Employee Complaint Investigations: What Human Resources Won't Tell You
Workplace Investigations: Observations From An HR Insider
Are you an employee who has been accused of workplaced wrongdoing? Alternatively, are you thinking about filing a complaint with your HR department or corporate compliance hotline? If so, you may not have a practical understanding of what goes on behind the scenes. This is especially if you have never been involved in an internal complaint investigation.
While all companies have different processes for managing complaints, here is a list of key observations, based on my years as a corporate HR Investigator.
Following the list, I've included specific advice about how to file a complaint against a coworker, customer, vendor, or manager.
What I Will Discuss
- Tips and observations about employee complaint investigations based upon my experience as an investigator in corporate human resources.
- Specific tips for how to file your own complaint against a coworker, customer, vendor, or manager.
- What to do next if your complaint isn't successful the first time.
Highlights of the Employee Complaint Process
- Be clear when describing the issue that prompted your complaint. Human Resources codes each case (discrimination, sexual harassment, etc), and it's important that your case gets the right code so it gets the proper attention.
- If you don't feel you're getting good service from your HR investigator, find out more about them, in a low-profile manner, and document your communications with him/her. With sufficient reason, you may request another investigator.
- Ask upfront for an estimate of how long the case should take to resolve and arrange for periodic updates. If you don't hear anything, check in.
- Watch the tone and content of emails you send to investigators. They are likely keeping records of their communication with you. Be responsive to questions and don't change your story.
- Ask clarifying questions if the company tells you to keep your matter confidential, particularly if you are a nonsupervisory employee. Who are they specifically forbidding you from discussing the matter with? (The National Labor Relations Board has ruled that companies cannot automatically request that employees refrain from discussing the matter with other employees.)
- Keep documents, details, and witnesses to support your claim.
- If you have a lot at risk related to your complaint, consider consulting an attorney.
- Your relationship with the HR investigator is a business one. Treat it as such. They are not there to be your friend.
How the Complaint Process Works
You're in the Database
If you are assigned a case number, your complaint was probably entered into a computer database. The company tracks case details such as name, job title, and contact information for the complainant, Person Complained About (PCA), and any named witnesses.
Additionally, the computer record captures a summary of the allegations you made. It can be pulled up years later. Who can access it now? Well, plenty of interested parties.
Who Is Informed About Your Complaint?
You trust HR to share your complaint with key personnel on only a "need-to-know" basis. But here's the kicker: because executives desperately want to know about compliance and people issues that affect their department, this "need to know" list can become quite extensive.
Too many people may be in the loop when HR is unable to effectively push back against unnecessary requests from nosy executives. Depending on the nature of your complaint and the politics in your organization, the distribution list can include a long list. This includes executives both inside your department and out, plus employees in the Law department, personnel in Audit, Finance, IT, Security, Compliance, and multiple layers of HR. That's a lot of inquiring minds crawling all up in your confidential business!
Who Else Shares Your Complaint Issue?
If only you knew how many complaints mirror your own! The truth is: you're probably not alone, although it can sure feel that way.
HR tracks, counts, and reports on complaint data, and they typically use a labeling scheme to code allegations (e.g., theft, sexual harassment). This permits data analysis on large numbers of complaints. For example, the company may look at trends in the number and types of discrimination cases for this year versus previous years.
Of course, how HR codes your case is important. Hopefully, you were very clear about what issue prompted your complaint. Why is that important?
Why Your Complaint's Code Is Important
In the face of significant pressure from top executives, sometimes HR management re-codes "borderline" cases, so the numbers don't look quite as bad. For example, an allegation of discrimination might become a generic management conduct issue. This is such an ethically slippery slope! And it's how systemic problems are swept under the rug.
Is it Possible to Stay Anonymous?
If you make an anonymous complaint, a good HR Investigator can often logically deduce who you are. That's simply good detective work!
