Contract language review - the complaint procedure
Complaint-procedure language is often neglected in public education collective bargaining. Too often, board members and school administrators don’t realize they’ve paid it too little attention until it is too late.
Good contract language must achieve a balance between the district’s interest in effectively responding to valid complaints and the staff’s interest in protection from unfounded or maliciously filed complaints. Poorly constructed complaint-procedure language can lack procedural safeguards required for fairness or, conversely, be so burdensome that it infringes on the district’s ability to fairly and effectively deal with poor employee performance or improper conduct.
Districts should consider the following when reviewing their complaint-procedure language:
- Triggering mechanisms
- Means of authentication
Complaint procedure triggers
A good triggering mechanism identifies a set of circumstances under which the complaint procedure becomes operative and may be any of the following:
- All complaints
- Written complaints
- Complaints that will be placed in the employee’s personnel file
- Complaints the administrator intends to investigate
The complaint procedure should not require the district to formally process every bit of rumor or gossip that finds its way into the front office. On the other hand, districts should avoid so limiting trigger language that valid complaints don’t make their way into the official procedure.
Districts should consider including language that exempts certain types of complaints from the contractual procedure. Complaints that, if true, are violations of criminal laws or the district’s sexual harassment policy should be separate from other workplace complaints.
Your process should contain procedural safeguards to ensure the authenticity and veracity of incoming complaints. Some complaint procedures prohibit investigations or adverse actions unless the complaint has been written down and signed by the complaining party. Other procedures allow the receiving administrator to vouch for the credibility of an anonymous complaint by affixing his or her own signature. Either way, most contracts place a low threshold of reliability on the front end of the complaint procedure with the understanding that the pending investigation or conferences between the complainant and staff member will determine the credibility of the complaint.
Districts should avoid contract language that would prohibit them from taking disciplinary action on a complaint simply because a time line they set proved to be unrealistic. Complaints can take a long time and a lot of effort to process and investigate. Understandably, unions will seek language that prevents the district from unduly delaying the process. Does your contract language provide sufficient time lines within which the district may fully and adequately investigate complaints?
Complaints that have not been processed through your established procedure usually cannot be relied on as a basis for staff discipline; therefore, it’s crucial that administrators fully understand and follow the complaint procedure when allegations of poor performance or improper conduct are brought to their attention.