Most employee handbooks encourage employees to speak to their employer about anything they feel is unfair or illegal. Typically, this is referred to in employee handbooks as an “Open Door Policy.” However, most employees are concerned that if they walk through this open door, pointing out the employer’s wrongful conduct, they will become a target and, rather than the problem being addressed and resolved, they will be the victim of retaliation. At Saenz & Anderson, we often receive calls from potential clients who are facing this very dilemma. We are here to help. There is a way to lodge a useful complaint which addresses the issue and minimizes the likelihood that you (the employee) will be retaliated against. The complaint should be in 1) writing, 2) addressed to the correct supervisor, manager or human resources employee, 2) include facts, 3) state the problem and 4) offer a solution.

A complaint that is not written is simply not useful. If you are going to address an issue, it is highly important to do so in writing, preferably an email. Why? Well, one reason is that this prevents the employer from later denying that you complained or that the employer had any knowledge of your complaint.

It is also quite important that your written complaint is addressed to the correct person. If available, follow the policies and procedures provided by your employer, typically in the employee handbook. Following the policies and procedures provided by your employer will prevent your employer from arguing that your complaint was not received because it was not sent to the right person. If guidance regarding what to do when you have a complaint is not provided by your employer, then you are encouraged to complain up the chain of command, beginning with your immediate supervisor or manager, then to their immediate manager if the issue is not properly addressed. Even if your complaint involves your immediate superior, do not hesitate to send it because your complaint will allow them to correct their wrongful conduct. If you are not satisfied with the response to your complaint, do not hesitate to complain to human resources.

In addition to your complaint being in writing, addressed to the correct person, it should include facts, and reflect your interest in reaching a solution and continuing a positive employment relationship with your employer. Accordingly, we often encourage employees to state the issue specifically by including a brief set of facts. Typically, when employees complain they make conclusive statements, such as: “The company is violating OSHA.”

We encourage employees to rephrase their complaint, so that it reads more like the following:

“It has come to my attention that my manager has known for several days that a co-worker was recently diagnosed with Covid-19, but did not inform anyone in our department of the possible risk or provide us with a mask, gloves or any protective gear to prevent the spread of Covid-19 at work. I am bringing this to your attention because I feel like this may be a violation of OSHA, and ask that you look into this issue. I want us all to be safe at work.”

The latter is still a valuable complaint, but it provides facts to the employer, and it expresses a desire to problem solve rather than just complain. Furthermore, it does not scream “I’m going to sue you,” and therefore minimizes the possibility of retaliation by the employer.

However, we all know that retaliation in the workforce is real! If you are still the victim of retaliation despite your carefully crafted email, the latter complaint will be quite useful in a lawsuit brought against your employer. First, it provides sufficient facts and places your employer on notice of its conduct, the damages that may result, and the potential related violations. In other words, your written complaint would be vital evidence in litigation because it will prove that your employer had the requisite knowledge and did not correct its wrongful conduct. Furthermore, if your case proceeds to trial, a jury will likely have compassion toward someone who attempted to engage in problem solving with their employer rather than someone who simply whined or complained.

At Saenz & Anderson we specialize in the litigation of employment related matters, and have had great success litigating retaliation claims. If you feel that you are a victim of retaliation, please do not hesitate to contact our office for a free case evaluation.

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