B. Communication And Complaints

When judging performance, remember that not all jobs can be rated the same way. Often, an employee will be upset with his/her performance evaluation or some other non-related concern. Open lines of communication are important in any organization. One way to anticipate and prepare for a disgruntled employee's termination lawsuit is to be aware of his/her perceived problem before legal action is contemplated. Thus, workers should be encouraged to present their complaints to management either during their employment or at the time they decide to resign. Many complaints can be resolved before the situation gets out of control and your company should establish an effective procedure for receiving and acting upon all employee complaints. In addition, when juries hear testimony regarding a company's alleged callous treatment of a terminated worker, they are often impressed by additional testimony offered from the other side which establishes good-faith efforts by the company to correct problems before they become unmanageable.

Some companies establish internal complaint mechanisms for handling problems. If an employer has established a credible internal complaint resolution procedure, problems can be detected before a request for termination is made. Employees who feel they are being mistreated can appeal a poor performance appraisal or memo which they believe is unfair; this gives the employer an opportunity to review the situation and determine if a remedy is necessary.

TIP: Some companies have stated policies, for example, where complaints are first addressed with the immediate supervisor. If the problem is still unresolved, or the worker feels uncomfortable discussing it with his/her immediate supervisor, the complainant is instructed to contact the plant manager. As a final resort, if the matter is still unresolved, the complainant may discuss it with the president of the company.

Such an informal internal complaint resolution procedure offers the following advantages:

• It may give the company warning of an employee's grievance, and possibly of a developing type of grievance.
• It may give employers the opportunity to correct poor managerial decisions before an employee is discharged or resigns.
• It may permit disputes to be settled quickly, at minimum cost.
• It may give the company a defense in the event that the employee failed to exhaust internal administrative procedures before bringing a lawsuit.
• It may demonstrate the company's good faith to a jury.
• It may build employee morale by opening lines of communication.
• There are, however, disadvantages to a formal internal complaint resolution policy, particularly one that is poorly designed or administered. Such a policy contained in a company handbook may enumerate strict rules and methods of handling disputes. For example, some company policies give workers the right to be represented by an attorney at a formal hearing, receive a written response from a committee within a specified number of days after the complaint is received, and allow the employee the right to challenge the formal decision by an appeal process which eliminates the possibility of the worker's termination during the process. Other policies specifically state that all company decisions must be based on concrete facts supported by proper evidence.
• Although well intentioned, such formal policies can create problems for your company. For example:
• They may give rise to discrimination liability if the procedures are not applied uniformly.
• They may cause companies to lose flexibility and create an incentive for some employees to delay discharge by appealing their dismissals.
• They may cause antagonism in the workforce.
• They may be viewed by employees as a mere "rubber stamp" of previous management decisions.
• They may supply the employee with valuable information for use against the company in the event of litigation.

TIP: An actual case illustrates this last point. The author recently represented an employee who had been discharged. At his termination interview, the company stated one reason for his dismissal; at a complaint resolution hearing after dis- charge, a completely different reason was offered. Both reasons were factually incorrect and legally insufficient in his particular case. The second false reason given at the grievance hearing confirmed the employee's belief that he had been dismissed unfairly and the author was able to negotiate a substantial out-of-court settlement as a result.

Counsel Comment #94: Informal internal complaint resolution procedures can help companies evaluate termination decisions and correct mistakes (such as inadequate raises or promotions) before they wind up in court or before a federal or state agency. However, all procedures should be applied uniformly to prevent discriminatory treatment. Finally, your company may wish to avoid establishing formal procedures for the foregoing reasons.

Open Door Policies

Is an employee entitled to a chance to improve her job performance after bringing a complaint as suggested in a company's open door policy?

Many courts recognize that a company's policy manual or handbook can modify an employment-at-will relationship. If language in the handbook constitutes a firm offer and the offer has been communicated by dissemination of the handbook to the employee, the next question to be considered is whether the offer has been accepted and consideration furnished for its enforceability. Where an at-will employee continues employment with knowledge of new or changed conditions, the new or changed conditions may become a contractual obligation. Therefore, be sure that you are not giving an employee a legal, secure right to discuss and attempt to correct inadequate per- formance before being able to fire.