How to Respond Archives

“Interview After Employee Files a Complaint – 26 Pointers for Attending the Meeting”

Published on June 23rd, 2015 by Alan L. Sklover

“He who asks questions cannot avoid the answers.”

– Cameroon Proverb

ACTUAL “CASE HISTORY: Celeste was at the end of her rope. For 12 years she had worked as a Senior Sales Manager for a large handbag manufacturer, and had risen over time in title, responsibilities, and compensation. To say that she was highly regarded and universally admired by all who she worked with would be an understatement.

Recently, though, her employer instituted a new policy: all Purchase Orders had to be reviewed by Divisional Sales Managers for “accuracy.” Celeste was puzzled because she had never, in her 12 years, heard of “inaccuracy” in the Purchase Orders she submitted, or those submitted by anyone else. Not once. Regardless, she complied.

Shortly after, Celeste began to notice that Purchase Orders were being “corrected” by increasing the sales price by a few percent, and decreasing the large-order discounts applicable to those sales. Worried about customer complaints, Celeste inquired about the “corrections” with her Manager; she was told that it was not her job to manage her Manager.

Sensing that something was not right, Celeste called the (supposedly) confidential “Integrity Hotline” telephone number in her Employee Handbook, and left a message questioning the new “corrections” policy. Within two days, Celeste received an email from General Counsel’s office to requesting that she attend a meeting with an Outside Legal Counsel without being told the purpose of the meeting.

Celeste sensed that she had better “play” this carefully, and that this could come back to “haunt” her in one way or another. And, so, she called us for a consultation. It was good that she did, because the “meeting” was to investigate her — and her “false allegations.”

LESSON TO LEARN: At work, every now and then someone finds it necessary to question, object, or complain about something that is simply does not seem right, legal or tolerable. It could be workplace violence, a danger to health or safety, illegal behavior, bullying, harassment, discrimination, retaliation or any number of other things.

Whether it is you who filed the complaint or someone else, you might be called in to answer questions of an investigator from (a) Human Resources, (b) Employee Relations, (c) internal legal counsel, (d) outside legal counsel, or (e) some combination of these people.

Most importantly, you need to understand that, as an employee, you have an obligation to cooperate in any investigation, whether or not you believe it affects you and whether or not you want to.

But questions remain, most commonly (1) “How should I prepare?”, (2) “What should I do or say?”, (3) “Can I bring a lawyer with me?” and (4) “Could I be hurt in some way by what I say?” Because your job and career might be on the line, it is unquestionably a stressful and tricky situation.

WHAT YOU CAN DO: Based on our many years assisting in such matters, here is what we advise our clients:
Read the rest of this blog post »

“After a Complaint, the Employer’s Legal Duties to Separate and Protect.”

Published on July 10th, 2014 by Alan L Sklover

Question: Dear Alan: I am a school central office administrator who wrote a formal bullying/harassment complaint to the School Board against our Superintendent. As a result, the School Board held a special meeting and unanimously decided to hire an Outside Investigator to investigate my complaint.

I took sick leave for a week after filing the complaint due to stress, but now would like to return to work if possible. However, the School Board did not put the Superintendent on administrative leave while the investigation is being conducted.

So, when I go back to work he will still be in a position to bully me, retaliate against me, and make life miserable for me. He is a serial bully and I either had to live with it or do something. I do not want to put myself in a precarious position where things can get worse.

What is your advice on this matter? Request that the Superintendent be put on leave? Request to work from home? Take medical leave?

I love your website and have learned lots from it. Thanks for your help.

Belinda
Layton, Utah

Answer: Dear Belinda: The School Board is doing one half of what the law says it must do. It would be wise to remind it of the second half of its legal responsibilities to you:

1. After receiving a complaint of bullying, harassment, discrimination, hostility or the like, an employer has two legal duties: (a) first, to Separate and Protect, and then (b) second, to Investigate. When an employer is in receipt of a complaint about another employee, the law provides that the employer has two legal duties to the person who submitted the complaint. The first duty – and truly the most important of the two – is to separate the parties to protect the complainant from further possible harm by either (a) more bullying or (b) retaliation for having filed the complaint. It cannot simply wait until it is certain of what took place to fulfill its primary duty to you, that is, to protect you.

