Provided by: Judge Ruth B. Kraft
Question:
Dear Judge Ruth:
I am learning a lot from your newsletter. I am confused on the topic of complaints. Why is it considered a good idea to encourage employee complaints? Won’t it automatically put me into a defensive position? And, if employees know that they can speak up, then won’t they gang up on me?
Thanks for addressing.
LG
Answer:
Dear LG,
So glad that you are enjoying the newsletter and thanks for the question. I understand your perspective. Employers are taking it on both cheeks these days, between the economy, increasing governmental regulation at every level, and the need to boost productivity while lowering prices.
It is true that one complaint may lead to another and that, when workers exercise their 1st Amendment rights to speak collectively about the workplace, a light bulb may go on about seeking legal redress. However, I believe that the risk of maintaining a “stiff upper lip” policy and discouraging complaints can be far more dangerous to your company.
In the best of all possible worlds, I don’t think that most employers would disagree with the need for formal internal complaint mechanisms. And, many of you have employee manuals or protocols already in place. But, in addition, there are good reasons not only to adopt such a policy but to encourage workers to actually use it.
Retaliation as a cause of action brought by plaintiffs’ counsel is on the rise and it possible to prevail on this basis even if the underlying complaint is without merit. If workers are encouraged to make internal complaints without fear of retaliation, you may be able to correct a misunderstanding or implement corrective action before they contact counsel, the media or regulatory agencies. Moreover, the best affirmative defense to a retaliation claim is to demonstrate that the employees routinely file complaints and that you follow up by investigating and resolving those issues. If you do not formally record complaints or shove problems under the rug, you will not be able to take advantage of this defense.
Another affirmative defense that has great merit is to assert that the employee’s claim should be barred because he or she did not take advantage of your known complaint procedure. In sexual harassment suits, plaintiff may argue that she did not do so because she believed that you would not have taken remedial action or may have retaliated. If you can demonstrate a pattern of address problem situations and the absence of retaliation, then you will be in a much better position.
For starters, do you have any anti-harassment, anti-discrimination and non-retaliation policy? This is such an important issue that it warrants a separate signoff in addition to inclusion in your employee handbook. Furthermore, so there can be no claim that the employee didn’t quite understand its contents, our new policy is available in a combined English/Spanish version. We have the ability to translate any of our contracts or forms into Spanish upon request. To purchase this form, contact our Contract Administrator, Eileen Wagda, at (516) 747-6700 ext. 312 or at EWagda@Kirschenbaumesq.com.
Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.