The Dialogue — one of the more popular recurring posts — returns for the third time. Does that mean the third time’s the charm? Or is it three strikes and we’re out? In any event, Nina Pirrotti of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, P.C. returns for this installment where an employee-side and employer-side attorney discuss the issues of the day. Today’s topic discusses the lay of the land when an employee files a complaint against his or her current employer. Well, that and Unicorn Frappuccinos….
Nina Pirrotti: It is that time, once again for the two of us to lock horns, I mean engage in a spirited discussion about, how we both help our clients to navigate thorny issues which arise in the workplace. One such issue is how to advise our clients when an employee has alleged discrimination while she is still employed with the very employer she is accusing of wrongdoing. Wow. I feel a knot forming in my stomach just contemplating it!
There are many complexities inherent in this scenario at each stage, from how the complaint is initially expressed, to the manner in which it is investigated, to whether the employee who complains should stay or go (or something in the middle like a leave of absence) to various resolution options. In fact, I feel so strongly that employees and employers often botch one or more facets of this fraught situation that I proposed it as a subject for a panel at NELA’s annual employment conference this June and I will be speaking on that panel!
I think I will start the ball rolling by saying that my biggest fear is that clients who remain working in a hostile work environment often feel so powerless and outraged by their situation that they are vulnerable to doing everything wrong from making more frequent mistakes to lashing out at supervisors or peers or far worse. I used to save my admonishments about refraining from such behavior for my less sophisticated clients until it became clear that my C-Suite executive clients were just as likely to partake. Now, no matter who my clients are, a big part of my counseling session revolves around how they should conduct themselves in the workplace. If anything, I want them to strive even harder to be consummate professionals, above reproach. My most common refrain is: Do not arm your employer with a legitimate justification for terminating you!
There is so much to territory to explore here, Dan, but, could you highlight for me one or more of your biggest concerns when a client comes to you and says one of its employees has alleged discrimination or harassment in the workplace?
Dan Schwartz: Locking horns, eh? Perhaps you’ve had one too many Unicorn Frappuccinos (R.I.P.) from Starbucks. Alas, I do tend to agree with you that this is one area where rainbows and happy endings are rare.
When I hear about current employees who bring suit against their employers, I tend to think an apt comparison may be the spouse that files for divorce but the couple still has to live in the same house. It’s awkward. Everyone is walking on eggshells.
The fact is that one big concern I have for employers in this situation is to avoid a retaliation claim. You say you encourage employees to be “above reproach” and I wish that were always the case, but sometimes employers will get these types of claims and they’re in the midst of either terminating or disciplining an employee — what then? If they do so after the claim, they’re opening themselves up to a retaliation claim. And we know how nasty those can be. (Documentation is critical.)
But if it’s a harassment complaint that the employer gets, it typically becomes a real fire drill — drop everything and begin an investigation. That investigation may or may not need your client’s help, Nina. So what do you do in that situation where an investigation pops up?
Nina: Ok – you got me. I couldn’t resist looking up the Unicorn Frappuccino on Google after my husband assured me you weren’t making it up. This is how Starbucks describes it: “Magical flavors start off sweet and fruity transforming to pleasantly sour. Swirl it to reveal a color-changing spectacle of purple and pink.” It sounds like a liquid nightmare. Hmmm could the Unicorn Frappucinno’s “magical flavors” be a metaphor for the very type of employer-employee relationships of which we are speaking?!
Continue Reading The Dialogue: Workplace Complaints and Happy Endings As Rare As Unicorn Frappuccinos?