How to Deal
What Could Be Missing From an Employer's Grievance Policy
Thursday, October 15, 2009; 12:00 AM
Lily, what do you think of workplace grievances? I was on a committee that spent months writing a grievance policy some years ago, and no one has ever used it. It can't be because no one has a serious complaint. It's because the burden of proof is on the complainer, and it's really hard to stick out under scrutiny when the likelihood of anything changing is slim. I'm discouraged.
Because I have not had the benefit of reviewing your grievance policy, I will assume that it contains some fairly standard provisions. Your policy probably makes a statement regarding the commitment of the organization to resolving personnel issues swiftly and fairly. You have defined the steps that an employee should follow to address all manner of workplace concerns, starting with an attempt to resolve the matter informally with a peer or manager, then escalating to the involvement of a direct supervisor or the Human Resources department, and perhaps providing for some sort of appeal to a more senior officer of the organization. Your policy likely describes the steps that will be taken to investigate grievances, where appropriate, providing assurances regarding confidentiality in the grievance process and protection from retaliation for employees who have the courage to bring their concerns to light or who cooperate in an investigation.
When you drafted all of this policy language years ago, you and others on the committee were both codifying the existing values of your organization and making a bold statement about the direction you wanted to take. Since that time, your employees have had the opportunity to assess the language of the policy in light of the organization's behaviors. If the leaders of your organization have not demonstrated through their actions that they really do take employee concerns seriously, then it is not surprising that your grievance policy has not been put to use. Your own observation that "the likelihood of anything changing is slim" is at least a partial answer to your question. I have always counseled employees who are debating whether to come forward with concerns that they must engage in a cost-benefit analysis of the professional risk involved in the complaint process versus the likelihood of a beneficial outcome. It could just be that employees in your organization have calculated that the risk of complaining is too high.
You should also assess whether the language of the policy is perhaps intimidating to people who might otherwise come forward. I am struck by your assertion that "the burden of proof is on the complainer." Although that might technically be true, including adjudicatory language of this type in a policy regarding internal grievances might leave a would-be grievant with the impression that the process is akin to a trial ¿ contentious, public, and potentially damaging to everyone involved. Many organizations do include language in their internal complaint policies regarding discipline for misuse of the process or deliberately false accusations. However, you should temper any such statements with assurance regarding confidentiality, non-retaliation, and other protections for employees who raise concerns.
I assume that the drafting of your grievance policy was not a theoretical exercise. You decided to convene a policy-drafting committee in all likelihood because there was a perceived need to define a formal process to address actual complaints that were being raised. The absence of such a policy, however, does not mean that your organization was completely without effective internal channels for the resolution of employee issues. Even in organizations where employees make liberal use of formal grievance procedures, many other issues get resolved every day through informal channels such as frank conversations among employees and the benevolent intervention of managers and other people who have earned a reputation for good judgment and integrity.
If your organization enjoys a robust informal conflict resolution culture, be thankful. But also make sure that you are doing enough to educate your employees about the option to raise more serious concerns through the grievance process. Make sure that the grievance process specifically provides for a confidential reporting procedure for complaints of discrimination and harassment. In the case of your managers, make them aware of their obligation to report such issues to Human Resources or some other designated leader of the organization. If your manager is aware of discrimination or harassment, then, in the eyes of the law, your organization is aware of it, too. Whether your organization has actual or imputed knowledge of such misconduct, it has a legal duty to act quickly to address it. If you do not, your potential for liability will be exponentially greater.
Lily Garcia has offered employment law and human resources advice to companies of all sizes for more than 10 years. To submit a question, e-mail HRadvice@washingtonpost.com. We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.