Filing A Complaint Is My Job Protected?

Question:

After you file a BOLI complaint, is the job protected, or can they fire you while the investigation is on going? Thanks much, and do most people continue to work in their position while the investigation continues or do they take a leave?

Signed,

Will I Be Fired?


Answer:

Dear Will I Be Fired?:

Your query is a legal question and such questions can best be answered by your state’s Department of Labor. We do not provide legal advice. I expect that after an employee files a complaint with the Bureau of Labor & Industries, such as one of discrimination based on sex, race, color, religion, age, national origin, or disability, she/he can continue to work while the complaint is investigated. Firing is not prohibited but it would need to be for good cause. If not for a good cause, such as stealing, fighting, or defying safety rules, firing could be interpreted as retaliation.

Employers are held responsible to make a reasonable effort to correct acts that cause a complaint even before an investigation is complete; for example, in case of a complaint of sexual haras sment, the parties are to be separated. Where this is not possible, taking or being granted leave or suspending the accused might be the appropriate remedy until an investigation is completed. Or in such cases of filing a complaint of disciplinary acts against an employee engaged in organizing a union, I’m sure that a labor attorney would advise that the employee, who has filed a complaint, continue to work during an investigation. Your question does not say if you have already or plan to file a complaint or if it pertains to someone else. Perhaps if you send us more details concerning the complaint, we can provide less general advice. We, and those who visit our site, learn from the details that prompt questions, so do keep us posted. My general advice is: prepare by documenting details of incidents and acts have provoked a complaint. Co-operate with an investigation and perform to the best one’s ability during it. Guard against interpreting every slight as against you. Be of good cheer and practice a mindset that you would have if you owned the company. Working together with hands, head, and heart takes and makes big WEGOS.

Follow Up: 16 years with same employer, good solid record, until now. I came across a liability in a patient care situation and addressed the group of individuals. I was told to shut up because they were fierce. I laughed it off and reported it to my administration in the morning. A week later the same fierce group complained, said they were scared of me, and charged me with hostile work environment. I had to go through a fitness for duty exam and turn over my medical records in order to keep my job. The accusations were unfounded and I was put on one year’s probation or take a severance package of 6 months. I went back to work for 9 actual days and was written up for walking on a wet floor, looking at a tech aide and making him nervous, and I am no longer allowed to have conversation with my doctors in the hospital unless it is patient related and not away from other staff members. Any other conversations will be taken off campus completely according to the write up, feels like discrimination to me.

I went out on sick leave (stress leave with a FMLA) and am due to return next week. I contacted BOLI and filed a complaint for retaliation from the fierce team members.

I go back to work next week, but I’m not feeling well about it. I have a medical condition that is covered by the ADA. That gets worse with stress, and one of the fierce team members is running around campaigning to keep me out of work while I’m on a FMLA

I complained to the HR director, but she has not responded to my complaint.

Awaiting You are anxious and stressed. I imagine that you have played and replayed the incident that led to the complaint against you–what you said, its tone, and demeanor. Do you come across as someone about to explode? Are you seen as a battleaxe or sourpuss? You say that the group you spoke to about patient liability responded fiercely and complained. And you say that that complaint prompted assigning you to a fitness for duty investigation and resulting probation. Now you walking on thin ice; or on wet floors. This misdemeanor and an aide saying you looked wrong at him have added to your discipline. From here, it is impossible to know what has caused you to be the target of on-going hostility.

Undoubtedly all of this aggravates your health problems. Have you inquired what is available within your organization to aid employees such as you with an ADA medical condition and also with the hostility you have been accused of and are experiencing? Your HR director should advise you if there is an Employee Assistance Program in place or counseling for distressed employees. Don’t wait too long to get help. Meet with your HR to request this kind of help. Use both written and face-to-face channels of communication. Obviously you don’t want to be seen as a pest, but respectful and persistent contact often is needed to deal with on-going hostility and the complication of emotional distress.

Also, might you need a labor attorney to help you sort out if there is evidence of retaliation because you voiced a concern about liability to a patient? Complaining about what you saw as wrong-doing and the subsequent targeting you for voicing that concern should not have escalated to a fitness investigation, unless you had a pattern of inappropriate behavior. The several recent restrictions placed on you strike me as unreasonable and purposely calculated to isolate you.

Management seems to have singled you out rather than to knock heads together; to smooth over and to resolve causes of charges against you. If in fact you have 16 years with a solid record, there must be something else going on in the minds of your superiors. Possibly an attorney could help you keep your job and alert management to what seems to be efforts to make you leave.

Incivility is making your life a working hell. To survive in such an unpleasant environment will require a backbone of steel. Ideally, your superiors should assertively bring all those in your work unit together to address the fact that they are not working together as a team. Conflict escalates to verbal abuse, pecking orders, and bullying. Too often managers would prefer to look the other way and blame someone, rather than to confront group conflict. The fact is that work groups, just as groups in sporting competition, do not become teams without coaching and learning how to prevent and resolve conflict. I’ll wager that your work unit rarely if effort schedules skull sessions that review what has been going well and what needs to be changed. What merits applause? What is making one another’s performance difficult? What can make each other’s work easier and more effective? Are you working together as a team to deliver quality care and make patients happy? And overarching question: What are the signs that we are a team? I don’t know if you can survive or if you have the possibility of getting work elsewhere. If you don’t have that possibility, can you hang in there without becoming soured and being so obsessed with this day after day that you take it home with you? Can you assert yourself professionally and cheerfully in spite of what you have encountered in these recent times? Can you perform your job well and take care not to walk on wet floors? Can you maintain and nurture a sense of humor? Can you find something outside of your work that is emotionally satisfying to help you through these difficult times on the job? I don’t know how you will answer these questions, but my heart goes out to you. Work is hard enough without what you have and are going through. Working together with hands, head, and heart takes and makes big WEGOS, and trying to make that happen is all you can do.

William Gorden