This content sponsored by Shulman Rogers.
When a workplace complaint surfaces, many employers have a natural instinct to focus on the potential legal exposure.
Was a policy violated? Is there liability? Could this become a lawsuit?
Those questions matter.
But Meredith “Merry” Campbell, chair of Shulman Rogers’ Employment & Labor Practice Group, quickly points out that they are not necessarily the most important questions employers should be asking first.
Today’s workplace complaints arrive in a much different environment than they did even a few years ago, Campbell said. Employees are more aware of their rights, more likely to document concerns and increasingly willing to consult lawyers while they are still employed. Employers are also navigating an evolving discrimination landscape and rapidly changing legal standards.
Yet Campbell believes employers often overlook a larger opportunity.
“These investigations are not a burden. They’re an opportunity to hear from your employees, to learn from your employees,” she shared for The Legal Lowdown on WTOP. “If there is some friction, we’d rather deal with it when it’s friction and a problem, not a tragedy.”
While workplace conflict itself hasn’t changed much, the environment surrounding it has.
“In a lot of ways, the work is fundamentally the same when you’re dealing with people,” Campbell said. “Sometimes people do dumb things, and you’re never going to have a work environment that’s pristine.”
What has changed is the legal landscape. She points to recent Supreme Court decisions involving reverse discrimination claims, religious accommodations and adverse employment actions that have reshaped how employers evaluate workplace complaints.
“One of the big themes of the last couple of years has basically been chaos in employment laws,” Campbell said.
That uncertainty is creating challenges for human resources teams trying to support employees while keeping pace with evolving legal standards.
“HR professionals are kind of left in this world where they’re really trying to not only do what’s right for the workplace culture and to treat people the right way, but they also are operating in a world where they’re not exactly sure what the law requires,” Campbell said.
Technology is adding another layer of complexity. Employees increasingly have access to legal information online and often use artificial intelligence tools when researching workplace concerns.
“Even when employees are not necessarily working with a plaintiff’s lawyer, they might be putting their situation into an AI module and sending back very formal sounding responses,” Campbell said.
At the same time, she noted that employers are seeing a rise in complaints from employees who believe they are being treated unfairly, including a growing number of reverse-discrimination claims.
“We are seeing a significant rise in employees who are voicing that they feel like they’re being treated unfairly,” she said. “We’re seeing a huge increase in reverse discrimination allegations.”
For employers, the biggest mistakes often happen immediately after a complaint is raised.
“It can be a very human common reaction to get that complaint and maybe get a little defensive or dismissive,” Campbell said. “Maybe you think, ‘I understand why this person’s upset, but this is not legitimate, so I’m just going to ignore it and move on.’ And that’s probably the worst decision you can make.”
Employers should resist the urge to either dismiss concerns or overreact before understanding the facts. Remember, she said, “prompt is not immediate.”
The initial approach needs to be standard and automatic, Campbell said. “We take these concerns very seriously. We’d like to learn some more information.”
Importantly, acknowledging a concern is not the same as confirming wrongdoing.
“You’re not necessarily crediting that there’s a problem, but you’re crediting that this person is upset about something,” she said.
Campbell also cautioned employers against becoming entrenched once a dispute develops.
“Employers maybe get dug into their position, and they don’t think that they’ve done anything wrong,” she said.
That mindset can make resolution more difficult and increase the likelihood that a workplace concern escalates into a costly dispute.
“When everybody sort of gets entrenched in their positions, as the old saying goes, the only people who win in litigation are the lawyers,” Campbell said.
It’s also important to keep in mind that many workplace investigations begin with a supervisor, not HR.
As a result, Campbell believes manager training has become an important risk management tool available to employers.
“One of the most important things that companies need to do is make sure that their managers know how to respond to a complaint,” she said.
Managers should take concerns seriously but avoid making promises or assumptions before learning all the facts.
“You can be sympathetic. You can say, ‘I’m sorry you’re upset,’ ” Campbell said. “But you don’t want to necessarily respond and say, ‘I can’t believe that happened to you’ when you’re only getting one side of that story.”
The goal is not to turn managers into investigators.
“They don’t have to solve the world’s problems, but they need to be able to spot them,” Campbell said. “They need to be able to know when to lean on their HR team.”
Despite the complexity surrounding workplace complaints, Campbell believes employers achieve the best outcomes when they focus on workplace culture rather than strictly liability.
“It’s also an opportunity to communicate to your employees that you do take these things seriously and that you have a high expectation of professionalism in the workplace,” she said.
Employees do not necessarily expect every complaint to result in discipline or termination. More often, they want to know their concerns have been heard and evaluated fairly.
For employers, that mindset may be one of the most effective ways to address problems early, build trust and prevent today’s workplace complaint from becoming tomorrow’s litigation, Campbell said.
“That starts with making sure that employees understand that if they’re upset about something, that doesn’t mean that we’re necessarily going to credit it, but we’re going to listen and see if there’s something that we can do to make the work environment better.”
#1 Acknowledge the complaint: Listen carefully, document key details and let the employee know the concern will be reviewed.
#2 Preserve potentially relevant information: Gather emails, text messages, chat communications and other records that may be relevant to understanding what occurred.
#3 Determine who should conduct the investigation: Depending on the allegations, that may be HR, internal leadership or outside counsel.
#4 Reinforce confidentiality and anti-retaliation expectations: Participants should understand the importance of professionalism and that retaliation will not be tolerated.
#5 Follow a consistent process: Every complaint deserves an objective review focused on understanding the facts before reaching conclusions.
For more legal tips and advice, visit The WTOP Legal Lowdown, brought to you by Shulman Rogers.
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