaint, and (as long as you are paying minimum wage or above) it is one you can ignore, at least in the short term.

What kind of grievance procedures give you legal protection?

Even if you only have a few employees, and the only manager is also the owner, you will still benefit from a formal grievance or complaint procedure. Having a formal procedure can mean a huge legal advantage if a claim is brought against you. This advantage is called an “affirmative defense,” and with it, an employee lawsuit case can sometimes be entirely dismissed in the early stages if the employee failed to report their complaint timely and in accordance with your policy.

The actual process you use doesn’t have to be anything fancy. As long as the mechanism provides a method by which employees can present grievances to management on an individual basis, it is acceptable. The best grievance procedures allow employees to discuss their concerns with any member of the management team, not just their immediate supervisor. This is more reasonable, especially if the person who is allegedly doing the discrimination or other inappropriate behavior is the primary manager.

And, ultimately, don’t put form over substance. If an employee is complaining casually to you or coworkers, or you hear that they are considering seeking an attorney, be proactive and direct them to your policy so you can make an appropriate response.

Here are some additional tips to keep your practice safe:

  • Maintain anti-harassment policies that clearly communicate that the employer does not tolerate inappropriate conduct.
  • Have clear procedures for employees to complain of harassment, and encourage employees to take advantage of those procedures.
  • Be proactive in identifying potential harassment liability threats without waiting for complaints.
  • Train supervisors in the do’s and don’ts of personal conduct, and make it clear that harassment or other abuses of authority will have serious consequences.
  • Conduct exit interviews whenever an employee resigns or otherwise leaves the practice, to give departing employees a chance to speak up about any unreported issues. If you learn about a possible issue, you can investigate proactively. If you don’t hear anything new, then this due-diligence step strengthens your case if the employee later comes back with a different story.
  • Take all harassment and discrimination complaints seriously, and take steps to prevent retaliation.
  • Don’t take adverse action against an employee who has recently lodged a complaint unless you have clear, objective justification based on other performance reasons. If you don’t, your actions could be considered retaliation or an unfair labor practice under the National Labor Relations Act.

Most importantly, consider signing up as a CEDR Solutions member! This way, you and your managers will always have an experienced expert available to support you in making sound HR decisions and responding to complaints appropriately. We’re here to help you manage with minimal risk and more confidence.

To get started, or to ask us a question about a complaint situation in your office, just call 866-414-6056 or email info@cedrsolutions.com. This is an area where an ounce of prevention can make all the difference, so contact us today!

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.