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Labor: When managers file internal complaints against subordinates

Companies must handle the matter delicately

Most internal employment-related complaints fall into one of two categories: either an employee files a complaint against a peer, or an employee files a complaint against his or her supervisor or another manager. Most companies have ample experience in investigating these sorts of complaints.

Far fewer companies have experience investigating complaints made by supervisors or managers against subordinates. The relative scarcity of such complaints does not mean they do not arise, however, nor does it mean a company can ignore them. Complaints by supervisors against subordinates pose unique issues that, if not considered and addressed effectively, can create significant problems. Let’s examine a few of these issues.

The accuser as investigator, prosecutor, judge and jury

Most college seniors have never known a world in which the television show “Law and Order” did not exist. They are well-versed in the different functions played by the police (who investigate crimes), the ddistrict aattorney (who prosecutes crimes), the judge (who ensures a fair process) and the jury (which decides the outcome and punishment).

The same sort of division of labor and responsibilities should occur in an internal employment investigation. Generally speaking, you have an accuser, an accused, an investigator who makes a recommendation and one or more people who make a decision. Most supervisors are aware of this division and respect it.

But what if a supervisor is the accuser and a subordinate is the accused? In an ideal world, the company would want the supervisor to make a complaint if the subordinate engaged in harassing, threatening or demeaning behavior. A supervisor faced with such a situation, however, might be tempted to bypass the usual process and proceed directly to discipline (including termination). After all, he or she is the best witness to the behavior and is in a position to do something about it.

Bypassing the usual process creates various problems for employers. It allows the disciplined subordinate to cry foul because the supervisor did not follow company procedure. It allows the subordinate to complain of bias because the accuser was also the decision maker. Further, in the quite plausible scenario in which the supervisor chooses not to confront the subordinate’s behavior directly but instead discharges the subordinate citing other (or no) reasons, it raises the specter of liability for the company because any reason given for termination could be pretext.

Most anti-harassment and anti-discrimination policies require employees to report objectionable behavior. This applies to supervisors and managers, too. Hold them to it.

Does the typical investigator need to change?

Most companies assign internal investigations to one of two individuals: a human resources employee with training and experience in conducting investigations, or a manager in the same department as the accuser and the accused, who knows the players and can seek guidance from HR.

A complaint by a supervisor or manager may change the dynamics, especially if the complainant is at a particularly high level. If the accuser is a high-ranking employee, and particularly if he or she has a strong personality, the company may wish to consider having someone at an equal or higher level conduct the investigation. This minimizes the risk that the accuser will bully the investigator and that the accused will lose faith in the process.

Another option is to use an outside investigator—either an attorney or an HRconsultant. The risk of bullying is minimized because the accuser is not in a position of power over the investigator, and the accused will likely have faith in the process because the company has retained an outside professional.

A different timetable for retaliation

When a subordinate complains internally about a supervisor, the primary retaliation concern is that the supervisor will retaliate against the subordinate (and any witnesses) while the investigation is ongoing. When the subordinate is the accused, however, the focus shifts to the time period before a complaint is filed and the time period after the complaint is resolved.

As explained above, the first concern is that a supervisor will take matters into his or her own hands and not file a complaint. Assuming that the supervisor does file a complaint, the likelihood of retaliation while the complaint is pending is small. The greater concern is that the supervisor will retaliate against the subordinate (or witnesses) if the outcome of the investigation is not what the supervisor desires. The company should emphasize to the supervisor that, once the investigation is complete, the supervisor must not retaliate against the subordinate.

To minimize this risk, a company may wish to require the supervisor to obtain approval from another manager before disciplining the subordinate in the future.

Contributing Author

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Craig Oliver

Craig Oliver is a partner with Bradley Arant Boult Cummings LLP (Nashville, Tenn.) and serves as vice-chair of the firm’s Labor and Employment Practice. His...

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