HR 101- EMPLOYEE COMPLAINTS - PowerPoint Presentation

HR 101- EMPLOYEE COMPLAINTS

Presented By: CAROL S. PETITT 7500 West Highway 146 Pewee Valley, Kentucky 40056 502-243-9797

Oh NO !.....Now What ?

From 2018, these are the Top 10 issues that employees bring to HR: 1. Interpersonal challenges with their managers and/or coworkers Examples: My boss is really snippy with meJohn is rude and mean to meJill plays her music way too loud 2. Payroll and benefits questions and problemsExample: "What are all these deductions from my paycheck? 3. Issues relating to their goals, objectives and performance evaluationsExample: "I don't think my second quarter objectives are fair compared to others. Nobody else in my department has to hit all these bars." 4. Problems with roles, job titles and pay levels Example: “My job title does not match my duties or responsibilities and I need to be reclassified.") 5. Issues relating to paid and unpaid time off Example: "I want to take two weeks off in July; or “I requested time off around Christmas first”

6. Internal transfers and career advancement Examples: “I see that a position has just been posted…Should I apply ?” “Can you look at my resume and give me your opinion if I meet the qualifications?"7. Work/life balance questionsExamples:“I know our hours are 8:00-4:30, could I work from 7:30-4:00 so I can leave for my child’s ballgames or school activities ?” Or “ I have to leave exactly at 4:30 if the meeting is running long.”8. Personal issues Example: Counseling Substance abuse issues Physical or medical issues 9. Problems with real or perceived discrimination or harassment on the job Example: Perceived discrimination may be based on Racial, Gender, Sexual orientation, Religious or Disability Harassment may be Sexual, Physical or Hostile work Environment 10. Attendance and other policy issues (Example: “I am here promptly at 8:00 and don’t leave until 4:30 and my supervisor lets John or Jill show up or leave whenever. It's not fair. “

Workplace investigations typically start with an allegation. Perhaps an employee makes a complaint about another employee or manager. Or perhaps he or she advises of an employee harassing another employee. Regardless of the specifics of the allegation at hand, there are some steps that conscientious employers should always take at the start of the process. Having a workplace investigation plan, policies and procedures ready before you need to conduct and investigation, it is one of the keys to success and to minimize the possibility of this…

As we go through this, you are going to see the following words on several slides: Document Document Document Document Document Documentation is important for evaluating employee performance–good or bad–and managers/supervisors should get comfortable documenting all types of employee interactions. Having solid documentation can protect you by: Providing a paper trail in the case of an employee lawsuit. Supporting the decisions behind every employee action you take–including why some employees are promoted and others are fired, as well as who receives a raise and why. Giving a concrete timeline of employee behavior and progressive disciplinary action.

So, it is Thursday afternoon, and there is a knock at your door, and one of your employee walks in and says, “You won’t believe what happened, can we talk ?”

1) Who is bringing the Complaint ? The first thing to do depends on who is bringing the complaint. The actions will differ depending on whether the person making the allegations is the victim, a concerned but uninvolved party, or an anonymous source. If the allegations are made by a concerned party who is not the alleged victim of the harassment, get the following information: Who is the alleged victim(s)? Who is/are the alleged bad actor(s)? How did the concerned party get his or her information? (i.e. Did he or she observe the behaviors? Did someone tell him or her about what was going on? If so, who told him/her?) What exactly are the behaviors at issue? Over what period of time have the behaviors occurred? Are there any witnesses to the behaviors? Who are they? Document Document Document Document Document Document Document Document

If the alleged victim makes the complaint, get the following information: Who is/are the alleged bad actor(s)? Are the bad actors employees or third parties such as vendors, consultants, general public What exactly are the behaviors at issue? Over what period of time have the behaviors occurred? Are there any witnesses to the behaviors? Who are they? How would he/she like to see the problem resolved? If the allegation comes from an anonymous complaint, then there is often no way to follow up for more information. As such, the main thing you’re able to do is decide how much of an investigation can or should be conducted based on the limited information you were given. But be sure to treat anonymous complaints as seriously as any other allegations. DOCUMENT DOCUMENT DOCUMENT DOCUMENT DOCUMENT DOCUMENT

