Imagine this all too-familiar scenario:
A company makes the difficult decision to terminate an employee’s employment due to poor performance. This should come as no surprise to the employee, who has been counselled and disciplined on numerous occasions. Yet, the employee expresses shock and outrage. During the termination meeting they express that they believe they are not being terminated because of their (well-documented) performance issues but in retaliation for having made a “complaint.” Panic ensues.
The company’s human resources (HR) manager has never heard about any complaints lodged by this employee, and there is nothing in the personnel file or HR records reflecting any complaint. Baffled, the HR manager keeps digging and eventually learns that, a few weeks ago, in the midst of a casual chat with his supervisor, this employee mentioned that he works more hours than other employees, but his compensation doesn’t seem to reflect the additional time he puts in.
This raises the age-old question — when does a general “vent session” become a protected complaint that the company must investigate? The answer may surprise some employers. According to the Department of Labor, employees cannot be retaliated against for inquiring about their pay, hours of work, or other rights. (Additionally, the National Labor Relations Act provides protections to covered workers who engage in concerted activity — which includes raising concerns about terms and conditions of employment.) Therefore, in a general sense, complaints of this nature should always be addressed and possibly investigated.
However, it is often hard to know when a comment or vent session rises to the level of a protected complaint. As a rule of thumb, if an employee raises the topic of wages or house of work (as the employee in our scenario did), employers should err on the side of caution and investigate the issue.
At a minimum, supervisors should be instructed to bring comments of this nature to HR or in-house or outside counsel for a determination of whether an investigation is warranted. While in some instances this may feel like overkill, it is a “better safe than sorry” approach that will protect the company in the end.