Your Information May Not Be Protected
HR may routinely email detailed investigation reports to one another or executives that are unencrypted and not password protected. That's your information they're handling sloppily.
HR employees may accidentally leave materials on copying machines and printers or displayed on computer screens when they leave their desks "for just a moment." The investigator might even take your case file home. File materials may contain information that is not only personally identifying but also very sensitive, putting you at risk in more than one way.
How Safe Is Your Information?
Executives Are Treated Differently
You suspected this was true. Executives and other special people are often treated differently than you. Their investigations are often faster, more discreet, and more informal.
When they misbehave, their consequences are typically less severe and poorly documented. Even when serious misbehavior is substantiated, they may have a broader range of face-saving options (e.g., early retirement, a mutual resignation agreement). Sadly, instead of holding them to higher standards, HR representatives often do the opposite.
Your Case Will Be Talked About
Your case may be discussed in internal HR team meetings or special meetings with Law, Audit, Compliance, Executives, or others. However, it's not a gossip session; it's a business meeting about your case. There can be a discussion about the facts of your case, findings, and recommended action steps.
What if You Get a Bad Investigator?
There are investigators who are good at their job and others who are not. Your investigator may
- be poorly trained or inexperienced
- have a performance issue himself/herself or
- suffer HR issues of his or her own.
Some companies rotate their HR employees through various HR sub-specialties (e.g., Benefits, Training), and you may have been assigned the new investigator who doesn't know EEO law or company policy very well.
If you don't seem to be getting good service, find out more about the investigator in a low-profile, respectful manner. Also, be sure to document your communications with him or her. With sufficient reason, you might also request another investigator.
What if HR Is Swamped With Complaint Investigations?
There are a number of factors that could affect how long your case takes to be investigated. Case volume tends to peak at certain times (i.e., during performance evaluation season, layoffs, reorganizations).
The investigator may have a huge caseload, may be going on vacation, or may be out sick with no back-up. Such factors will affect the amount of time needed for your case to be resolved. Your case may also be handed off to another investigator.
To avoid surprises, ask upfront for an estimate of how long the case should take to resolve, and arrange for periodic check-ins, as appropriate. If you don't hear anything, check in. Don't assume that no news is good news.
How much do you trust your Human Resources department to resolve employee complaints fairly?
All Communication Is Documented
A good investigator is documenting every key discussion he or she has with you. This includes the conversation date, time, and what was said. It may also include voice mails that were exchanged. Copies of emails and important documents are also kept in the file. Watch the tone and content of the emails you send to investigators!
Who Can You Talk to About Your Case?
When the investigator tells you to keep the investigation matter confidential, it's going to feel like you cannot talk to anyone about this. Maybe he or she even presents you with a company document that directs you to refrain from talking to others about your case.
You may wonder whether you can discuss the matter with your spouse, clergy person, therapist, lawyer, best friend, a coworker who is experiencing the same problem, your union representative, and so forth.
Don't suffer in silence. Know your rights. There are, in fact, people you are legally permitted to discuss your case with and others you cannot.
Ask clarifying questions if the company provides you with such a document or if the investigator makes such a request. Why? In 2015, the National Labor Relations Board (NLRB) ruled that (nonsupervisory) "employees have a ... right to discuss discipline or ongoing disciplinary investigations involving themselves or co-workers" unless there's a substantial business justification. (How else are you going to find out that several other coworkers were also sexually harassed by the same manager?)
Beware of Cubicle Eavesdropping
If you are talking to the investigator via phone, he or she may be sitting in a cubicle or talking to you while using a cell phone in a public location. After all, office space is at a premium. In these cases, others might overhear the details of your conversation, thus fueling the gossip mill. Is that what you want?
How You Communicate with the Investigator Matters
The investigator is evaluating your credibility, and it impacts the outcome of your case. For example:
- Do you change your story?
- Are you responsive to the questions asked, or do you wander off-topic?
