Q. I have someone who is a chronic complainer about safety and environmental issues. I believe he is just a complainer and the issues raised lack merit, so I have tended to ignore him, but I have been warned that is not a good idea.—K.R.
A. I cannot stress how important it is to take complaints seriously. Too often, I see complaints ignored, and the result is that the worker then complains to EPA or OSHA, or, worse, an accident occurs. I have seen managers go to prison because they did not pay attention to a complaint. Here are some considerations:
Complaint/suggestion box. Companies should offer a method for employees to convey complaints, concerns, suggestions and potential violations—without fear of retribution. Some companies have an anonymous tip line or designate someone higher up in management to take complaints or even provide the contact information of the corporate attorney. Reminder: You cannot penalize someone for whistleblowing.
Investigate. The company needs to investigate all complaints/concerns. The type and depth of the investigation depends on the nature of the complaint. For example, if someone is alleging tampering of a wastewater sampling device or manipulation of analytical data, a company should take the allegation very seriously. It is not unusual to call in your attorneys to conduct the investigation to be sure it is thorough and helps the company understand what the law requires. The attorney can hire consultants if needed. Generally speaking, the work product of the consultant is protected under the attorney/work product privilege. This privilege does not attach if the company directly hires the consultant, however.
Scope of investigation. In conducting an investigation, the company needs to define its scope, determine what documents it needs to review, put in place a mechanism to retain the documents (computers are often set to delete documents after a given length of time), interview key personnel, retain separate counsel for certain individuals in serious cases, and review and analyze data/evidence.
Final Report. I recommend that the investigative team sit down prior to any written final report is issued to review the preliminary findings. Depending on the results of the investigation, the company can then determine what actions are required. It may need to determine whether an employee needs to be disciplined and the specific disciplinary action. Also, the company may need to determine whether a violation occurred and whether it is reportable to the government. Some delay in reporting could be acceptable while an investigation is ongoing; however, unreasonable delay in reporting is unacceptable and can result in higher penalties or worse.
For example, if the complaint is discharging untreated wastewater, the company may decide to put on alarms to ensure discharges do not occur when the treatment system is not operating. The company may also want to empower the wastewater treatment operator to stop production if, due to influent from a production line, the company may violate its permit.
If the complaint is tampering with sampling equipment, the company may want to put in place a standard operating procedure that makes clear that sampling equipment is not to be touched, even if someone is conducting unrelated maintenance in the same area. If the person touching the sampling equipment has been previously warned, that person may face disciplinary action.