2) Determine what the Complaint is About When deciding whether to investigate an employee complaint, the first step is to consider the allegation type. Serious incidents that involve legal or ethical issues should always be investigated in as prompt a manner as possible. Examples of these may include: Harassment DiscriminationRetaliationWrongful terminationEthics and compliance breachesOther illegal conductHealth and safety concerns As a general rule, if the case could go to court, you should investigate it.On the other hand, minor complaints that might be classified as an annoyance or an inconvenience can usually be resolved informally and don’t require a full investigation. For example, if an employee complains about the temperature of the office or that their cubicle neighbor talks too loudly on the phone or leaves their radio on, you can probably find alternative resolutions to a formal investigation. Document Document Document Document Document Document Document Document

Sometimes you just have to listen

It May Be Necessary To Provide Interim Protection Depending on the nature of the complaint and the possible severity of the conduct such as physical threats or conduct, there may need to take immediate measures for the protection of the accuser or the alleged victim. Separating the alleged victim from the accused may be necessary to guard against continued harassment or retaliation. Actions such as a schedule change, transfer or leave of absence may be necessary; however, complainants should not be involuntarily transferred or burdened.These types of actions could appear to be retaliatory and result in a retaliation claim. The employer and the accuser must work together to arrive at an amenable solution. Before taking any such actions, it is advisable to seek legal advice first.

It would not be training without some law

Once have determined whether there is a substantive complaint that involves something more than just a just annoyance type grievance, the next step in the process is opening and conducting an investigation. Courts have held that failure to investigate a valid complaint can amount to discrimination.

SAFE HARBOR The law does offer safe harbors, however–policies and procedures that, if properly followed, may be taken as evidence that the complainant and the subject of the complaint were treated fairly Faragher v. City of Boca Raton, 524 US 775 ( 1998) and Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998) are two S Supreme Court cases from 1998. In these cases, the court ruled that employers may not be found liable for hostile workplace harassment under three conditions.1) Determining that the complaining employee did not suffer an adverse action in their employment, for example a demotion or firing. 2) Determining that any harassing behavior was promptly remedied. 3) The third condition is the one for which the Faragher/Ellerth defense is best known: the complaining employee did not take advantage of established reporting procedures that would have given their employer an opportunity to remedy it. In short: since you didn’t tell us, how could we have known?

This third condition is a good reason to have a harassment reporting procedure in writing in an employee handbook. The procedure requires employees to take a complaint of harassment to a supervisor or the human resources department or, if the employee feels necessary, to someone of higher rank than their immediate supervisor. An employer can further protect itself by having employees sign acknowledgments that show they received a copy of the reporting procedure. (DOCUMENTATION DOCUMENTATION DOCUMENTATION) In addition to a properly worded reporting policy and a means of making sure that employees know what it is, an employer should also have established policies and procedures for what comes next: an investigation.

West v. Tyson Foods, 374 Fed. Appx. 624 (6th Cir. 2010) A Federal District Court in Kentucky upheld a jury's award of damages, including punitive damages, in a sexual harassment case because the jury reasonably found that the employer knew of the harassment and failed to take appropriate action to remedy it.. In this case, the employee provided evidence that she was harassed by her male coworkers hundreds of times during the first few weeks of her employment. She also provided evidence that when she complained to her supervisor, she was told initially that she should understand the conduct because of her attractive physical appearance, and then was told not to complain to the human resources department.After several subsequent incidents of harassment that included physical contact, the employee did not return to work and was fired for job abandonment. When she later met with the human resources manager and described the incidents, the human resources manager took extensive notes, apologized repeatedly, and told the employee he would investigate her complaint. The investigation was never conducted, and the manager's notes were never found. In affirming the jury award, the court concluded that there was sufficient evidence to support the awards, which totaled over $1 million dollars.