Just in case you haven’t yet put your complaint into writing, we offer a Model Complaint of Discrimination, Harassment or Hostility you can adapt to your own facts, events and circumstances. “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly! 

2. There are many different ways an employer can fulfill its legal duties to “Separate and Protect.” Here are just a few of the ways an employer can fulfill its duty to “Separate and Protect”: (a) change the duties of one or both of the parties to avoid direct contact; (b) change the location of employment of one or both of the parties to avoid direct contact; (c) change the days and times of employment of one or both of the parties to avoid direct contact; (d) place one or both of the parties on leave of absence to avoid direct contact; (e) require that all communications between the parties be supervised; (f) require that all communications between the parties be in writing; or (g) devise some other means of both “separating and protecting.”

3. It is not the employee’s decision to make, but the employer’s decision to make, regarding which way or ways “separating and protecting” should be accomplished. Because it is the employer’s duty to fulfill, it is the employer’s job to determine which way or ways it should be accomplished. In fact, it is important that the employer make this decision, because if additional abuse by either (a) continuation of the initial bullying, harassment, discrimination or hostility, or (b) retaliation, takes place, it is the employer who will be solely responsible for any damages that ensue.

4. That said, there is nothing wrong with the employee – or his/her physician or therapist – requesting that one or more measures be used to “separate and protect.” You and your physician and/or therapist know you best, and know what you believe would be best to avoid what you refer to as “the precarious position where things could get worse.” First, if you are seeing a physician or therapist to help you deal with this bullying, I suggest that the physician or therapist might be the one to best guide you in this choice.

Any suggestion from you to the School Board on this subject should be (a) in writing, (b) quite respectful, (c) clear in that your suggested measures are suggestions, only, and not demands, and (d) clear in how your suggestions would, in your mind, best accomplish the task at hand: protecting you from further bullying and possible retaliation.

5. Like all important communication regarding workplace issues, your communications with the School Board should be in writing and sent in a “verifiable manner.” As I always say in this context, “Say it with your fingers, not with your lips.” When you communicate by spoken words, exactly what you say, what you didn’t say, and exactly how you said what you said, is not often remembered correctly, or can be mischaracterized, and often a subject of later debate.

However, if you “say” it in writing, and you send it in a “verifiable manner” such as email, UPS or FedEx, then these issues will not likely arise, because you have created a solid “record” or “history” of what was said, by whom, to whom, when and in what way. That memorialization of communication is a critical part of successful navigation and negotiation at work.

I strongly recommend that you write to the School Board, remind its members of their “duties to separate and protect,” and consider suggesting the way or ways you think it would best do just that.

We offer a Model Memo for Requesting Protection from Further Abuse and/or Retaliation after Filing a Complaint. It shows you “What to Say, and How to Say It.” To obtain a copy, just [click here.] Delivered by Email, Instantly

Belinda, your concern is real and your thought about taking a step to address it is both wise and brave. I hope this confirms that you are on the “right track,” and helps you travel down that path. My hat is off to you for having the courage to stand up to a bully boss. Bravo!!

My Best to You,
Al Sklover

P.S.: If things don’t work out, do not despair and do not resign. Instead, consider a “Model Involuntary Resignation.” It shows you “What to Say and How to Say It,™” To obtain a copy just [click here.] “What to Say and How to Say It”™ 24 Hours a Day. Delivered Instantly by Email – Instantly. 

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“Directed by my employer to discriminate; what can I do?”

