Matthies Law Firm, P.C.  

Serving as Employment Law Advisors for over 25 years

Section 10: Problem Resolution Procedure

• Introduction
• No-Retaliation Policy
• Common Reasons for Using the PRP
• Normal Problem Resolution Procedure
• Procedure for Highly-Serious Incidents
• Procedure for Misconduct by Outsiders
  

Introduction

Whenever an employee is upset with something which has occurred in the workplace, and the employee has been unable to resolve the problem through routine workplace discussions (or the employee reasonably believes that such discussions would be futile or counter-productive), the employee is invited to ask to discuss these issues further by use of the Problem Resolution Procedures (PRPs) included in this section.

Most workplace problems arise through disagreement with some decision or action by the supervisor (and/or the company), or through disagreements with a coworker. These problems usually will be resolved using the normal PRP. However, in the case of serious legal violations by supervisors or coworkers which require immediate management attention, a separate Serious Incidents procedure has been adopted. Occassionally, problems may arise due to improper actions by customers, vendors or supplier, which should be handled using the Outsiders procedure.

Remember that our supervisors are not mind-readers, and some of them may be so busy at times that they may not notice something which you think should be obvious to them (or, even if they saw something, they may not realize how serious it was to you). It is your obligation to tell your supervisor if something has happened which upsets you.  If you don't like the answer, it is your obligation to appeal (as supervisors are human, so they can get busy and sometimes may not "hear" a problem unless you make an issue of it).

Bottom-line: We are serious in our commitment to the principles of common courtesy, open communication and application of the Golden Rule. If we make mistakes (as everyone does), we want to fix them - but we cannot do this without your help.

No-Retaliation Policy

No employee will be penalized for use of the problem resolution procedure, as long as the employee presents such request for management review courteously and in good faith, and abides by the decisions and instructions of the immediate supervisor while the matter is under review (unless such instructions fall within the definition of serious supervisory misconduct described in the last part of this section).

We are not so naive as to believe that every problem can be resolved to everyone's total satisfaction. However, we believe that most problems arise through miscommunication or lack of understanding of the reasons of the Company (or of a coworker) for a particular decision - so, if the problem can be resolved by talking through the concerns of the employee, everyone will benefit by the elimination of most workplace conflicts.

Common Reasons for Using the PRP

Most problems with coworkers seem to arise when two stubborn individuals refuse to be flexible and each tries to insist on having things his/her own way (although such problems also can arise when one person is so routinely inflexible that the coworker finally gets sick of giving in and refuses to budge, or where one employee fails to speak up and leads an otherwise flexible person to believe that agreement exists when it does not). Typically, these problems do not arise out of bad intent, but because both employees didn't talk things through sufficiently to see the other point of view. Once management provides the catalyst to help them to talk to one another, a workable solution normally can be reached.

Most problems which employees have with the Company itself (or with a supervisor) seem to stem from lack of understanding of the point of view of the supervisor and/or the Company, or lack of good communication between the supervisor and the employee. Open communication with the supervisor (or with higher levels of management) will permit these problems to be resolved in most cases. For example, such discussions may allow the supervisor to discover that the employee may not have properly understood what job duties are most important in the work unit (so the employee has been focused on the wrong things); or the employee may discover that he really needs to pursue more training to meet his goals; or the employee may discover that certain conduct really has created more headaches than he realized (e.g., chronic tardiness is delaying the work of many other employees); or the employee may discover that there are legitimate reasons (such as cost or administrative problems) which caused the Company to adopt a particular policy which the employee dislikes.

Similarly, if the employee is upset over the way in which a certain policy has been administered (for instance, he does not like the way in which vacation was scheduled), presentation of a complaint often allows the employee to see the larger picture behind why the rule was adopted. Such complaints also alert the Company to problems or situations which had not been foreseen, and can lead to changes or exceptions to the policy. Finally, even if the discussions reveal that there is simply an honest difference of opinion over such matters as whether certain discipline is justified (e.g., the employee cannot understand why a big issue is being made over attendance when he thinks that he is doing great overall), these discussions may be helpful in assisting the employee to decide whether compliance with certain rules is sufficiently burdensome that he should explore other work assignments within or outside of the Company.

As a result, we encourage all employees to use the following problem resolution procedure if they are unhappy about any workplace issue, so that the Company is alerted to the problem early (in time to see if the problem can be resolved before little problems become big ones). Any time limits noted are advisory in nature, and may be waived where the Company finds it to be appropriate to do so.