Beginning the Investigation

The best way to conduct an investigation is according to procedures laid out in a prepared manual or as set out in an adopted policy. If an investigation is conducted pursuant to a policy, then the policy MUST be followed. If a complaint finds its way to a courtroom, an employer can show that it acted in good faith by following a proper procedure. Here are some do’s:

1 st Thing to Remember: Document Document Document Document Document Document Document Document

Do keep a record. Record and memorialize the date you received the complaint, the details of the complaint, and the dates on which investigative actions were taken until the complaint was resolved.

# 2 FOLLOW YOUR POLICY AND PROCEDURES Employees should be advised through either a handbook that they have signed, annual training where they sign an attendance sheet or a poster in a clear and visible location of: A clear explanation of prohibited or unacceptable conduct; An assurance that employees who make a complaint of harassment or provide information about a complaint will be protected;A clearly described complaint process;Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; The establishment of a complaint process that provides a prompt, thorough and impartial investigation;Assurance that the employer will take immediate and appropriate action if it is determined harassment or actionable conduct has occurred.

The Interview

Stay impartial Notes may appear as evidence in court later, so they should be free of editorial commentary, and they should not be edited or “tidied up” after the fact. Interview notes should also not make recommendations . Under KRS 61.878, once a final agency decision is made, comments or recommendations lose their preliminary status, and become subject to an Open Records Request. The investigator may begin a timeline of events, prepare a list of people to be interviewed, and set a desired completion date for the investigation. The investigator should be impartial. They may be a manager, member of the human resources department or an outside investigator.

Be honest The interviewer should be candid with the interviewees. The interviewer should not make promises, say that any conclusions have been reached, or make threats. The interviewer should also be honest about whom they represent or what their title and duties are. The interviewer should let those being questioned know that they may end the interview at any time and allow the individual who is being questioned to supplement the interview or provide additional documentation after the interview.

Before beginning the interview, decide if you want to record it, and ask the employee if they object. If you record the interview, to be consistent, record all other interviews going forward. The law in Kentucky is that as long as one party knows the conversation is being recorded, it is permissible to record a conversation. ASKING UP FRONT, MAY ALLEVIATE THIS ISSUE AND GETS THE ISSUE OUT IN THE OPEN.

Depending on the nature of the complaint and the employees involved, it is safe to assume that there will be “water cooler” talk. As an investigator, it is extremely important to keep the investigation as confidential as possible. Use a private room where privacy and confidentiality may be maintained. Try to schedule a time that does not disrupt the normal work routine or when there is a lot of traffic in the area. The person conducting the investigation should be good at taking accurate notes. This is because often, people are more forthcoming if they are not being recorded. If a recording device is used, however, every recording should begin and end with a recitation of the time, date, persons present, matter under discussion, and a statement of consent to be recorded.

Interviews start following the complainant. The investigator may ask open-ended questions, such as: “In your own words, what happened?” and use follow-up questions to try to ascertain dates, times, and other specifics. Some additional questions to ask should address whether anyone else can speak to the alleged conduct. “Was anyone else there?” “Do you know of anyone else who may have been involved?” “Do you know of anyone else who may have relevant information?”

Ask the employee to detail the complaint. Listen to the complaint carefully and objectively. Get as much specific detail as possible. For example, if the employee is complaining about sexual or physical harassment, you would need to know exactly what happened, who was involved, the date and time of the occurrence, where it occurred, under what circumstances, and if were there any witnesses. If the employee is very vague, the problem may be different from what is initially stated. Active listening and probing will often get at the real concerns. Be a fact finder and not argumentative or take sides but be empathetic and reflect that you are taking the complaint seriously. Sometimes, just listening with sympathy and understanding will eliminate a problem or to make it one the employee can live with.

