Don’t get blindsided when an employee comes forward with a complaint.


After a very busy week, you finally have a couple of hours to get to that big stack of “to do” items. Right as you begin to dig in, an employee enters your office and asks if you have a few minutes to discuss a matter concerning a group of coworkers that has made her very upset. You desperately want to tell the employee to come back tomorrow. What should you do?


Ask the employee to come in and conduct an initial fact-finding meeting. And, no matter how busy your are, or what kind of mood you’re in, do not let your “go away instinct” be known, warned attorney Lisa Lavelle, of Patton Boggs, LLP.


The initial meeting with an employee who brings a complaint is a critical stage of the investigatory process, explained Lavelle, who along with attorney Doug Mishkin advised HR professionals on how to effectively handle workplace investigations.


 Three goals of the initial meeting


Even the first few seconds of the initial meeting are crucial as they set the tone for the entire investigation, advised Lavelle. Therefore, when an employee comes to you with a complaint, you must be prepared to respond appropriately. To do so, you must understand these three goals of the initial meeting:


Instill confidence. The first interaction with the employee is the time to instill confidence in your ability and that of the company, to address the employee’s concerns, advised Lavelle. Therefore, before questioning the employee, confirm that he or she feels comfortable that you can reach an impartial resolution. Ask, “is there any reason why you feel I cannot be fair and objective?”


Be ready to respond if the employee expresses doubt over your ability to be fair. You may decide to assign the investigation to someone else. Or, at the very least, you can explore the employee’s reasons for feeling this way. Starting this dialogue may make the individual feel more comfortable.


Identify all issues. The second goal is to identify the issues raised by the employee’s complaint, stated Lavelle. This will help you determine whether the issues can be resolved informally or if an internal investigation will be necessary.  You must listen carefully, as the real issue will not always be what the person bringing you the complaint says it is. For example, an employee could tell you he has a complaint about his recent performance review, and, in response to your questioning, reveal that he and his manager were in a romantic relationship, that he broke it off, and now the manager gave him the bad review as punishment. The issue initially sounded like a performance review problem but is really a sexual harassment problem.


Gather the evidence. The initial meeting is often when the employee will be most likely to share all the facts, suggested Lavelle. Therefore, the third goal of the initial interview is to find out the facts. Ask the “who, what, where when and why” questions. Use open-ended questions as opposed to yes or no inquiries. And inquire as to whether the employee has any documentation that would be helpful to resolving the issue(s) raised, or if the employee knows of any documentation that you should obtain.


A note on documentation . . .


Gathering documents.

Once an employee has brought a complaint to your attention, all relevant documents should be identified and obtained quickly, advised Lavelle. These documents may provide information that will help verify facts, as well as help identify who should be interviewed and what questions should be asked. Throughout the investigation, repeatedly ask those involved whether or not they have any documentation that would be helpful in the investigation.


Who can view documentation? Access to documents involved in an investigation should be limited exclusively to those who have a legitimate business need to know, according to Lavelle. For example: information that is necessary for decision-makers to make a decision;  information that is necessary for people to conduct the investigation or to take action as a result of the investigation; and information that needs to be shared during the investigation in order to obtain more information.


Employee documentation

When an employee raises an issue meriting investigation, you should encourage the employee to provide a summary of the issue(s) in writing. But never force the employee to do so, warned Lavelle, as such a requirement is intimidating and may discourage employees from coming forward with complaints in the future.


If the employee agrees to provide a written summary, ask that it include:


  • a list of all the employees’ issues/concerns/complaints.
  • the relevant facts and dates the employee believes support his or her concerns.
  • the names of people the employee thinks may have information relevant to the investigation.
  • and suggestions for obtaining relevant documentation (such as memos, performance reviews, etc.).


Employer documentation.

Lavelle also suggested providing a memo or letter to the employee summarizing the issues raised. This document will provide both the person responsible for handling the investigation and the employee raising the issue with an opportunity to make sure that all of the issues are clearly understood before starting the investigation.


The confirmation memo should:


  • identify the issue(s);
  • identify the facts provided by employee to support issue(s);
  • confirm these are all issues raised.
  • identify the person investigating the matter and confirm his or her impartiality and fairness.
  • identify a roadmap for investigation; and outline the company’s expectations for the employee raising the issue.


