Insights from William Phillips, founder of Phillips & Associates, PLLC.
Many employees treat the HR complaint as the finish line. They report what happened, expect the company to handle it, and assume the hard part is behind them. In our experience representing employees, filing the complaint is where the real work starts.
HR works for the company. Its job is to protect the organization's interests, and once a serious complaint lands, one of the company's early moves is often to bring in its own legal team. None of that makes reporting a mistake. It puts the job of protecting you squarely on you, with the same care the company is applying to itself. The EEOC has found that only a small fraction of people who experience workplace harassment, by some studies as few as 6% to 13%, ever file a formal complaint. If you have taken that step, what you do next protects the ground you just gained.
Our founder, William Phillips, laid this out recently for Forbes Business Council in an article titled "What Employees Should Do After Reporting Workplace Harassment." As he put it:
"Things don't end once you complain to HR. That's actually the beginning."
The steps below are the ones we walk clients through once a complaint is on the record.
Put the Complaint in Writing, and Name What Actually Happened
Even if you first raised the issue in a conversation, get it in writing. Send a follow-up email confirming what you reported, who you spoke with, and what HR said it would do. Accounts diverge over time, and a written record made close to the event is hard for anyone to walk back later.
The words you choose matter just as much. If what happened was sexual harassment, call it that. If you believe you were treated differently because of your race, sex, age, disability, or another protected characteristic, identify it as discrimination and describe exactly what occurred. General workplace bullying, on its own, usually is not against the law. Mistreatment crosses into illegal territory when it is tied to a protected characteristic. Telling HR that a coworker "bothered" or "upset" you, without more, may not put the company on notice of anything it is legally required to act on. Be specific about the conduct and about why you believe it happened.
Preserve the Evidence You Have Without Crossing a Line
Start building a file while everything is fresh, and gather what you already have legitimate access to:
- Emails, text messages, and screenshots tied to what happened
- Calendar entries that pin down dates and meetings
- Performance reviews, especially any from before you complained
- The names of anyone who saw or heard the conduct
- The handbook policies and complaint procedures that apply
- Any relevant photos
A clear chronology of what happened, and when, is one of the most useful things you can hand a lawyer later.
There is a line not to cross. Preserving evidence does not mean downloading everything you can reach. Taking privileged legal documents, trade secrets, confidential customer files, or other proprietary information can create a serious problem of your own, separate from your underlying complaint. Keep to your own records and communications. We tell clients to assume they could lose access to their accounts the next day, so gather the copies you are entitled to while you still can.
Recording conversations calls for the same caution. New York is a one-party-consent state, which generally means you can lawfully record a conversation you are part of. Many other states require everyone on the call to consent, and recording a conversation you are not part of is illegal even here. If a call or meeting involves people in other states, get advice before you hit record.
Can My Employer Retaliate for Reporting?
Retaliation is one of the most common problems we see after a complaint, and it is its own violation of the law, separate from the conduct you reported. You can have a valid retaliation claim even if the original complaint is never substantiated, as long as you raised your concern in good faith. The EEOC reports that retaliation has been the most frequently alleged basis for private-sector discrimination charges for well over a decade, making up more than half of them in recent years.
It rarely looks like a dramatic firing. More often it is quiet:
- A schedule or shift change that costs you hours or money
- Responsibilities that shrink, or removal from a major project
- A transfer to a worse role or a location with a longer commute
- A sudden run of write-ups or a performance improvement plan after a clean record
Picture a server who reports that a manager is making advances and is then moved off the lucrative weekend dinner shifts to weekday mornings. It is worth asking why the person who reported lost the better shifts while the manager stayed put.
This is also why we tell clients to keep doing their job well. Show up on time, meet your responsibilities, follow the rules. Some employers respond to a complaint by scrutinizing attendance, criticizing work that was acceptable before, and documenting small issues to build a paper trail. Do not hand them the material. If your performance genuinely slips after you complain, real problems get tangled up with the retaliation and it becomes harder to separate the two. Keep your record clean, and pay close attention to whether the way you are treated starts to change.
What to Expect While the Investigation Plays Out
Investigations take time. You might expect an answer the next day and hear nothing for weeks. It is reasonable to follow up and ask where things stand, and to keep those check-ins factual and professional.
What you want to avoid is overcommunicating. Firing off aggressive emails or copying half the company on every message tends to work against you. Say what you need to say, keep a record of it, and stop there. And do not count on the complaint staying secret. To investigate, the company generally has to tell the accused that a complaint exists, and that person is usually interviewed. Confidentiality holds only to the extent an honest investigation allows, which is one more reason to watch closely for changes in how you are treated once word gets around.
Think Carefully Before You Sign a Severance Agreement
If the situation moves toward an exit, your employer may offer you a severance package. Do not sign it on the spot. A severance agreement almost always asks you to give up legal rights, sometimes including the right to pursue a claim over the very conduct you reported, in exchange for the payment.
New York also limits what an employer can require in agreements that touch harassment or discrimination claims, including restrictions on forced confidentiality and set time for you to consider the terms. Before you sign anything, have someone who understands employment law explain what you would be giving up and what it is worth.
Understand Your Rights Before You Decide What to Do
We describe the path forward as rights, guidance, and action, in that order. First, understand what your rights actually are. Then get guidance on your options. Only then decide what action makes sense, whether that is raising the issue with your employer again, negotiating a resolution, or negotiating your departure on better terms.
Talking to an employment lawyer does not commit you to filing a lawsuit. It is a way to understand where you stand before you make any decision. The stress that comes with harassment and an uncertain aftermath is real, too, and worth taking as seriously as the legal side.
You can read William Phillips' full article in the Forbes Business Council.
If you believe you were harassed, discriminated against, or pushed out after reporting, Phillips & Associates, PLLC represents employees only. We have recovered more than $360 million for over 9,500 workers, and your consultation is free and confidential. Call (866) 229-9441 or contact us to talk through what happened and what your options are.