Complaints are an unfortunate but inevitable part of working in human resources. But not all employers know how to handle complaints and investigations into those complaints, and unprofessional or callous complaint processes can sour any workplace.
In this episode, Alishia Young, Xenium’s Director of HR Services, joins Brandon Laws to discuss employee complaints and the steps every HR professional should take to address them. We’ll cover common grievances, what you should and shouldn’t document, and how to know when it’s time to ask a third party to step in.
Brandon Laws: Hey, welcome back for another episode of the Human Resources for Small Business podcast. I’m your host Brandon Laws and today I’ve got a special guest, none other than my cousin, Alishia Young.
She is a Director of HR Services at Xenium.
Alishia, I had you on one podcast about this time last year and it was just a brief segment and we talked about experiential learning.
Alishia Young: Yes.
Brandon: And I’m going to tap into some of that experiential knowledge today. At Xenium we represent a lot of small, mid-sized companies and occasionally, you will have – and you’re going to tell me. Complaints happen, right? And it doesn’t feel good when it happens, probably. You have employee complaints about something and then you’ve got to do something about it because you don’t want it to escalate to a level where legal action needs to happen, right?
So, hopefully you don’t have to go through that as a small company and I’m sure people listening either have gone through something like this – hopefully this podcast will help you prepare for if you do go through something like that.
Alishia, you’ve probably done tons of investigations over the years.
Alishia: Yeah, I have. I wish I could say that the word “occasionally,” but this is the climate that we’re in right now. Unfortunately, workplace conduct issues are happening left and right and mostly generated around inappropriate behavior.
Alishia: But it seems to be definitely bubbling up over the last several months.
Brandon: Yeah. So you said inappropriate behavior. Is that usually the majority of those complaints, or is this something else?
Alishia: Usually, it’s – yeah, I would say there – for the most part, it is inappropriate behavior. Does it always warrant the word “harassment”? Not always. Does it sometimes warrant the word “harassment”? Sometimes it does. But for the most part, it’s inappropriate behavior or policy violations or just people not getting along. And when people just don’t get along in the workplace, they tend to bring out all of the issues that they have with each other, which typically then causes other problems.
Brandon: At Xenium, we represent a lot of different small and medium-sized companies. Percentage-wise, would you say that comes up with a complaint like – in your book of business, what do you have? Thirty clients? Thirty, forty clients? Something like that? Maybe more?
Alishia: Yeah. Usually our business partners are sitting anywhere between 30 and 40 clients –
Brandon: And it’s a random sampling of industries.
Brandon: Is anybody off limits to a complaint?
Alishia: No. Typically, there are times when the complaints look different. You know, from let’s say a manufacturing environment to a professional services environment. But ultimately, sometimes they are the exact same, just done in a different form or fashion.
Brandon: Yeah. So you said a lot of it is inappropriate behavior. When these complaints happen, is it the employee that’s driving the complaint and who are they going to?
Alishia: Yeah. Usually it’s the employee that drives the complaint that comes in or the request for a transfer or sometimes it’s even – quite frankly, sometimes it comes after we’ve given some form of counseling to an employee. So now all of a sudden, they have a bunch of complaints that they’re bringing forward.
So it’s really – it’s all over the board. It comes from all different angles and all different levels of tenure with employees. Male, female, it doesn’t matter. It comes from pretty much everywhere right now.
Brandon: When a complaint happens, how often do you think an employer could just handle it on their own? Like you said, a lot of maybe disagreements. How often do they handle it on their own – it doesn’t escalate to a full-scale investigation versus it escalates to a point where, OK, now we have to bring in a third party or an attorney or whatever people do at that next phase?
Alishia: Well, I think they’re – one of the big key things to understand is there is a difference between employee relations and an investigation. And sometimes owners and management staff will think they are the same thing. Not every type of complaint that comes in warrants an investigation.
Brandon: How do you distinguish between the two? How do you know when you’re going to go to investigation and go through that process versus just employee relations?
