[SMB Essentials] Managing Employee Complaints During Performance Reviews

[00:00:00] So there's something that shows up in HR often enough that I tell my clients not to stress too much about it, and that is a counter complaint. So this is what happens when an employee is placed on some sort of performance improvement plan or performance management, or they've been disciplined, and then seemingly out of the blue, they're formally complaining. And you, instead of having to deal with one issue, now have two to manage.

[00:00:25] This is an episode, though, dedicated to small and medium business owners for whom this can be really frustrating and sometimes scary. So what is actually happening? Why does it happen? And what are you supposed to do about it? That is coming up now. Hi there, I'm Andrea Adams. I'm the host of The HR Hub. That's where you are right now.

[00:00:46] Now this episode is part of my series I'm doing for small and medium business owners who may not have in-house HR, or if they do, they don't have the skill to handle situations like this. So first, despite the suspicious timing of this complaint that's just come in, you can't ignore it. You have to deal with it right away.

[00:01:09] Thing is, sometimes these complaints are totally legitimate. It is reasonable that there are bad managers out there and that you happen to have one on staff who's creating a terrible work environment for their employees.

[00:01:22] Of course, like, of course managers can say or do inappropriate things. Employees under that manager may have been harboring the grievance for a long time, but they've avoided bringing it forward because it's a career-limiting move for them to do it. But once they're in some sort of performance management process, they have less to lose.

[00:01:47] So you can't assume that just because the timing is suspicious that it is a true retaliation. Now I say that, but also your instincts are not wrong either. I know of so many complaints that have come forward specifically because an employee is avoiding accountability or that employee is scared. And in their head, it's totally unfair.

[00:02:14] The complaint, their complaint, creates leverage for them, a distraction, more attention. It can slow the whole process down, which in itself is appealing for them. Whenever this happens, you do need to proceed with both possibilities. One, that the employee is lashing out because they're being managed. Or two, they're speaking up because they've been dealing with a really difficult situation for a while, but now they have less to lose than they did before.

[00:02:43] So now what? You're trying to performance manage someone and you have a complaint. What do you do? Well, first of all, you need to get that investigation happening quickly. I personally think it's advisable that you stop performance management. I'm sure there are probably cases where I would advise differently. But if you continue with performance management and the investigation finds that, in fact, the employee's allegations were true,

[00:03:11] by continuing the investigation, you were complicit in the harassment or the discrimination, whatever the complaint was. And that is potentially some liability. But when you pause the performance management, what you should also do is document the reason you're pausing it and saying that you're allowing the investigation to run its course uncomplicated by performance management. At this point, you're not conceding that they're right.

[00:03:41] You're saying this is a procedural thing we're going to do. Regarding the documentation, I would think that you've been giving the employee documentation along the way related to the performance management. So it's not completely out of the blue that you're going to give them a letter saying, we're going to pause performance management while we let the investigation run its course.

[00:04:03] And we'll pick up with the performance management where we left off should, you know, the findings not be in your favor. So if something arises while the investigation's happening, you've paused performance management and suddenly the employee acts out again, you can manage that. Be thoughtful about the particular set of circumstances that have arisen to this behavior. And manage accordingly, mindful of all the things that are going on.

[00:04:33] I can validate you though throughout this whole thing. This is going to feel awkward and you aren't crazy to feel that way. With regards to the investigation, make sure you get it done fast. Most investigators will do that or if you have someone in-house that will do it, make sure they get it done fast. At this point, it makes sense to refer to a video I did on the types of complaints that require an investigation.

[00:05:03] And you can see that video on my channel. So once the investigation concludes, you've got to act on the findings right away. Either the employee is validated and their complaint is founded, or you still have outstanding performance management issues. If the complaint is substantiated, I'm not going to talk about this too much, but you need to take appropriate action.

[00:05:30] It's likely that the performance management needs to end and you should end it in writing, and that you need to deal with the source of the complaint, and that is a totally separate topic. If the complaint is unsubstantiated, which is the majority of the focus of this video, you resume the performance management process right away. So you'll note here that I used the word unsubstantiated. Sometimes when the investigation findings come back,

[00:05:59] and they are not in favor of whatever the employee is alleging, we're sometimes inclined to say they were lying. Well, maybe, but probably not. In my experience, a lot of employees genuinely don't understand the conditions that must be present to have a finding of discrimination or harassment or hostile work environment. But in the midst of a process like performance management, they're so uncomfortable,

[00:06:29] they conclude it must be one of those things. Lying, it's difficult to prove that they intentionally told falsehoods. But back to performance management. When you resume the process, tell the employee directly. You'll say something like, the investigation is complete, the findings didn't support your complaint, and the performance management process is resuming on such and such date. Document the conversation.

[00:06:57] Really, in this whole process, you can't document too much. And the documentation matters because months down the road, you're not going to remember the timing and the reasons for what you did, even if it seems so clear to you in the moment. If you're ever asked in court, documentation also goes a long way to substantiating, validating the reasons and the logic of what you did.

[00:07:22] The one thing you cannot do in this whole process is let that complaint derail your performance management. That would send the message to the rest of your organization that a complaint is how you stop accountability. This is clearly not a message you want to send. And for sure, there are some more complicated things that may come up within this process, that the findings of the investigation are inconclusive,

[00:07:51] which I suggest might have indicated a problem with the investigation, or the employee makes even another complaint. At that point, it's probably wise to consult with a professional, either HR, legal, professional investigator. We all know about these types of situations. So that is it, folks. In summary, if you get a complaint from someone who's being performance managed,

[00:08:21] in most cases, you'll pause the performance management, conduct the investigation properly and quickly. If the complaint is unsubstantiated, you'll resume the process of performance management right away and tell the employee you're doing it, and you're going to document everything along the way. If you still have questions, I'm an HR consultant to small and medium businesses, and I'd be happy to have a chat with you. The first 30 minutes are free.

[00:08:49] My contact information is in the show notes or on my website. And as I said earlier, I did two other episodes on complaints, those with the legal angle and those that are more about morale, but they're really draining. Both links are available on my YouTube page or on the side of the screen. That's it for today. Have a great week. Thank you. Thank you.