Many situations exist that can put the reputations of business owners and their firms at stake. Sometimes such situations can lead to lawsuits.
One type of situation that firm owners may unintentionally ignore or delay addressing is employee complaints. Such complaints can cover a wide variety of situations, including hiring, benefits, perks, working conditions, dress and appearance, disciplinary actions, promotions, layoffs, leaves of absence, disabilities and discrimination.
Several federal and state agencies handle employment investigations and offer resources for employees who feel their situations have not been heard, addressed or improved. Depending on the complaint, when and where it was filed and the resulting investigation, businesses can be hit with a wide variety of legal actions, including:
- Reinstatements (employees to former positions, for example)
- Back pay
- Front pay (where reinstatement is not possible, a discharged employee could be awarded compensation for a reasonable period of time reflecting the expected length of employment)
- Compensatory damages (recovery of damages for emotional distress or job search costs, for example)
- Punitive damages
- Attorney fees, court costs and other fees and interest
The good news is that owners of planning firms can take proactive steps to improve and sustain healthy employee relationships. A first, and very important, step to help avoid or reduce actions, such as those mentioned above, is to have a process for timely investigations. Look at the recent developments at Penn State for what happens when investigations are incomplete, delayed or avoided.
Have a Policy and Communicate It
The size of financial planning firms varies widely. For the solo practitioner and similarly staffed practices, questions often arise about how formal and complex policies and processes must be. To be certain, you should consult an attorney and a human resource expert, but in general, for some situations, properly worded polices and a straightforward, informal process can bring issues to light and properly resolve them.
Whether your policies and processes are formal or informal, be sure to communicate them. When it comes to avoiding disputes with employees, some policies you should consider include equal opportunity employment, safety in the workplace, how your firm addresses the Americans with Disabilities Act and harassment, including sexual harassment, as well as an open-door communication policy. This communication policy would address how to talk to management about issues and how the firm plans to approach the resolution of issues.
Keep in mind that all members of the firm-owners, managers, employees and independent contractors-should be aware of the policies. Explaining these policies in meetings and having them in manuals gives the firm the opportunity to promote its culture and professionalism.
When you receive a complaint or think there are issues affecting the team, you should review issues with your attorney. Approach a serious situation with the possibility of it leading to a court case.
Conduct a prompt and effective investigative process. Communicate the steps in the process to the person initiating the complaint.
Keep It Confidential
To the extent possible, the firm should work to maintain confidentiality. Realistically, in the course of investigation, details will have to be shared with affected parties. Everyone involved in the investigation should be aware that complete confidentiality may not be maintained, but that information will be disclosed as needed and not inappropriately. People who may be interviewed as part of the investigation should be informed about keeping confidentiality and avoiding inappropriate discussions.
Plan for Interim Actions
Depending on the nature of the complaint and resulting investigation, it may be necessary to separate the alleged victim from the alleged accused. This is again where you should consult your experts (attorney and human resource expert) on which actions to take. Some actions could include transferring an employee to a different department or changing reporting protocols, as well as temporary (paid or unpaid) leave.
The employer and the accuser (and/or alleged victim) should reach an amenable solution so that reassignments are not interpreted as retaliatory. Communications and actions taken should be documented.
Select an Investigator
Some things to consider when selecting an investigator include:
- Unbiased view (the ability and skills to investigate objectively)
- No personal relationship with the affected parties or personal stake in the resolution of the investigation
- Prior investigative experience and familiarity with employment laws (federal, state and local)
- Ability to build rapport with the affected parties and others to gather as much information as possible
- Ability to be a credible witness, maintain confidentiality, have the right temperament and pay attention to details
Where to find an investigator:
- Within the company (human resource manager or a partner who can be unbiased and is not affected by any outcome)
- Outside the company (an attorney who must disclose the company-attorney relationship, a former senior-level employee, a human resource consultant)
Conduct the Interviews
You need to outline an approximate schedule for who will be interviewed and when. Questions should be constructed that are open-ended, not leading the interviewee to an answer.
The U.S. Equal Employment Opportunity Commission provides sample questions for the accused, accuser and witnesses online here. The Society of Human Resource Management also provides a list of suggested questions (see sidebar). However, it is strongly recommended that all questions and procedures be reviewed by an attorney and/or other legal counsel.
Here is where experience counts. The investigator/interviewer needs to be able to take accurate notes and assess the credibility of interviewees. It is crucial to establish the correct sequence of events. This person will need to corroborate witness testimonies, analyze different perceptions of events that occurred, understand how and why people would lie, what motivations people have, what the individual’s past behaviors have been, etc.
Make a Decision
The investigator should take the necessary amount of time to review all the information. That may mean that the affected individuals are continuing their changed status (for example, working on different teams, reporting to different managers, having paid or unpaid leave, etc.) until recommendations and a decision can be made.
Recommendations should be reviewed by the business owner(s), senior-level management and legal counsel. The investigator, senior management, owner(s) and legal counsel should make the final decision warranted based on the evidence. This should be decided as if you were going to court to present your case; it should be well-thought out and documented thoroughly.
Close the Investigation
All parties (accused, accuser, alleged victim and senior-level management) should be notified in writing of the decision. This document also will include any appropriate actions the company will take. Such actions could be:
- Remediation of damages
- Education or training (for the accused and also for other levels of management to prevent future occurrences)
- Evaluation of workplace policies to see if changes are needed
- Possible implementation of disciplinary actions and in some instances, suspensions or terminations. Look at the seriousness of the incident and the reactions of the parties involved to determine how it would affect the business, team members and clients. This should be documented.
According to the Society for Human Resource Management’s online resource “How to Conduct an Investigation” (Dec. 6, 2010), a written summary of the investigation results should contain:
- The incident or issues investigated, including dates
- Parties involved
- Key factual and credibility findings, including sources referenced
- Employer policies and/or guidelines and their applicability to the investigation
- Specific conclusions
- Party (or parties) responsible for making the final determination
- Issues that could not be resolved and reasons for lack of resolution
- Employer actions taken
Follow-up with Affected Parties
Many times, people involved in the incident are still working together in some capacity. Depending on the situation, perhaps the accused has consented and pledged not to repeat certain activities, not to retaliate or not to prevent the accuser or victim from earning promotions.
Business owners and senior-level management need to routinely check in to make certain all parties are observing what they agreed to. This should include talking with the accuser or victim to make certain he or she is able to continue working with all team members in a professional business relationship.
This article is for informative purposes only and is not to be construed as legal advice. Consult experts, such as a human resource consultant and/or attorney, to be aware of federal, local and state regulations and exceptions.