Alishia: I think a lot of times it depends on the type of complaint that comes in. So obviously if there’s any type of protected classes involved or if there’s a complaint of a sexual nature, if there’s a complaint that involves a manager and an employee, typically we go straight to investigation at that point; but a lot of times, people come in and they just have disagreements in the workplace.
That sometimes tends to lean towards just inappropriate behavior, towards each other or towards others. It may not necessarily be protected in nature, but those are things that sometimes we can work out amongst people versus making a bigger deal out of something than it has to be.
Brandon: When a company, small company, let’s say they don’t have a Xenium or they don’t have an attorney that they trust on their side. They have a complaint that comes through. They don’t have an HR person. So maybe they’re a business owner who’s managing people. They maybe have some managers. But they don’t have a third party or somebody to rely on who knows this inside and out.
Brandon: When a complaint comes through, what do they do first?
Alishia: I think the first thing they need to do is kind of like the question you asked a minute is, “When can they do it on their own versus when do they need to seek some form of at least some type of counsel around how to go about it?” I think a lot of it has to do with how the complaint is given to the company. So was it already given in writing? Was it an anonymous complaint? Did it come in by the form of somebody during a one-on-one? Are they asked to meet with a manager and talk through things?
So I think a lot of it – that’s usually the first step. It’s that intake, what I like to say. So whoever intakes that initial conversation with whoever is complaining, that’s really key.
Brandon: It’s interesting that the complaints come in different forms, like anonymous? How do you even handle an anonymous one? Do you do a full-scale investigation on the entire company? What do you do?
Alishia: Yeah, those are really hard because a lot of times, even with – so a lot of times, we will get – we get a slip of a paper or something sent on an email. But we don’t know who it’s from or somebody comes forward and says, “I want to make a complaint, but I don’t want my name associated with it. I’m just letting you know. So I want it kept confidential.”
Unfortunately, the answer to that is we can’t keep it confidential. The ones that come in that are anonymous, those we just have to – we have to kind of monitor. So what exactly are they saying? Can we narrow it down by department or people within the organization or is it so broad that there’s really nothing we can do and we can just maybe make an action plan to address the way in which we make complains with an organization, so that everybody understands what our complaint reporting procedure looks like?
That also tells me that we also need to get the employees comfortable with coming to either management or HR with their complaints, so that they don’t come through as anonymous.
Brandon: So a complaint comes through and it could be a different – like it could be anonymous. It could be in a one-on-one. It could be – what is that next step as far as, “OK, I’ve got a complaint”? Do I talk more with the employee about it? Do I start documenting? Do I call my attorney? What’s that next phase?
Alishia: You know, what I like to tell a manager especially when it’s one of the employees coming forward with a complaint is to just listen.
Alishia: Give them the opportunity to be heard and listen with compassion. Don’t judge and don’t rush to try to fix things either. So taking it all in at that moment and then just telling the employee, “You know, give me some time to kind of think through what it is you’ve just told me and then seek my own counsel.”
So whether or not that’s another manager to an HR person or to the president of the organization or to an attorney outside, that gives that manager enough time to just kind of have a little breathing room. We don’t expect managers to go in and get all the details right then and there. Their main job is to just be able to listen and allow that employee to be heard in that moment and then really quite frankly, it’s then our job after the fact to come in and really get into the grind and get into the level of details that are going to help us either substantiate or not substantiate a claim during an investigation.
Brandon: How often are – like whoever is taking the complaint, are they updating the employee on the process of the complaint? Like, OK, here we are – let me digest it. I will come back to you tomorrow with what the next action is going to be. How much are you updating them on progress?
Alishia: We would hope that our managers are trained to give them kind of a – you know, give the employees a timeline. Sometimes we can’t give them a specific timeline because we don’t know what the investigation is going to look like until we dive a little deeper.
But we should absolutely be following up with the complaint within – I like to personally follow up within about 24 hours to make sure that they understand that they’ve been heard. It doesn’t necessarily mean that we have to have our action plan in place. But it is important that we tell the complainant that they have been heard. We’re going to be taking action. We will be meeting with them shortly and reaching out to them to gather further information about their complaint.