Normal Problem Resolution Procedure

Step 1: As a general rule, problems are more easily resolved if they are raised quickly, so the employee should endeavor to discuss a problem or concern with his/her immediate supervisor within 3 working days after the incident occurred (or within 3 working days of the date when the employee became aware of the problem). Unless the problem involves a routine issue which the employee believes likely to be resolved by a brief discussion with the immediate supervisor, the employee should put the complaint in writing (and include enough facts so that reviewing managers will be able to understand what the problem is about). The immediate supervisor will endeavor to give the employee a response within three working days after the problem has been presented (and normally will respond in writing if the complaint has been presented in writing, although a meeting typically will be held to discuss the response in more detail). Please note: If the problem involves some act by the supervisor which the employee believes to have violated his/her rights under EEO laws, the employee may bypass a meeting with the supervisor and proceed to Step 2, if the employee so desires. However, because an appeal always can be filed later and because most supervisors will appreciate the courtesy of being given the opportunity to explain their actions, employees are encouraged to think about talking first with their supervisor about their concerns (unless the conduct was so highly offensive and unrelated to legitimate work matters that this appears fruitless or the conduct is sufficiently widespread that the management needs to be alerted to the situation, either through this procedure or through the procedure for reporting serious supervisory misconduct).

Step 2: If the employee is not satisfied with the response, the employee may appeal to the next level of supervision within five working days. This appeal should include a written response to any new matters or issues raised by the response of the supervisor. The Manager will review this appeal and conduct any investigation which appears to be warranted. Normally, this investigation will be completed within five to ten working days (depending on the nature of the problem). If the problem appears to be a dispute over policy issues beyond the realm of authority of the Manager, the matter may be referred directly to Personnel for further handling. Once the Manager has completed his review, a brief written response will be provided to the employee.

Step 3: If the employee remains unhappy with the response of the Manager, the employee may appeal the matter to the Personnel Manager for final resolution (unless the matter already has been referred to Personnel because it involves matters beyond the authority of the Manager). The Personnel Manager will review the file materials, conduct any additional investigation which may appear to be warranted, and render a final decision. Typically, this decision will be issued within five to ten working days, unless the matter is unusually complex.

Step 4: Problems, disputes, or claims not resolved through the preceding problem resolution steps may be subject to mediation by a neutral mediator, if both the Company and the employee agree mediation is in their respective interest. Mediation is by mutual consent only.

Procedure for Highly-Serious Incidents

Procedure for Highly Unsafe or Illegal Conduct:

The Company expects all of its employees, and particularly its supervisors, to be honest law-abiding citizens. We have instructed our supervisors that they are expected to do their best to observe and follow the law, in order to protect everyone in the Company, as well as members of the public. While we hope that all supervisors follow these instructions, we want to make it clear that no supervisor has the authority to engage in conduct, or to instruct any employee to engage in conduct, which would constitute a plain violation of the legal rights of the employee or coworkers, or a plain violation of the legal rights of the Company or the public at large.

If a supervisor goes beyond his authority and intentionally or recklessly engages in conduct (directly or through orders to employees) which would place the Company or its employees at serious legal risk or which is likely to cause serious harm to third parties, we want for upper management to be alerted much more quickly than occurs when the standard problem resolution procedures are followed. As a result, we have created this special avenue to allow prompt reporting of such situations, along with some guidelines for employees to follow in the event that such a situation arises.

The types of situations in which this expedited review procedure should be used are situations which will result (or have resulted) in serious criminal wrongdoing, or a serious violation of the rights of the employee or coworkers under applicable employment laws (including EEO laws), or would create risk of serious health/safety hazards, where the employee has reasonable grounds to believe that the supervisor will not fix the problem and the problem is so important or so urgent that the problem cannot be satisfactorily addressed through the normal problem resolution procedures.

If the employee concludes that the problem fits into this category, the next step is to decide whether there is time to make a written report to top management or whether the problem is so urgent that top management must be contacted without delay. Usually, if there is time to do so, the employee should try to take the time to write a written report which describes the situation in detail; lists any witnesses; and identifies any facts or supporting records which would be helpful in the investigation. This report should be hand-delivered to the top location manager (unless that individual is implicated, in which case the data should be sent directly to Personnel).

On the other hand, a situation could arise where it is absolutely urgent that top management become involved ASAP in order to prevent immediate serious harm to the employee, members of the public, and/or to the Company. An example would include a situation where a supervisor has made threats to force the employee or coworkers to do something immediately which is very unsafe or illegal (for example, telling employees that he will fire them one after another until he finds someone who drive a truck without brakes down a crowded freeway). Another example would include immediate demands by a supervisor that the employee do something which is likely to be traumatic and which would be a very serious violation of EEO laws (such as giving an immediate order for the employee to engage in sex with the supervisor or a customer, under threat of discharge).

Employees are expected to refuse to follow an order to do anything which involves serious criminal wrongdoing and/or is likely to cause serious harm to them or to others.