Get agreement on the substance of the complaint.  An employee’s complaints may contain both facts and opinions. Try to separate the facts (what actually occurred) from opinions (the person’s belief about what happened). For example, John may complain that he is be picked on and getting hard or difficult assignments or tasks. Obviously, that is his opinion which is why he had brought the complaint. To determine the facts, you will have to review the work assignments to find out how many times John was given that assignment and how many times others were. Making as clear and simple a statement of the problem as possible and having the employee agree that you understand the concern will aid and guide the investigation going forward.

It may be beneficial to ask the employee for suggested solutions. When it is clear exactly what the problem really is, ask the employee how he or she thinks the problem could be resolved. The remedy suggested may not be realistic or appropriate, but you need to be clear about what the employee wants. Sometimes a solution will be obvious. In other cases, you will need to check on the facts and on your policies. You may need to check on departmental or agency records, schedules, union contracts, personnel rules and policies, previous decisions, and conduct further fact-finding conversations. Make sure the employee knows what you will or will not be able to do. If it’s within the scope of your authority to give an answer, do so in precise, understandable terms. Public flogging or is not an option.   Depending on the nature of the complaint, a follow-up status meeting may be a good idea to keep the person who brought the complaint informed that the complaint is being thoroughly investigated and taken seriously.

As far a sequence of the interviews, the next interview does not need to the person accused of harassment. If there are witnesses who have been identified, it may be beneficial to develop the facts before meeting with the person being complained about If a list of witnesses has been prepared, the witnesses may be interviewed in the same impartial manner and advised if the interviews are being recorded. As this is going on, the timeline may be filled in and a summary of agreed-upon facts prepared. As this process continues, the need for second interviews may arise as different accounts are compared. Every interviewee may be asked to provide evidence such as e-mail, texts, and other documents. The investigator may keep things on track by asking those interviewed to stick to specifics. Some other questions to ask include: “What did you say/do at the time?” “Did you speak to anyone about it?” (including doctors and therapists).

When that person that the complaint has been made against is ultimately interviewed, this person should be told why they are being interviewed and asked the same type of questions as the complainant. “What happened?” followed by questions specific to times and places. Also they should be asked to identify any witnesses or persons who may be aware of any information relevant to the complaint. As the process continues, there may be the need for second interviews especially as different accounts are compared.

Gather Evidence Gather any documents and records that may be relevant to the investigation. These documents can help fill in gaps in the timeline, fill holes in witness statements, and establish witness credibility. County owned and issued computers, laptops, cell phones have NO expectation of privacy.DOCUMENT DOCUMENT DOCUMENT

In Other Words, Be Quick but Thorough It’s critical to investigate an allegation quickly especially if there are threats, harassment or physical aggression involved. As time goes by, it will become more difficult to collect evidence and get witnesses to talk. Details are forgotten. Documents disappear. Bad behavior continues which makes it look like the complaint was being ignored or not taken seriously which could have monetary consequences in court. AND DOCUMENT DOCUMENT DOCUMENT

Reach a Conclusion Ultimately, the investigator must weigh the evidence, evaluate the interviews and put the pieces together in order to conclude whether policies were violated, or misconduct occurred.

Make a reasonable, good-faith decision Finally, after reviewing the evidence collected in the interview, the employer must make a decision on what action to take, put in writing, and include it in its investigation report. The law frowns on doing nothing. Additionally, the decision must be reasonable. While it may be possible to resolve the issue with some training and memoranda, a good-faith investigation may end with one party’s credibility in better shape than the other’s, with attendant consequences. However, employers cannot shy away from making a reasonable, good-faith decision simply because an employee’s reputation may suffer without possibly losing safe harbor protection.

