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Lecture Notes
Texas and some other states follow the Employment-at-will doctrine which means that employers may terminate the employment of any employee at any time for any reason. However, courts have increasingly restricted this to exclude termination under any violation of Title VII. This means that the only employee not in a protected class under Title VII is a white male under the age of forty. In today’s litigious employee population, it is not a good practice to discharge without just cause.
Employee Complaints:
An employee may file an internal, formal complaint with the HR department for a number of reasons, such as inappropriate behavior of a supervisor, disagreement with disciplinary action, or retaliation. HR will determine if a fact-finding investigation is necessary.
Or an employee may file an external complaint of discrimination with the EEOC (Equal Employment Opportunity Commission) while currently employed with a company or after being terminated. The EEOC will then conduct an investigation to determine the merits of the case. HR and the Legal department will also launch a fact-finding internal investigation in order to answer to the EEOC and defend the actions taken.
Internal Investigation Process:
Employers should set up a process for a prompt, thorough, and impartial investigation to respond to an employee’s complaint.
It is incumbent upon the individual who conducts the investigation to gather objectively the relevant facts. It may be necessary to remove the wrongdoer from the workplace by placing him/her on non-disciplinary leave with pay pending the conclusion of the investigation.
Internal Investigation Steps:
1 Investigator will interview the complainant, the alleged wrongdoer, witnesses, and anyone who could have relevant information.
2 Investigator will write a detailed report.
3 Senior leaders, HR, and legal counsel, will weigh the evidence and determine the corrective action.
4 HR will follow up and inform the complainant of actions taken.
5 If the corrective action is termination, the message to the remaining employees is simply that the employee is no longer with the company.
6 The investigator will document the investigation and outcomes.
External Complaint filed with the EEOC:
As noted, an employee has the right to file a complaint with the EEOC whether currently employed with the company or after termination of employment with the company.
In most states, an employee must file charges within 180 days from the occurrence of the discriminatory act.
If filed within the 180 days, an EEOC agent will interview the complainants and collect facts from all parties. If the charge appears valid, they will attempt an out-of-court settlement through conciliation. The increase in employment litigation has caused the EEOC and the courts to request that employers first try to mediate to reach a resolution and to alleviate tying up court dockets. If mediation fails, they will issue a right to sue the employer.
Several methods are used for out-of-court settlements. Alternative Dispute Resolution (ADR) is a problem-solving method for resolving employee complaints and grievances to prevent costly and time-consuming lawsuits. ADR techniques include mediation, arbitration, and conciliation. Unions have historically used arbitration procedures and now non-union companies are using these alternative techniques for dispute resolution. An internal investigation compounded by an EEOC investigation is costly and time-consuming. It is a lengthy process involving many employees throughout the organization. ADR is often a cost benefits, for both parties because it eliminates costly court proceedings.
Below is a process flow of an EEOC investigation.
Remember that an employee has the right to file a complaint. The employer cannot retaliate against the employee filing a complaint. Retaliation claims have risen significantly over the past decade. Employees who oppose discriminatory practices or participate in a protected activity are protected by law and may seek compensatory and punitive damages.
Best practices for a company to establish and enforce in order to mitigate the risk of employment claims include the following:
• Update written policies regarding employee rights (the right to file a claim, zero tolerance for retaliation, code of conduct, etc.)
• Train managers on anti-harassment
• Establish multiple channels for making complaints (report to manager, HR, anonymous reporting hotline)
• Promptly investigate all claims
• Involve HR and Legal
• Document
• Follow up
Question:
In a brief paragraph, please answer the following question:
1. Research the Sarbanes-Oxley Act. How does this Act apply to what you have learned about employee protection for filing a claim?