- Do you have documents, details, and witnesses to support your assumptions and claims?
Beware of Conflicts of Interest
The investigator might be friends or former colleagues with the person complained about. Check out the investigator's LinkedIn account to see if the two are connected. If you have good reason to believe there may be a relationship that compromises your investigator's neutrality, then consider requesting a new investigator.
A Complainant or Witness Might Receive HR Feedback
On occasion, it becomes apparent that the complainant has a major contributing role in the conflict. In such cases, the complainant may receive feedback (or even discipline) as the case is resolved. Alternatively, during the investigation an unrelated compliance matter could also surface. In cases I have investigated, that has often occurred.
Electronic Eavesdropping Is Possible
Depending on the nature of the case, the investigator may electronically monitor your company email as a part of his or her research. This can be done in real time, and employees typically have no idea it's happening. I know because I've done it.
What Happens if I File Multiple Complaints?
HR often has a short list of employees who repeatedly file complaints—sometimes against the same employee and at other times against lots of different coworkers.
Maybe these folks aren't getting what they need. Maybe they are highly sensitive. Maybe they are abusing the system. Snarky HR investigators may refer to them as "frequent flyers," but each allegation has to be investigated on its own merits.
There's another group of red flag employees who have a history of prior complaints against them, yet they somehow manage to stay employed. Eventually their luck will run out. HR knows that where there is smoke, there is often fire, so do not let this dissuade you from filing a complaint.
HR Is Betting You Won't Contact an Attorney
HR investigates many complaints and trusts that most employees will not go to the trouble or expense of contacting an attorney about their workplace concern. The more you have at risk, however, the more you should consider consulting one. Lawyers do tend to achieve more attention and better results.
What if Nothing Was Done After the Investigation?
If the allegations were substantiated (i.e., found to have merit), you may be told simply that the matter was "handled appropriately." It could appear to you that nothing was done if the PCA wasn't discharged or transferred to a new department.
In fact, there are probably outcomes that you are specifically not told about because of concerns about the other party's privacy. For example: a disciplinary write-up, a reduced performance rating, remedial training, early retirement, a pay cut, demotion, a big promotion denied, or a bonus that was withheld. You may never know exactly what was done to the offender. They have their privacy needs, too.
A Confidential Case Report May Describe Case Details
At the conclusion of your case, the investigator may write a report about your case. A typical report contains background information on the key parties in the complaint, allegations made, steps taken during the investigation, the investigator's evaluative findings, and any actions taken.
In the report, the HR Investigator also frequently documents credibility assessments for key parties in the complaint. You will not typically be granted access to this report, although some states consider investigation records to be part of the employee personnel file and therefore do allow access.
Substantiating a Case Takes More Effort
Let's face it: it's much easier for the HR Investigator if a case has no merit. When a case is substantiated, the investigator must debrief management and agree on discipline and/or remedial action. Then, discipline must be administered and documented. The investigator may even have to present the case to his or her own management and vigorously defend findings and recommended actions, plus seek consult from the Law Department.
This extra work is simply a part of the HR Investigator's job. Appreciate them when you know they've been a conscientious investigator.
HR Is Not There to Be Your Friend
The HR Investigator may come across as neutral, polite, and professional, and you may trust him or her. You may even perceive that you have HR in your corner. However, if you decide to file a complaint with the Equal Employment Opportunity Commission (EEOC) or take other formal action, that same HR Investigator will be helping to respond to your complaint.
In this case, that nice HR person will be helping to defend the company against your claim. Your relationship with the HR Investigator is a business one, so treat it as such.
What to Do Before Filing an Employee Complaint
Against a Coworker, Customer, or Vendor
Against a Manager
1. Name (or list) the offensive behavior(s).
1. Name (or list) the offending behavior(s).
2. Describe how the behaviors impact your work and the business.
2. Review your employer’s policy manual or intranet for the complaint process and specific policies you believe your manager has violated.