Published on April 18th, 2012 by Alan L Sklover

Question: Alan, I have been employed for over one year in a temp staffing agency. I have reached my limit in having to discriminate against people of color, and older people, and now pregnant applicants. Because I will no longer follow the temp agency’s “guidelines” for who to hire, my job is now in jeopardy.

Already two employees are suing the company for their outright discrimination. I have been working in temp staffing agencies for a long time, and this is by far the top one when it comes to discrimination. I have a ton of email in which I am told the “kind” of applicants to hire. There is good reason to believe I may soon be replaced, and on trumped-up charges.

Now I feel forced to quit. This agency is pretty big, and I am scared of retaliation. Please – what can I do? 

Tired of Discrimination
Milwaukee, Wisconsin  

Answer: Dear “Tired”: Your situation is definitely one that calls for some strategizing, and action. Here are my suggestions:     

1. First and foremost: Don’t fret; make a plan. In any difficult situation – and I would definitely describe your situation as difficult – we have a choice to make: fret or plan. To help yourself, and to gain the best treatment possible, planning is the way to go. There are several steps that can be taken as part of your “self-protection plan.”

2. Understand that no one can help you if you don’t help yourself, and helping yourself will take some courage. Imagine asking a doctor to help save your life, but saying to that doctor “Doctor, please save my life. But understand that (a) I am a very busy person, (b) I don’t want to feel any pain or discomfort, and (c) I want to make sure that I don’t have any risks from any medicine, procedure or operation.” Do you think that would be reasonable? Of course not. Well, solving this problem at work may require dealing with fear of retaliation, and some discomfort, and dealing with some risks, as well. But not dealing with a situation like yours is likely to bring about greater problems, not less.

By the way, if you are (a) unhappy, (b) about to be fired, (c) and ready to quit, do you really have anything to lose? You know, in negotiation there is a saying, “The person with the least to lose has the most to gain.” Think about it. 

3. Consider filing a formal complaint with the state and federal employment rights agencies in your city. What you describe is (a) illegal employment discrimination, and (b) illegal retaliation for objecting to that illegal employment discrimination. Our society has decided that these problems are so important that both our states and our federal government have established agencies to help people in your situation. These agencies are generally good at what they do and most employers are concerned – sometimes even afraid – of the potential power they wield. If you file a formal complaint with one of these agencies, you will be somewhat “protected” from further abuse and retaliation because how your employer treats you afterward will be “under a microscope.”

The Wisconsin Equal Rights Division (part of the Wisconsin Department of Workforce Development) is the state agency that can help you. They have a Milwaukee office at 819 North Sixth Street, Room 723, Milwaukee, Wisconsin 53203. Their phone number is (414) 227-4384. Their website address is http://dwd.wisconsin.gov.

The Milwaukee District Office of the federal Equal Employment Opportunity Commission (“EEOC”) has an office at 310 West Wisconsin Avenue, Suite 800, Milwaukee, Wisconsin 53203-2292. Their phone number is (800) 669-4000. Their website is www.eeoc.gov/field/milwaukee.  

4. Though you are concerned about retaliation, I suggest you send a respectful email to your employer’s HR department, objecting to what is going on, and mentioning that you have been in touch with the state and federal agencies. If there is one thing that so many people don’t understand, it is that they are safer from retaliation if they complain about the retaliation, in the right way, which is always by email.

Imagine if a neighborhood bully hits you every time you see him. Is he more likely to stop if you have told the police? If you have hired a bodyguard? Either way, I think yes. That is the equivalent of standing up to an employer’s abuse, humiliation and discrimination. In my experience, it is more likely – no guarantees, though – that retaliation will not take place if you have filed both (a) complaints with your employer detailing what you have experienced, and (b) complaints with state and federal agencies, and your employer knows that you have.

We offer a Model Letter entitled “Pre-emptive Anti-Retaliation Letter to Board Chair” for this purpose that you might find helpful to say, in effect, “What the company is doing is being watched.” To obtain a copy, [click here.]