If such orders are given, the employee should refuse to obey the order, and ask the supervisor to reconsider (unless this is clearly fruitless). If the supervisor refuses to reconsider, the employee should tell the supervisor that the employee is leaving to make an immediate report of the matter (unless the supervisor is acting so irrationally that the employee fears an assault if this is done). The employee should then leave to make an immediate call to the top location manager or the Personnel Manager from the nearest available safe location.

If it is after-hours and these individuals are unavailable, the employee may contact any available supervisor for assistance. If no supervisor can be located, the employee must then assess whether it is essential to take further action immediately to protect the safety of others, or whether it is sufficient to leave voicemail messages for management and to address the problem the next day.

When a serious emergency exists which requires immediate action by someone in authority, the first thing to do is to take necessary steps to protect yourself (and coworkers, if there is time to warn them); get away from the danger; and then call for necessary help. If no manager is available to handle the matter (or there is no time to find a manager), then the employee may have no other option than to contact the necessary authorities for help. Some examples of situations which likely would require such actions would be where a boiler is ready to burst because the supervisor is insisting on overloading it, or the supervisor has just driven the truck without brakes off the lot, or the supervisor is acting irrationally (perhaps waving a gun in the air or threatening violence).

In situations where employees are working without a supervisor present (so they essentially are supervising each other), these same types of steps should be followed if a coworker engages in conduct which, if committed by a supervisor, would fall into the category of serious supervisory misconduct. Thus, if the coworker cannot be convinced to stop doing something which is likely to cause serious injury to himself or another (or which involves serious criminal wrongdoing), then other employees have an obligation to contact management for help.

Once the matter has been reported to management, it is in the interest of all concerned to avoid the possibility of unpleasant confrontations with the supervisor or coworker who was reported. Thus, depending on the circumstances, the employee or the supervisor (or both) may be asked to remain at home for a few days, or may be reassigned temporarily, so that the investigation can be completed without risk of such incidents. In most situations where an initial verbal report has been made, the employee will be asked to provide a full written statement as soon as possible.

The employee should recognize that reports of serious supervisory misconduct are not taken lightly by the Company. One or more top managers usually will be required to drop other important business matters to look into the report, and the Company often will need to retain outside counsel to assist in the investigation. While the Company definitely wants to be alerted to serious problems promptly (and normally will give the benefit of the doubt to the employee where the report appears to have been made in good faith, even if it was mistaken), the Company reserves the right to deal severely with employees who intentionally or recklessly abuse this process.

It is important for employees to use good judgement and common sense in deciding whether the matter is important enough to warrant immediate top-priority attention by high-level management (e.g., use of this procedure to report some trivial error, such as filing reports in duplicate when government regulations require filing in triplicate or to report some minor safety issue such as a burnt-out light bulb, would be a huge waste of top management time - and could cause management to question the motives or intent or common sense of an employee who failed to use normal problem resolution channels to address such matters).

Procedure for Misconduct by Outsiders (Third Party Misconduct)

The Company will not tolerate any harassment of its employees by any outside vendor, customer, visitor or supplier. In the case of name-calling or similar forms of verbal harassment, the employee should try to remain calm and use common sense in dealing with the abusive individual (especially if the person is irate), while either sending a coworker to find a supervisor or excusing themselves to find a supervisor to deal with the individual.

Maintaining an attitude of calm courtesy is always difficult while being verbally abused, but it helps to protect the employee from getting into a shouting match or ugly confrontation (so this is much safer for the employee, and also helps to avoid later arguments over who started the conflict). Keeping a calm head also makes it easier for the employee to concentrate on keeping notes about exactly what happened (which will greatly assist the Company in later discussions about the incident with the harasser and/or his employer).

Of course, if the employee feels physically threatened (including in danger of a sexual assault), the employee should find any excuse to get away from the individual, go to a safe place, and then immediately contact a supervisor and/or Security for further assistance.

Sometimes, situations may arise where no offense may have been intended by the outside individual (such as joke-telling by a salesman which may offend some highly-religious individuals, but does not offend most other employees). It is best to bring these situations to the supervisor, and obtain guidance on the best ways to handle the matter to address your concerns, while also avoiding a possible unpleasant confrontation with an important customer or vendor who likely had no evil intent. For example, there may be occasions when the contacts with this individual are so infrequent, and the nature of the conduct is so mild, that the simplest solution is to permit the offended individual to avoid dealings with this outside person. If the employee is unhappy with the solution devised by the supervisor, the problem resolution procedure is available to deal with such concerns, and to address any alternative solutions which the employee wishes to propose.

The problem resolution procedure also should be used to report activities by customers, vendors or suppliers which appear to violate our Conflict of Interest policies. Timely reporting of such actions is essential to protect the Company's interests, as well as those of the employee. Likewise, employees have an obligation to report coworkers who are in violation of those policies.

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