Defending Employers: What to Do Before Employee Files a Claim
Most employer liability problems start small. An employee complains and the employer either reacts too slowly or improperly. That can risk serious problems. As an employer, the best way to address a complaint from an employee is to act before there is a formal claim. A fair, unbiased and proactive approach is the best approach. Here, our California employment lawyer for preventing claims highlights the steps that you can take before a claim is filed.
Step 1: Treat Every Employee Complaint Seriously
Employee complaints can never be viewed as frivolous. Do not debate labels at the outset of the process. To comply with California law, all employee complaints should be treated seriously and investigated properly. A complaint about unfairness can become a retaliation claim if it relates to discrimination, wages, safety, leave, or other protected conduct. The right mindset can go a long way towards helping employers resolve these problems.
Step 2: Acknowledge Receipt of the Complaint in Writing
A fair, unbiased and responsive approach to an employee complaint is a must. Make sure to confirm, in writing, that you received the complaint. As part of that written confirmation, it is a best practice to provide an (approximate) timeline and overview of next steps.
Step 3: Get a Timely Statement from Relevant Parties
Ask the employee for a written statement or take a signed intake memo. Lock down dates, locations, witnesses, what was said, and what the employee wants as a remedy. Ask about documents, texts, or photos. Do not pressure the employee to “keep it informal.” That posture can backfire later.
Step 4: Preserve Evidence; a Key Step for Employers
Issue a narrow preservation notice. Suspend deletion for relevant custodians. Pull time records, schedules, productivity reports, Slack or Teams messages, and security footage before it cycles out. If wage and hour issues appear, audit timekeeping practices immediately. Fixing a process now can reduce ongoing exposure, and document the business reason for any change.
Step 5: Put Interim Guardrails in Place as Appropriate
The California Fair Employment and Housing Act (FEHA) strictly prohibits retaliation. As an employer in the Bay Area that is facing an employee complaint, you should avoid any appearance of retaliation. It is important to put interim guardrails in place as appropriate given the specific circumstances. An employee cannot lawfully be punished for raising a complaint, even if it turns out later to be unfounded.
Step 6: Run a Structured Investigation with a Defined Scope (a Lawyer can Help)
Employers should define the allegation, the policy at issue, and the time window. A comprehensive overview of the case can help to resolve the issue. Among other things, it is the best practice to build an interview list. The investigation must be fair and unbiased. Employers should generally start with the complainant, then witnesses, then the accused. A fair and unbiased interviewer should ask the same core questions in each interview. Take notes that capture facts. Who should conduct the investigation? That is often best left to the overview of a California employment lawyer.
Speak to Our California Employment Lawyer for Employers Today
Lynnette Ariathurai is a California employment attorney for employers who is committed to solutions-driven representation. If you have any questions about how to prevent employee claims, please do not hesitate to contact us for a completely confidential, no obligation case review. From our Fremont law office, we provide employment representation to employers throughout the Bay Area.
Employee claims, employee discrimination claims, employee harassment claims, employee retaliation claims