5. Speaking of “bodyguards,” you might also consider getting to know a local employment rights attorney. Contacting and having an initial consultation with a local employment rights attorney may prove helpful, on several levels: (a) you may be able to gain valuable information, as your attorney will likely have experience with local laws, in local courts, against local employers, (b) it may give you added confidence knowing you have someone “in your corner” available to you who is on your side, (c) your employer might be more reluctant to further retaliate against you if it knew you have someone on your side, and (d) if you are, indeed, further retaliated against, you would have someone available to you to take quick action to remedy the situation.   

6. If you don’t get this resolved rather quickly, I suggest you consider an “Involuntary Resignation.” As you may know, I have sort of “invented” a new concept called “involuntary resignation.” This means that you are leaving your job, not voluntarily, but “involuntarily.” By making a written email record that you have been forced to resign due to the circumstances, and that this is an “involuntary” resignation, this can preserve your right to collect unemployment insurance benefits, to later sue if you decide to do so, to get severance, and to any other legal rights that may arise – now or in the future. For you, “Tired,” this should be far better then simply resigning.

For great info and insight, consider viewing our 12-minute Sklover-On-Demand Video entitled “Involuntary Resignation.” To do so, just [click here.] 

If you would like to obtain a Model Letter that you can adapt and use to “Involuntarily Resign,” just [click here.]

“Tired,” no one can guarantee any of us that life will be easy. But, if you make a plan, follow your plan, and “stick to your guns,” life will be at least a little “less un-easy.” Standing up for yourself is never an easy thing to do, but once you get the hang of it, others can tell you are not someone they would be smart to abuse. I wish you good luck in doing so. 

My Best,
Al Sklover

Repairing the World –
One Empowered and Productive Employee at a Time ™   

© 2012 Alan L. Sklover, All Rights Reserved.

“I fear the consequences of filing a complaint; any suggestions?”

Published on February 28th, 2012 by Alan L Sklover

Question: I am contemplating filing a grievance at my workplace. I know the decision must be my own. I FEEL abused by a hostile person. I can provide some information with emails. But I’m (to put it bluntly) scared.

I’m concerned that people more powerful than myself will put together a case that will tear me apart. These past few days I feel like I cannot take another day. That being said, what can I use to weigh the circumstances and make a firm, correct decision?

Eleanore
New Milford, Connecticut

Answer: Dear Eleanore, Your letter is like so, so many other letters I receive. What you are feeling is like what so many other people feel. At least you know you are not alone. Here are a few thoughts that, I hope, will help you decide what to do:   

1. You have already taken the most important step forward: you decided to make a decision. No matter what you decide to do, at least you have owned up to the fact that the decision is yours to make, and the consequences of your decision – or non-decision – are yours to live with. We’re all faced with decisions every day – whether or not to exercise, whether or not to eat well, whether or not to undergo a serious surgery – each of which may have significant consequences. Far too often many people think they can just avoid a problem situation by avoiding a decision about what to do, with the hope that the situation will simply “go away” on its own. They never do. Instead they fester, and almost always get worse.                              

2. “When fear knocks on your door, send faith to answer it” is one of my favorite sayings. Fear is such an interesting phenomenon: It is like a self-imposed jail that we use to limit our own freedom. Others can’t make us feel fear: only we can put it on ourselves. Most fear is fear of the unknown, and so really has no basis. I say it often, and in fact often to myself: do not live in fear, do not act in fear, do not fail to live due to fear. The more I listen to and follow that “mantra,” the happier I turn out to be, because I’ve learned, that, as Roosevelt said, “The only thing we have to fear is fear, itself.”  

3. “Action is the antidote to despair” is another of my favorite sayings. One thing that might help you is the truth of this saying: when you start to “do” something, fear just dissipates, degree by degree by degree. Living in fear leads to despair; taking actions in spite of fear makes despair go away. Sooner or later, you have to decide if you are going to be a fearful person the rest of your life, or if you are going to be “adult” about things and “confront” your fears. The sooner you confront your fears, the sooner you will feel that veil of despair lift and disappear, and the sooner you will actually begin to enjoy the process of acting against, or in spite of fear.

