Friday, February 26, 2016

Encouraging Employee Complaints. Yes, We’re Serious.

Last Friday, a Yelp employee posted an open letter to her CEO, describing how her customer service job in San Francisco does not pay enough to allow her to buy groceries or see a doctor.  Within 24 hours of posting the letter on Medium, the employee was terminated.  There has been lots of commentary, including responses that argue she was behaving like a typical Millennial, suggestions that the cost of living in San Francisco is too high for people with jobs like hers, and questions about whether the termination was lawful. Penned by a woman with the Twitter name Lady Murderface, the letter serves as a reminder of the importance of open and honest communication with employees.
In thinking about how to respond to employee complaints and concerns, whether they are brought to a supervisor or posted on social media or expressed in the break room, there are several things employers need to keep in mind:
Employees get to complain.  It’s the law. Under the National Labor Relations Act, employees can talk about their wages, voice concerns about working conditions, and even use expletives when describing a supervisor.  The National Labor Relations Board argues that employees should be able to discuss these things without fear of retaliation, and has been sending a strong message with every decision penalizing an employer that terminates or disciplines an employee who engaged in these activities.  Title VII of the Civil Rights Act, other anti-discrimination statutes, and many state laws also grant employees the rights to complain about discrimination and harassment in the workplace without fear of retaliation. There are also a variety of laws that protect employee whistleblowers who complain about or refuse to engage in unlawful behavior.
Employees should complain.  We don’t mean to suggest that employers should tolerate whining or workplace disruption, but we believe employers can benefit from employee complaints of perceived unfairness or conduct that may amount to harassment or abuse.  If employers don’t hear, evaluate, and when necessary, respond to complaints about unlawful practices, there are a number of federal and state agencies eager to do so.
In fact, employers should encourage employees to complain. We believe employers that encourage employees to bring concerns forward, and support those who do, are less likely to face litigation.  Equal employment opportunity, anti-harassment, and related policies are designed to give employees a means to complain when they see or experience discrimination or harassment.  When complaints are made, and if they are found to be legitimate, employers can respond appropriately and, if necessary, put a stop to unlawful behavior before it creates liability.  Policies encouraging internal complaints are often the first line of defense when an employee fails to complain about behavior and brings a lawsuit instead.
Providing an open door may prevent an open letter.  While an open door policy giving employees an opportunity to complain within their organization might not have prevented Lady Murderface’s letter, we think employers who encourage employees to speak up do better.  When employees feel uncomfortable – regardless of whether they have a viable claim or not – they are less engaged and less productive.  When employees feel heard by their employer, they are less likely to post their complaints on social media or a site like Medium.
Retaliation is never the answer.  The EEOC is currently seeking comments on its new retaliation guidance.  Because retaliation claims outnumber all other claims each year, it is no wonder the EEOC wants to explain its stance to employers.  Some believe the new guidance expands protections for employees who believe they (or others) are treated unfairly. Whether it does or not, the new guidance clearly encourages employers to listen to employees and not take any adverse action against them because they complain.  Penalties for retaliation are significant.
This week’s The New York Times Magazine highlights Google’s extensive study of what makes a good team.  After spending loads of money trying to find the perfect team, the tech giant and human resources pioneer learned that a safe environment where employees can speak freely is really all that is needed.  There’s a lesson in here for employers – listen to employees, encourage them to complain and bring up issues, and you’ll do better. 

Posted by Kate Bischoff