January 7, 2019

In 2013, the California Court of Appeal ruled that a female construction worker who repeatedly complained about inadequate and unclean women’s toilet facilities, and whose complaints were not addressed or remedied by her employer, could pursue her claim for punitive damages under the California Fair Employment and Housing Act.  [Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 365 – 374.]  The court, in reversing a summary judgment ruling which was in favor of the employer, ruled that sufficient questions of fact existed regarding whether (1) the project manager on a $170 million construction project and/or (2) the employer’s equal employment officer were “managing agents” who participated in or ratified the discriminatory conduct, thereby warranting the imposition of punitive damages against the employer.

As this example illustrates, how you respond to employee complaints could make the difference between promptly and effectively solving the problem and fighting an expensive lawsuit.  At a minimum, an appropriate investigation can demonstrate that you acted fairly and in good faith, should your responsiveness ever come under scrutiny.

Successful handling of employee complaints requires having a uniform employee complaint investigation policy and procedure in place, following it, and approaching each complaint in an organized and consistent way.

The following guidelines will help you implement or improve your employee complaint policy and procedure:

Use a Standard Employee Complaint Form
Using a standard complaint form will help you identify crucial facts at the outset and will help define the problem.  Have the employee fill the form out in the employee’s own words, as you want the employee’s best recollection of the facts.  If you are later sued, the original written complaint can be critical to your defense, especially if stories change along the way.  The written complaint is also evidence of when you, the employer, learned of the problem.

Explain the Procedure
Assure the employee that the matter will be promptly investigated as per the complaint procedure, and explain the procedure. Mention that someone else may interview the employee later to obtain information. Advise the employee that there will be no retaliation for coming forward with a good faith complaint. Do not promise confidentiality, but explain that the investigation will be conducted as discreetly as possible.

Select an Investigator
Choose a neutral party to investigate, such as a non-involved manager or human resources department employee.  The investigator should have credibility, knowledge of company policies and relevant law, and strong interviewing skills.  In cases involving sex discrimination or harassment, it may be a good idea to have both male and female investigators.

Interview Witnesses
Compile a list of potential witnesses.  Start the investigation as soon as possible after the complaint is made, because memories will be fresher and you may be able to stop the problem from escalating.

Do not allow anything to be discussed off the record, and take notes during the interviews.  Make sure to note the name of the person interviewed, the date, time, location, length of interview, and who was present at the interview.  In order to prevent rumors, ask the witness not to discuss the interview with any other employees.

Reach a Conclusion
Analyze the information you are able to assemble, evaluate the witnesses’ credibility, verify the information to the extent this can be done, come to a conclusion about what happened, and determine appropriate courses of action.

Determine Appropriate Action
If discipline is warranted, keep in mind that it should be proportionate to the offense committed. Consider how serious the complained-about behavior was, whether the employee knew the conduct was prohibited, whether the incident was isolated or continuing, whether there was a prior warning, and how similar incidents were handled in the past.

Any decisions you make, including taking no action, should be documented in the employee’s personnel file.

Follow Up
Inform the complaining employee and the complained-about employee of the outcome of the investigation. Ask the complaining party to advise you if there are further problems. Tell other employees of the outcome only to the extent they need to know.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.