3. Describe your attempts to manage the issue yourself.
3. Collect relevant supporting documents and details, including a chronological listing of dates/times/witnesses of the offensive conduct, emails, phone or text messages, etc.
4. Assemble any supporting documents and names of witnesses, in case they are needed.
4. Describe your attempts to manage the issue yourself and the results.
Where and How to Complain
Against a Coworker, Customer, or Vendor
Against a Manager
1. Approach your manager when s/he is relaxed and open.
1. Depending on your company’s specific complaint procedure, you may need to file a grievance with your union, a written complaint with Human Resources, have a verbal discussion with the next layer of management, etc.
2. Clearly and concisely describe the offensive behavior, the impact on your job and the business, and the solution that you seek.
2. Clearly and concisely describe the offensive behavior, the impact on your job and the business, and the solution that you seek.
3. Ask for your manager’s help or advice in solving the problem.
3. Ask about next steps in the complaint process. When the complaint is resolved, agree how and when to check back in with your manager about the outcome effectiveness.
4. Agree how and when to check back in with your manager about the outcome effectiveness.
4. Document your conversation immediately afterwards. What was said? What was agreed to? Who was in the room?
What to Do if Your Complaint Isn't Successful
Against a Coworker, Customer, or Vendor
Against a Manager
1. Check back in with your manager according to the agreed-upon time frame.
1. Review your employer’s policy manual or intranet for the complaint process, paying specific attention to retaliation if you have suffered tangible outcomes for complaining or the offensive behavior has increased in frequency, severity, etc.
2. Briefly recap your complaint and the advice your manager issued.
2. Write a one-page summary of your complaint, unsuccessful attempts at solving the issue, and reiterate the impacts upon your job and the business.
3. Describe the actions taken and the results (i.e., how your work and the business are still being impacted, the offending behaviors have increased in frequency, severity, etc.).
3. Name the policy you believe was violated and the solution that you seek.
4. Ask for your manager’s direction and explore what other steps may be necessary (e.g., involving HR or a higher level of management).
4. Establish an electronic trail by sending this summary via email to the person you originally complained to, and copy Human Resources requesting help.
5. Continue to document key conversations and collect relevant documents. You may eventually need to go higher in the organization or complain to a government agency.
HR Investigation processes differ from company to company. Should you ever need to file an internal employee complaint, this insider's list of observations can help you ask questions, set shared expectations, and understand the potential pitfalls. Good luck in your dealings with HR and others. Above all, remember that in the grand scheme of life, this is a job. Practice good self-care emotionally and physically. You'll get through this.
Questions & Answers
What would you do if an incident at work made you feel uncomfortable enough not to go back?
By uncomfortable, I'm unclear whether you believe your health/safety was in immediate jeopardy, your civil rights, or both. (Examples might include severe alleged harassment or threatened workplace violence.)
Here are several options that many people in your situation consider, along with their pros/cons:
1) If you simply don't show back up to work for three days no call/no show, usually companies consider this job abandonment, and it may be recorded as a discharge -- not good for your employment record, if this at all worries you. It may be hard to get unemployment, too, should you need it, and if you then try to file a complaint with a government agency such as the EEOC or state human rights board, they may very well deny it because you didn't go through the company's internal complaint channels. (This will depend on the circumstances of your case). Also, the company has no idea this happened, the person faces no consequences, and s/he can do this to others. Do you want them to get by with this behavior?
2) If you're worried about your immediate safety (such as a stalking situation), contact your local police first. Then contact your employer's HR department via phone or email to protect your employment status. Document all conversations. Also, notify your manager of your work absence so that you're covered from an employment standpoint; you don't have to provide details. Work with HR on call-in procedures and workplace logistics until the matter is investigated and remedied, particularly if the boss is involved. Your safety should be pre-eminent.