INVESTIGATIVE REPORT Every report should include: The incident being investigated, with dates. The individuals involved.Key factual findings and credibility determinations.Applicable employer policies or guidelines.Summaries of witness statements.Specific conclusions.Recommendations based on existing policiesThe name of the person making a final decision.Issues that couldn't be resolved.Employer actions taken should be added to file to memorialize the conclusions AS NOTED: DOCUMENT DOCUMENT DOCUMENT

After the report has ben prepared, the report should be submitted along with the the findings to the decision-maker appointing authority who typically is not the investigator, who then will determine what disciplinary action to take. This is still a preliminary document at this time. There is a benefit to using a third-party investigator who is an attorney and has been retained to do the investigation because of the attorney-client privilege. Once a decision has been made, the employee who made the complaint should be notified that action was taken—even if details can’t be shared for privacy reasons.Implement disciplinary measures if needed. Reintegrate the employees involved back into the workplace if possible, shifting focus from the complaint to any changes that the investigation has brought about.Remind managers/supervisors and other employees if necessary that retaliation won’t be tolerated and monitor to make sure none has occurred. It never hurts to do a post-mortem to review the investigation to determine what could be done better or differently the next time. Look for patterns in complaints that might suggest more training is needed to avoid similar problems in the future. Conduct additional training or revise policies if required.

Resolution and Discipline

RESOLUTION AND DISCIPLINE The investigation has been completed and it has been determined that the complaint had merit and that there has been a violation of policy or that the employee’s conduct was improper and violated workplace standards and constitutes harassment, what discipline is available ?

What does the Policy say? A policy should: 1. Define purpose of the disciplinary policy to promote a culture where staff employees and supervisors may engage in constructive conversations regarding job performance or work-related conduct with a shared objective of improving unsatisfactory job performance or correcting unacceptable work-related behaviors. 2. Distinguish between Job Performance and Personal Conduct a. Job performance is generally understood to include issues related to the quantity or quality of work produced. b. Personal conduct is generally understood to include work-related behaviors that are disruptive to the work environment or adverse to the Department’s interests. 3. Establish commitment to Progressive Discipline and set forth those steps.

Progressive discipline is generally defined as a process for dealing with job-related behavior that does not meet expected and communicated performance standards. The primary purpose of progressive discipline is to assist the employee to understand that a performance problem or opportunity for improvement exist…….It also documents a record of conduct

Progressive Discipline Steps Counseling – An opportunity for the employee and the supervisor to informally discuss work-related problems and concerns. This may be appropriate when a complaint is one of general annoyance and may be a preemptive step from a “mole hill turning into a mountain.” The counseling session is designed to help the employee: Recognize the issue. Accept there are expectations concerning appropriate workplace conduct. Clarify expectations and standards. Counseling may also involve required training.Understand the consequences of failing to meet the standard. The counseling session should be documented with a memo to the administrator’s employee desk file.

Oral Reprimand – Used to get the attention of the employee while the situation is still correctable. The primary purpose of this step is to alleviate any misunderstandings and to clarify the direction for necessary and successful correction of the problem. An oral reprimand should: • Clearly indicate the nature of the problem, cite the work standard, rule or policy governing the situation, and explain precisely what corrective action is expected. • Point out that future behavior of a similar type may result in more serious disciplinary action. • Must be confirmed in writing, clearly defined as an “oral reprimand” with a copy placed in the employee’s file to document the issue . • Advise the employee that a copy of the reprimand will be placed in his/her personnel file.

Written Reprimand – Utilized when prior counseling sessions and/or the oral reprimand have not resulted in satisfactory changes of behavior. A written reprimand may or may not be preceded by an oral reprimand, depending on the type of violation. A written reprimand should: • Include a review of prior disciplinary action taken. • Notify the employee of the specific work rule or standard being violated. • Place the employee on written notice that corrective action must be taken. • Base the written reprimand on facts and information of record as opposed to hearsay and unfounded conclusions. • Have the employee sign the report as a receipt • Keep a copy in the employee’s personnel file to document the issue .

Suspension or Demotion SUSPENSION • May be used when the employee has not responded to counseling, oral or written reprimands or commits a more serious rule violation that warrants suspension for a first offense. • Suspensions may be with or without pay. • Suspension Pending Investigation – Examples of situations where the employee may need to be removed from the work-place before an investigation can be conducted may include sexual harassment, disorderly conduct, or other situations where the employee presents a potential threat to other employees. • A suspension, pending an investigation, is imposed with the understanding that a final decision relative to the appropriate disciplinary action will be made after the investigation. • If there is no cause for disciplinary action, the employee will be able to receive pay for the regular earnings lost during the suspension.

