Q Can an employee bypass her supervisor and go straight to HR just because she has been written up previously?
A Although the question of whether an employee can bypass a supervisor to lodge a complaint with HR seems simple (there’s no law stating an employee can’t bring a complaint to any member of management), it raises an important issue: Do you want to obstruct an employee from bringing a complaint to someone other than her direct supervisor?
Complaint reporting procedures are one of the most common policies found in an employee handbook, and employers often believe they need to have a singular, well-defined avenue designated for employees to raise their concerns in the workplace. Such policies and practices provide both consistency for the employee and an expectation by the employer in terms of receiving complaints. Complaint reporting flexibility is key, however, both from a practical and legal standpoint.
The first potential legal issue that may result from restricting reporting avenues through a policy is an employee handbook breach of contract claim. Although South Carolina provides employers with a statutory weapon to wholly disclaim employee handbooks and written policies as noncontractual by following certain rules (S.C. Code Ann. § 41-1-110), they continue to ignore or simply be unaware of the option. In doing so, their use of mandatory language in a policy may give rise to a contract.
For example, a court may find a contract exists when the employer provides the employee (and in some instances has the employee sign) a policy stating, “Employees must raise all concerns with their supervisor. Supervisors will consider and rectify any complaints as appropriate.” If the supervisor wholly ignores a legitimate complaint regarding a wage and hour issue, the employer could face not only a Fair Labor Standards Act (FLSA) lawsuit but also a breach of contract for the supervisor’s failure to consider the legitimacy of the complaint.
As an alternative, you should consider an open door policy suggesting complaints normally be raised with direct supervisors but permitting discussions with other members of management. Open door policies provide both direction for an employee to understand the typical reporting channel and flexibility for the employer to ensure employee issues are rectified.
Another reason to allow an employee to bypass her supervisor for other management members relates to compliance with Title VII of the Civil Rights Act of 1964. In the 1998 decisions Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the U.S. Supreme Court made clear employers are subject to vicarious liability for unlawful harassment by supervisors. The Court held an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action. If no tangible employment action results, however, the employer may avoid liability if it can prove it exercised reasonable care to prevent and correct the harassing behavior and the employee unreasonably failed to take advantage of any preventative or corrective opportunities it provided.
One way you can demonstrate reasonable care to prevent and correct harassing behavior is through a proper anti-harassment policy. In the event the supervisor is the harasser, such a policy would be useless if it required an employee to bring any and all complaints to her supervisor. Therefore, allowing employees to report harassment through multiple avenues can be key to avoiding Title VII liability.
Ultimately, there’s no legal reason an employer cannot require complaint reporting through a single avenue. But with all the potential positives through an open door policy with multiple reporting avenues, why would you want to?
[View source.]