3) If you see a psychologist, licensed clinical social worker, psychiatrist, or even a family doctor, you could go out on a stress-related leave (short-term disability leave). Depending on your eligibility and what your employee benefits are, that could be up to six months. This option delays dealing with the conflict, but it gives you time to consider your next move. It also preserves your employment status with the company, takes you out of the situation long enough to de-traumatize, allows you the time to search for another job if that's what your decision is, and keeps some income coming in. You don't necessarily have to ever return to the job. You could quit when you get a final return-to-work date. Again, however, unless you report the issue, the company has no idea this happened and the person can do this to others. They probably have done it to others before you, right?
4) If you feel that the situation is severe and you can never return under any circumstances whatsoever, you could consult a lawyer to advise you on your complaint or negotiate your separation from the company. Lawyers can often get results when employees cannot. However, they can be expensive. The longer you've been employed and/or the more egregious the situation is, the more a person might consider this option.
5) Contact HR and make a formal complaint. Tell them you are *afraid* for your safety and fearful of returning to work. State exactly why. Name names, give all the details, cite policies as needed. Some employees have successfully negotiated separation agreements without an attorney (in which you get paid to go away but you have to keep your mouth shut about it). The alternative is that who knows? ... An investigation could result in the person who did this being fired.
6) If you don't have much invested in the job and don't want to deal with the matter extensively, simply walk away and at some point of your choosing write a letter detailing exactly why you had to walk away from your job. You might send it certified mail to the attention of the top executive, if this is your choice. Be prepared for a company representative to perhaps contact you, to hear nothing, or to receive a letter in return from the HR or legal department. You may never know how the matter was resolved. Alternatively, you could send the letter anonymously, but it would likely lend less credibility.
Can I be fired for making a complaint to human resources?
You're asking whether you can legally be retaliated against for raising an employment concern in good faith. As much as I'd like to be able to tell you it would never happen, the reality is that unethical employers sometimes do retaliate illegally. It's therefore important to know whether you are covered by any anti-retaliation policies and laws for your workplace, jurisdiction, and the issue that you're complaining about.
Here are a couple of things to consider:
Large employers typically have important anti-retaliation language embedded in specific company policies. Therefore, the first place to check would be your company policy manual, intranet/portal, etc.. Read, understand, and save a copy of relevant company policies. If your employer has no workplace policies, that's a big ole red flag.
The second place to check would be your employer's labor law postings bulletin board. It's typically located in locations easily accessible to all employees as well as applicants, such as in the HR front office. You may learn that you have rights you didn't know you had by simply reading this bulletin board. People overlook this resource, but it's important.
The size of your employer determines whether you are covered by certain federal and state employment laws; some laws pertain to employers with 15 or more employees, others laws to employers with 50 or more workers, for example. Therefore, the issue that you are complaining about matters. People who work for small businesses are often sorely disappointed to discover how employer size negatively impacts their rights.
It's also assumed that you're making the complaint in good faith because you genuinely believe it to be a problem rather than you simply want to be a nuisance.
If you are concerned about being fired, you may want to consult an employment attorney in your jurisdiction about your specific complaint.
Is HR allowed to divulge the name of the complainant to the person the complaint is against?
While experienced HR representatives typically try not to divulge the complainant to the person complained against (PCA) during a workplace investigation, it often becomes apparent from the line of questioning. (That doesn't mean, however, that you shouldn't report wrongdoing!)
What people don't realize is that sometimes the identity of the actual complainant is surprising. For example, if sexually harassing comments were allegedly made by Person A to Person B in front of three witnesses, the complainant could be the person receiving the allegedly harassing comments, any of the witnesses, or anyone who was told about the incident. What a complaint is, is a suspected violation of company policy and/or the law.
Remember that you shouldn't be retaliated against for making a complaint in good faith. Therefore, technically, it shouldn't matter if the PCA knows the identity of the complainant. If you are at all concerned about how your company approaches this, ask general process questions before saying that you have a complaint.
© 2013 FlourishAnyway