4. Standing up to Bullies is the best way to stop them. The first time anyone stands up to a bully, or even thinks about doing it, they fear retaliation, retribution and even greater bullying. Though it is, I’m sure, hard to believe, the exact opposite usually happens: the bully finds a different, passive, willing victim who won’t fight – or bite – back. I say that not just as an attorney who has helped people stand up to bullies for 30 years, but as someone who has had to stand up to bullies in his own life, more than once. I, too, feared the retaliation, retribution and even greater bullying. Experience has taught me that the opposite takes place. In fact – and please don’t quote me – I have come to the point where I actually enjoy standing up to bullies, to see them in disbelief, to see them squirm, to see them run away, to see them learn a lesson: “Even the little old lady on the subway might have a can of pepper spray in her pocketbook.” I know this is a matter of faith, but like the saying goes, “When fear knocks on your door, send faith to answer it.”

5. Health should always come first. As the saying goes, “If you don’t have your health, you don’t have anything.” This, more than anything, should be the guiding star of your decision. It’s hard to figure out what would risk your health more – filing a grievance or not filing a grievance. But I think that your “inside” or “instincts” will guide you in this decision.

6. People tell me that the “pain” of possible retaliation is far less “painful” than the “pain” of certain daily abuse. My clients have reported this to me, too. The daily “pounding” of hostile and abusive behavior has a way of eroding self-esteem and self-confidence, and then even sleep and health. Eventually the dehumanization results in making you a “zombie” of sorts. On the other hand, saying through your actions and demeanor, “I am a human, we have rules, and I won’t take your nonsense anymore” has the opposite effect – on the bully, but on you, too. It is self-affirming, it is humanizing, and it is revitalizing. Sure, from my battles with bullies I have a few “bumps on my forehead,” at least there is a smile on my face, and I enjoy waking up to each new day. And, too, deep down inside I know I have done what I always should have done. But better late than never.

7. What are you really afraid of? Can the bullies really do anything more, or worse, to you? You write that these past few days make you feel like you cannot take another day. Could it be much worse? Eleanore, I don’t know your financial resources, but even getting fired seems like it would be better than losing your emotional, mental and physical health, no? If by this account you have nothing to lose, then by definition you have everything to gain. In any negotiation, the person with the least to lose usually wins the negotiation.

8. A well-prepared and well-documented grievance is a powerful thing. You might ask a friend to help you, or to be your editor, or even to be there for emotional support. Even if you don’t submit your grievance, I suggest you prepare an organized, respectful and detailed grievance – just for the “fun” of it. Even if you don’t send it, I think the process of preparing it will be helpful to your emotions, and help you make your decision. I think when it is complete, that alone will make you feel better about what you have accomplished. I think this process will make the fear disappear at least a bit, and you will be able to see more clearly than you have in a real long time.

We have available a Model Letter entitled “Anonymous Report of Bully Boss Behavior,” for those who are concerned about potential retaliation. To obtain a copy, just [click here].

9. And don’t forget the “Extraordinary Power of Purpose.” Got children? Loves ones? A spouse or partner? Parents? Siblings? If you remember that one of the reasons you work is to be there for them if and when they need you, you will have a purpose outside yourself, a better reason than yourself to stand up for yourself, a strange kind of strength, resolve and determination that you didn’t feel before. When you are standing up for those you love, all of a sudden you’ll find courage that you didn’t know was there before. I urge every one of my clients in your situation to keep a photo of loved ones nearby – in a pocket or purse – to remind you of this “extraordinary power of purpose.”    

