One of my employees has made several comments about another employee being a bully. I haven’t witnessed this myself but I take the accusation seriously. What are my next steps?
The legal side of things: Workplace bullying on its own may not be illegal, but it has the potential to get there. If there are things being said or done that could be considered harassment or discrimination, it’s likely a law violation has occurred and you’re in what we call a high risk conflict zone. If you couldn’t tell by the name, this is somewhere you don’t want to be.
As an employer, you’re responsible for providing a safe workplace. This means taking complaints like these seriously and going through the investigation process. Not only does this protect your employee and their safety, but it also protects you legally if things escalate.
Now for the human approach: The first step of the investigation is documentation. Most of the time, employees bring these concerns forward during conversation. Before you do anything else, have the employee put their concerns in writing.
As with any and all investigations, you want to start with asking what the concern is, making sure they give you any and all details they have. Then you go down the line of follow up questions: is this recurring? Who else have you talked about this with? Do you have suggestions for a resolution? We recommend having a designated Employee Concern form for this kind of thing. You can download CEDR’s version here.
Don’t delay the start of the investigation. It’s much harder to address issues if they’re pushed aside from the start. Talk to the employee (in private) the next time they work to let them know that you’re starting an investigation.
This is also a good time to ask if there are any other employees that have witnessed the bullying. If so, you’ll want to have private conversations with them as well and provide copies of the concern form for them to fill out.
The next steps all depend on what you learn. Ultimately, your duty as the employer is to validate any claims, mediate the situation, and issue disciplinary action if necessary. If the investigation reveals harassment or threats, it’s a good idea to reach out to an HR expert to help you with the next steps.
A former employee is asking for a copy of their file. Am I required to provide it? I don’t know if we still have their records on file since it’s been almost a year since they quit.
The legal side of things: Whether or not you have to provide their file depends on state law. Some states allow former employees to access all their records, others only allow them to access certain files, and some don’t grant them access at all. If you’re a CEDR member, you can contact the Solution Center if you’re unsure what your state’s law says.
We know it can be tempting to get rid of files once an employee no longer works for you. With all the paperwork that comes with each employee, the documents can really build up. But state law comes into play here as well. Before you get rid of anything, double check what your state’s record keeping requirements are.
Quick tip: between state and federal law, you’re going to be required to keep things for at least 3 years. So if you’ve been purging records sooner than that, you may be facing some issues. Do away with the need to ever even worry about file cabinet storage by moving to an electronic file system.
You may think you’ll never need the files again, but there have been countless cases of employers ending up on the wrong side of a court case due to incorrect record keeping.
Now for the human approach: Most of the time, providing a copy of the file is the easiest solution, even if your state doesn’t require it. That said, this request can sometimes be a red flag for litigation. This is especially true if the employee left on bad terms or was involved in any protected activity (e.g. made a complaint about working conditions, took medical leave, etc.) before ending their employment.
You might consider asking the employee what their reason is for wanting their employee file. If you get the idea that they may want it for litigation purposes, contact an HR expert. Note that if your state does require that you give them a copy of their record, you have to do so regardless of what their reason is.
I’m unsure about a new employee’s abilities. They’re having trouble grasping some of the key parts of their job. Since they’re still in their probationary period, am I better off just letting them go now?
The legal side of things: Before we say anything else, let’s talk about probationary periods. We know this is a common term and many employers use it to refer to the first few months of employment. The problem is that the term “probationary” can have a different legal definition and an employment attorney could (and would) use it to invalidate your status as an at-will employer. Instead, we like to refer to this time as the “getting acquainted period.”
If you’re considering ending their employment, remember that terminations aren’t risk-free just because the employee is new. You should still protect yourself with proper documentation and best HR termination practices.
Now for the human approach: There’s no black and white answer to your question because only you truly know whether the employee is a good fit or not. Oftentimes, it’s not an easy decision to make. After all, you hired this person because you felt they were capable of filling this role.
Unless the employee has done something (or failed to do something) that simply can’t be overlooked, our advice is to start with coaching. The training period can be difficult for some people. Everyone has different learning styles and being in a new environment with new tools and systems can be overwhelming.
Is there something about the training process that can be improved? Is this their first time in this kind of role/industry? Talk to the employee about the issues you’ve observed and ask for their feedback about what they are and aren’t understanding. We’ve spoken to many employers who were able to avoid having to go through the hiring process again by providing coaching from the start. Make sure to document it!
Of course, if the employee simply cannot get the work done or they don’t have the knowledge needed for this role, it won’t work. As unfortunate as it is, it happens. If that’s the case, having documentation to show that terminating them was based on performance will help protect you.
