Whistle-Blower and Retaliation claims are more popular than ever. In fact, they’ve taken over the top spot among EEOC filings, passing race discrimination, the long-time leader. I’m not sure what the 35,000-plus EEOC retaliation claims each year means for society or for those of us working toward the elimination of unlawful discrimination in the workplace. However, reading that these claims cost U.S. businesses in excess of $400 million each year before taking into account the emotional and lost productivity toll, I thought I would share some practical advice to help your clients avoid these claims. Before getting to this advice, I should note that it is not a cutting-edge new discovery. While I’ve been touting it as my own approach, developed from a long 17.5 years of experience as an employment lawyer, I recently learned that it mirrors advice given – for free - on hundreds of websites such as ZenHabits.net and which apparently even predates the Internet (circa 6th Century). I discovered this while preparing for an overly dry webinar for employment lawyers. Concerned that I wouldn’t even know that the webinar listeners were asleep, I searched for some interesting quotes and generalizations to bolster my advice. What I’ve learned is that most people know what I’m teaching. The statistics and my practical experience suggest, however, that few follow it.
So, here it is – How to Receive Employee Complaints.
- Listen. Hear what’s being said. Think before you react. (Call counsel if you need to.)
- Receive the criticism or complaint openly and positively and thank the person for bringing the issue to your attention. (The fact is that employers are significantly better off knowing what was bothering an employee than having the person think badly, talk badly, or file a claim without talking. Also, receiving complaints well makes others, with perhaps even more meritorious complaints, trust you with the information.)
- Learn from it and find a way to turn into a positive. (Even if after careful thought and a positive response you determine that the complaint is absurd and possibly even in bad faith, learn from it, and use it to show others how you respond to complaints, and look for ways you could have avoided and will try to avoid future issues.)
- Be the bigger person. Put it away. (After responding thoughtfully, close the issue in a manner that gives the employee confidence that the complaint or concern will not reflect negatively on the employee later, and document your actions. Never hold it against the employee.)
No one likes to hear complaints about themselves, their businesses, the way they talked to someone, the way they did something. However, complaints do have value and can cost significant amounts if mishandled. Help your clients recognize that if they respond the Zen way, they may save a lot of money and work toward improving society at the same time.
Part 2 of this advice is to teach clients how to ensure that later employment decisions are free of unlawful motives – and keep the evidence to support it. This can be accomplished through awareness and training. Employers need to be able to recognize complaints that involve protected characteristics (age, race, gender, marital status, disability, etc.) and protected conduct (filing a claim, objecting to unlawful activity, cooperating with investigating agencies, etc.). Employment decisions should be reviewed to ensure the absence of unlawful, or retaliatory, motives. Finally, employers should document their actions and motives consistently and clearly so that they have evidence of their lawful actions in the event they need it later.
Complaints regarding this article will be received with joy. Please email them to JJung@jud12.flcourts.org
Kim Walker is a Board Certified Labor & Employment Lawyer and Shareholder at Williams Parker. Kim can be reached at email@example.com.