Brandon: Let’s say this goes to – and this is the whole purpose of this podcast. It’s to show people like the process of an investigation. So let’s say we’re going to put the ones that you could solve –
Brandon: Easily aside.
Brandon: Let’s go into a full-scale investigation here. What’s that first step as far as your – maybe figuring out who’s involved and scheduling meetings? What’s the timeline of all this taking place? What’s really typically that first step?
Alishia: Yeah. So our first step is to gather the information that we have based on the complaint as soon as possible and then that’s when we start to build out our plan. Usually our first step is to reach out to the complainant. Let them know that they’ve been heard. Let them know that we’re taking action in the form of doing some interviews and that we would like to interview them first.
So it’s important that even though an employee may tell their manager what the complaint is, it’s even more important that they sit down with us and go through the actual details of the complaint. Then once we have that, then our real action starts to take place at that point in the sense of now we know are there – have there been witnesses that witnessed the exact same behavior? Are we needing to go schedule those meetings? Do we now notify potentially the person that has been complained about?
Those all kind of depend on the circumstances of the investigation. So there are times when there’s a reason for us to remove somebody from the office, the facility immediately because maybe there are safety concerns for whatever took place.
So we have to take action based on what the complaint is about. If it’s – if there’s something of a violent – there’s violence involved or sexual harassment involved, we will probably move to remove somebody from the workplace immediately, pending the investigation.
Brandon: I can imagine that it will just like totally wreak havoc on the culture if people know about this happening and you’re mid-investigation and now you have people involved that are still in the workplace. So you’re saying to remove them in some cases.
Alishia: We will sometimes, depending on the circumstances, remove somebody from the actual workplace. Usually it’s the person that’s being complained about, if the offenses are severe enough. Two people not getting along and claiming that it might be just because of something that happened outside of work or something that happened in work where they don’t like the way that they talk to each other, one person is more abrasive than the other, that doesn’t warrant us taking somebody out of the workplace.
But if we have a manager who’s potentially sexually harassing somebody or text messaging somebody inappropriately or anything along those lines, we will remove that manager immediately, pending the investigation. So that that way we can – we can as much as possible move quickly through the investigation.
Brandon: I imagine in the investigation that documentation is everything to this.
Alishia: Key, yes.
Brandon: So talk about how you typically set up a folder or a plan of some sort and then also tell me what you can and cannot document. Because the first thing – like, if you’re doing a bunch of interviews, I would think, “Oh gosh, streamlining it would be recording them,” or something. But you probably can’t do that, right?
So talk to me about like what you’re doing from a documentation standpoint, or best practice?
Alishia: Best practice is we don’t record. I think there are certain places and organization environments that may record. We choose not to, from a third party perspective, unless there was a reason. Or let’s say it’s a union environment where they record everything that comes through. But we typically don’t use a recording device. We do have to document everything to a “T” as much as we practically can.
So you will see, a lot of times, more than one person going into the investigation, depending on the severity of the investigation. So you will have somebody asking the questions and another person that is trying to get – type up all the notes as verbatim as possible.
It does mean that there’s a lot of times where we’re having to go in and make sure that we’ve captured everything correctly, double-checked the questions and then a lot of times, we’re going back in and asking some additional questions, especially with some of the people that are more heavily involved.
So that’s our opportunity to review our analysis and say, “OK. Well, we need to ask another question here,” followed by maybe a second or a third question, so that everything kind of comes together smoothly when it comes to the documentation.
Brandon: So if it escalates to a point where legal action is being taken, what’s the documentation going to – how is it going to end up?
Alishia: Everything could be discoverable. So it’s so important that we are cleaning up our notes. We’re making sure that we have captured everything as much as practical in the moment or as close to the investigation as possible.
Following an investigation, we like to do memos to the people that were involved, just reminding them that there’s no retaliation and/or substantiating or not substantiating the complaint to other specific people involved in the claim.
All those things are part of the documentation process. So those are cleaned up and stored in case everything does become discoverable.
Brandon: Physical files or electronic? What are you doing?