DEMOTION • Disciplinary demotions may be in the form of reduction in rank, reduction in pay, or both. • Demotion in rank refers to the removal of an employee from their present position to one of less responsibility. This concept is based on the premise that management has the right to promote and grant merit increases to employees. Therefore, if the employee’s performance does not continue at the same level as when he/she was placed in the position, they also have the right to take away such benefits.

Termination If all previous steps of the disciplinary process have been unsuccessful, the employee may ultimately be terminated from employment. •Certain violations may warrant immediate termination. • Because this step is severe, there is the probability that taking such an action will result in a grievance, appeal, or possibly legal action, it is important that employee dismissals not be done in a knee jerk fashion and only after a thorough investigation with documentation of the conduct and all of the progressive disciplinary steps. • The investigation should confirm that: The employee did, in fact, commit the act; Substantial evidence establishing the conduct; The employee was aware or should have been aware of the consequences of the act; The employee’s entire work record, good and bad, has been considered; The same rules are applied uniformly to all employees; There are credible witnesses to corroborate the conduct; and The penalty of dismissal is reasonably related to the seriousness of the offense.

If a government/public employee is going to be terminated, it must be done by the appointing authority. Checklist for lawful terminations to minimize the risk if challenged: Was there a clear violation of a rule, policy or established standard of conduct; Was the employee informed of the complaint or allegations; Were procedures of policies followed; Do you have adequate written documentation; Have there been a THOROUGH INVESTIGATION WITH DOCUMENTATION; Has the employee been presented with an opportunity to present their side of the story; Is there a documented record of progressive discipline; Was the final decision consistent with previous investigations; The employee is informed of the reasons for the dismissal with each incident or offense identified with names, times and dates given when possible.

10 Common Investigation Mistakes Failing to plan. Ignoring complaints. Delaying investigations. Losing objectivity. Being distracted during interviews. Using overly aggressive interview tactics. Not conducting a thorough investigation. Failing to reach a conclusion. Failing to create a written report. Failing to follow up with those involved.

INVESTIGATION DON’TS Don’t delay or fail to complete an investigation. Once a complaint is made, the clock starts ticking. If nothing happens after a complaint is made, a court may likely to draw unforgiving conclusions. An investigation should also come to an end promptly, or a court may infer that the investigation was deliberately left unresolved. Don’t make the complainant jump through hoops. The reporting procedure should be simple. It need not require a written statement or even the continuing cooperation of the complainant. Once a specific complaint is made, an investigation should begin. Don’t fail to conduct an honest investigation. Even if the complaint seems questionable, the employer is better off conducting an investigation. Ask for documents and electronic communications. Interview witnesses. Check attendance, surveillance, calendars, computer records, and so on. Obtain all the pertinent evidence and review it. Don’t leak. It is important to maintain confidentiality. The complainant, witnesses, and the person accused of misconduct should be able to present their evidence without worry that you will tell others. Keep in mind that employees may not be obliged to keep quiet, so while word may get around, it should not come from you.Don’t retaliate. Retaliation is a separate violation of the law.Don’t fail to reach a conclusion. After making an investigation, the employer is obliged to do something, even if the evidence does not go beyond “he said, she said.” Make a determination of what happened based on what evidence you have, including the credibility of the parties, and act on that determination.

Conclusion As the focus nationwide on harassment complaints continues to gain more notoriety, employers in both the public and private sector must be prepared to respond to and protect themselves from claims within their workplace. This preparation includes having a written reporting policy and well-established investigation procedures. The old saying goes, “To be forewarned is to be foretold” by being prepared and having policies and procedures in place, an employer can take advantage of safe harbor rules that limit their liability from harassment claims, and to keep a harmonious and productive work force with out being hamstrung by potential hostile work environment issues which will be discussed in the afternoon session.