The memo should normally be prepared within several business days. Because it will not always be practicable to prepare this document before proceeding with the investigation, it is not a mandatory step.

6 everyday ways managers will land your company in a lawsuit.

Although the managerial mistakes that have created HR headaches and triggered employee lawsuits are countless, there are just a few common managerial moves at the heart of employers’ legal woes.

Take a look at our top 6 list, and the action advice and policy tips you can use to rein in managers and keep your company out of court.

Mistake #1: Terminating Without Tact

While callous treatment during the termination process doesn’t necessarily translate into a valid legal claim, managers who treat their employees poorly are almost begging for an illegal charge to follow. And, unfortunately for employers, juries often side with the underdog employee against the “big, bad corporation,” whether the management decision was legal or not.

ADVICE: Imbue managers with the need to adhere to the spirit as well as the letter of employment laws during the termination process. In other words, review your termination procedures to make sure they are not only grounded in legal steps, but reflect courtesy and fairness to the employee, as well.

Mistake #2: Mishandling Employee Problems

Dealing with common employee problems can be a sticky wicket for managers. Snap responses to everyday issues often get managers into trouble with their employers and employees, and with the law. For this reason, managers must learn how to deal with employee problems productively and confidently in order to prevent the mistakes that can lead to legal skirmishes.

ADVICE: Put it to practice. Train managers on how to legally and effectively manage problem employees. We recommend you begin with the following legal landmines: absenteeism, drugs and insubordination.

Mistake #3: Straying From Policies and Procedures

Just saying it doesn’t make it so. Spelling out company policies and procedures in the company handbook is just the first level of legal protection. The second step involves putting those policies and procedures into practice. Managers who fail to follow the policies and procedures, or who enforce them inconsistently, can land your company in court.

ADVICE: Review your handbook with managers before they go over it with their employees. This gives you time to iron out any discrepancies between the written policies and their actual practices. Just as you do with employees, get signed acknowledgments from managers that they have received, read and understood the handbook.

If you find that a manager has strayed from an established policy, discipline accordingly. The signed acknowledgment prevents managers from using an ignorance excuse.

Mistake #4: Failing to Follow Harassment/Discrimination Policies

Managers are supposed to lead by example. So if they don’t adhere to harassment/discrimination policies, why should employees? Break this vicious monkey-see-monkey-do cycle in which your managers and employees may be caught up, before a court breaks it for you.

ADVICE: Make it career-centric. Reiterate to managers that part of their performance evaluation will be based on how well they uphold and enforce company policies. Complaints of discrimination or harassment on their watch will count against them in terms of raises, bonuses, promotions and job security.

Mistake #5: Creating a Perception of Retaliation

An employee who files a complaint or returns from a leave of absence and shortly thereafter suffers an adverse employment action is likely to smell a retaliation rat. But what’s considered an adverse action? The answer to that question has left courts divided.

ADVICE: Watch out for the following manager actions that often appear retaliatory to employees and courts alike:

  • Lateral transfers are generally not considered an adverse employment action where there is no loss in benefits or decrease in responsibilities. It’s not enough if the employee merely does not like the new position. However, if the transfer can be seen as a demotion, it might be.
  • Low performance ratings.Sudden and uncharacteristic drops look fishy — unless you have legitimate proof that they are justified. Also beware managers holding employees to higher standards or stricter levels of scrutiny than co-workers.
  • New work assignments.A change in work assignments typically will not constitute an adverse employment action if the employee retains his/her same shift, benefits and pay, and the new assignment is consistent with previous job duties. Singling an employee out for grunt work or menial tasks, or giving an employee a heavier workload for no apparent reason, however, could be considered retaliatory.
  • Doling out discipline.Okay: discipline that is deserved. Filing a complaint does not shield employees from the consequences of any subsequent misbehavior. Risky: issuing harsh discipline for minor infractions or disciplining an employee for infractions that others are allowed to get away with.

Mistake #6: Failing to Understand the FMLA

Managers are usually the first to know about employee absences and must make decisions about attendance-related issues. Without proper knowledge of the FMLA, it’s easy for managers to run afoul of the law.

ADVICE: Manager training on FMLA leave should focus on these problem areas:

  • Notice requirements
  • Eligibility requirements
  • Attendance policy
  • Reinstatement requirements