Eleanore, because I don’t know you, I can’t help you weigh the particular “pluses” and “minuses” of filing a grievance in your situation. But I do hope that these thoughts are of some help to you in that process. You have a lot of courage inside of you, and I hope and pray it will rise to the surface and guide you in whichever path you choose.

My Very, Very Best,
Al Sklover

One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

“How can I prove retaliation has occurred?”

Published on October 19th, 2011 by Alan L Sklover

Question: My employer has a policy against retaliation for objecting to impropriety, dishonesty or illegality. I objected to one of them by filing a grievance, and then one month later I was chosen for a layoff for supposedly financial reasons.

How do I prove this is retaliation?

Larry
Milton, Washington

Answer: Dear Larry, Your question is an absolutely great one, because it comes up all the time, and is the subject of many, many court decisions. Let me explain:  

1. There are three parts to establish when proving illegal or improper retaliation. As a general matter, the law says that to prove retaliation we need to show (i) First, the employee was engaged in a “protected activity,” such as your objecting to impropriety, dishonesty or illegality; (ii) Second, the employee must show that he or she suffered a “negative employment action,” such as losing your job; (iii) Third – and here’s the tough part – the employee must show a “causal connection” exists between (i) the protected activity, and (ii) the negative employment action. Those are the three “elements of proof” of an illegal or improper retaliation.

2. The problem is this: any motive (including a retaliatory one) is in the mind or heart. Why people do things is something that exists in their minds or their hearts, and is not “written on their foreheads.” Frankly, people often don’t even know, themselves, exactly why they have done things.

I often say to prove what is “between the ears” we should look at (a) what has come out of their mouths, or (b) what they have written with their fingers, or (c) what other actions they have taken. So, if someone said, “I will fire Sue because she filed a complaint,” or wrote that in an email, or claimed Sue did not sell 100 homes in one day, while that has never been accomplished once in the whole history of the company, then we have some proof of retaliatory motive.

3. So, to prove retaliatory motive we need to show things (a) said, (b) written, or (c) actions taken, and Courts have recognized many. Here are some “indicia of retaliatory motive” that Courts have accepted: (i) temporal proximity, meaning that the firing was close in time to the report of illegality, such as ten minutes after; (ii) retaliatory motive expressed in words spoken or in emails or documents written; (iii) frequent discipline against the employee for plainly trivial matters; (iv) treatment of the employee different than treatment of other employees; (v) increased or inordinate scrutiny of the employee’s work; (vi) unwarranted criticism of the employee’s performance or behavior; (vii) the employer’s failure or refusal to use established investigative or disciplinary procedures; and/or (viii) the employer’s offering obviously false reasons for the negative employment action, what lawyers call “mere pretext.”

4. “Temporal proximity” is usually all that employees raise; most courts find it generally insufficient. In my experience, employees and their attorneys make the serious error of raising only “temporal proximity” to establish retaliatory motive. While it is sometimes accepted by courts as convincing, much more commonly it is found insufficient.

5. Because retaliation is so very common, we devote a great part of our blogsite to videos, articles and model letters to help you help yourself in this circumstance. We believe that people should not be afraid to stand up to retaliation.

To help people do just that, we offer a Model Letter to object to retaliation. To obtain a copy, simply [click here].

Our Resource Center also contains articles to read about retaliation, to review them [click here]. We also provide consultations for those who desire them. To learn more [click here].  

Larry, do consider standing up to what happened to you. Standing up to being treated wrongly is, in itself, a positive thing, which makes one feel better; being a victim is humiliating, depressing and disheartening. Standing up is the exact opposite: inspiring, invigorating and energizing. That is not only what I say: it is written all over history, and in the Bible, as well.

Thanks for writing in. As may be evident, I literally enjoy helping people stand up to the evil that is retaliation for doing what is right. And I’d love to see more people stand up in that way.

I hope and pray this helps you, and all others who read it.  

Best, Best, Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

Receive All Our Posts - It's Free!

Monthly Newsletter, Discounts, Events