Alishia: We keep a combo of both. There are times sometimes when I will go into an investigation where I actually may not take my laptop because I want it to be a little bit more of a dialogue between the person and myself. So then of course then I will have some physical files. I may scan them, put them on into the drive. But they need to be captured in a confidential area that nobody has access to.
Alishia: And kept away from anything else that could be discoverable from a different perspective.
Brandon: Email communication. I imagine there’s a lot of email communication going back and forth between either complainants or people you’re interviewing or witnesses or whatever it may be.
How do you document the email trails? I would imagine because it’s digital that you can access server files anytime.
Alishia: You can.
Brandon: But how does that become part of the documentation?
Alishia: Yeah, you do want to be extremely careful with what you’re going back and forth on email. Even when you’re strategizing on how to manage through the investigation or strategizing on how you’re going to handle the investigation at the end of the time period, it’s better to keep that stuff out of the email trail. But making sure that you are saving those emails is key because it will go based – what’s discoverable and what’s not discoverable will go based on your archive, philosophy in the company and what’s kept and what’s not kept.
But for the most part, anything that relates to an ER situation investigation, workplace conduct, we’re keeping in some form of a file that potentially could be brought up later.
Brandon: How many of these go to legal action? Like percentage – if you were about to guess – and I will let the –
Alishia: Yeah. You know, we have seen – over the last two or three years, we’ve seen an extremely heightened number of legal action taking place with a lot of different companies, anywhere from harassment claims to ADA issues, wage and hour issues. So it’s somewhat across the board. Surprisingly enough I would say that the last two or three years, we’ve probably seen an uptick of 10, 20 percent of claims that come –
Brandon: Talk about our role in that process. What do you do for a client on that?
Alishia: So it kind of depends on what our role is to begin with. So if we were the ones who conducted the third party investigation, obviously we work very closely with the attorneys to give them overall the emails and the memos and documents, a lot of fact-finding.
Most of the time, they start off with some form of a state claim, so BOLI would be the State of Oregon. It will start off with a BOLI claim or start off with an EEOC claim and there we just kind of looked to see what are – what is the person claiming? Then we respond specifically to those claims that they have in the BOLI claim itself or the EEOC claim, with the backup documentation showing what we did regarding those specific claims.
Our role is very engaged. We need to – we literally have to hand-walk from the minute we get a claim in our hand. We hand-walk that all the way through to hopefully the day that it’s finished and we’ve put a bow on it and it goes away nicely.
Brandon: Yeah. Speaking of nicely, is there any usually good ending to this stuff?
Alishia: You know, when you can get BOLI to dismiss a claim, that is a great ending and –
Brandon: Is it a good ending for the employee?
Alishia: Is it a good – it can be. I mean sometimes it’s closure for them too in the sense that maybe they’ve had access to our response. If they’ve requested it and they see like, hey, we did all these things and maybe they just didn’t – they didn’t have access to it before. This goes back to the most important job as an HR professional is to communicate well and to communicate with the people that are making claims because if we’re not doing our job well and communicating to them exactly what our process is and how we’ve managed through the process, then that’s when you’re going to see more and more claims because people go away and then they make an assumption that something else took place behind the scenes.
Brandon: Well, I could let you talk on this all day long and you’re so knowledgeable on this. I know you’ve got to run soon. Any lasting words that you want to say for people who maybe haven’t had this happen yet or who have gone through it and just weren’t really happy with the way they handled it? What kind of advice would you give them?
Alishia: I would just say keep an open mind and don’t judge the situation before you’ve really seen all the facts.
Brandon: Like truly be a third party to –
Alishia: And truly be a third party even as a manager in an organization. When an employee comes to you and they have a complaint, take it seriously. From the minute that they started talking about something they’re upset with and the more compassion and grace we can show in that process of an employee coming forward to make a complaint, the more gracious we can be at the end when we either dismiss it or substantiate it or un-substantiate the claim with the employee.
Brandon: Awesome. Alishia Young, thank you so much for being part of the podcast and dropping all that knowledge on me. I appreciate it.
Alishia: Thanks Brandon.
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