How does a company learn a complaint has been filed against it or its officers?
Every employer should have a policy that addresses reporting and investigating complaints of discrimination: Employees often use this internal process. Additionally, all federal discrimination and most state discrimination lawsuits require an employee to file a Charge of Discrimination with the state or federal agency tasked with investigating discrimination before a lawsuit is filed. However, if the lawsuit is the employer’s first notification on an employee complaint, the employer should promptly investigate each claim contained in the complaint. That should be done with the direction of counsel so that the results of the employer’s investigation, within limits, can be shielded as work product.
If the employer has already investigated the employee’s complaints, it should review the investigation files to determine whether it is necessary to take additional steps, such as obtaining written statements from witnesses or gathering further comparator information.
What other steps should an employer take?
Federal law requires that you create and send out a document preservation memo to all key parties, including direct supervisors, HR and the IT department. Although it can be costly to preserve every piece of information that might apply to the case, it can be even more costly not to do so, as the courts don’t look kindly on defendants who have not taken care to preserve documents or those who have made a point of destroying them.
In addition to preserving documents, you should begin gathering together important documents, such as personnel and investigation files, comparator files, wage records, training records, and policies and procedures manuals that may be used as evidence in the case. You don’t want to wait until a day before a court date to try to hunt down documents relevant to the case.
You also need to do an overall assessment of the case. Is it something that the company can get out of with a simple resolution, such as reinstating a disgruntled employee to a position, or will it require protracted litigation to resolve?
What mistakes do employers often make when first learning of a complaint?
Firing someone can be a knee-jerk reaction to learning of a complaint, but you should avoid taking any immediate action, as that could color the case against you. In addition, federal law prohibits firing someone as retaliation for filing a complaint against you or your company. Make sure that you understand the law of retaliation as it relates to an employee claiming retaliation on top of the discrimination complaint already filed. It is not uncommon for an employee to lose the underlying discrimination lawsuit, but prevail on a retaliation claim. Courts have broadened the definition of retaliation to include any act that has the impact of dissuading an employee from filing a charge of discrimination.
Rodney G. Moore is a shareholder with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. Reach him at (404) 223-2209 or [email protected].