Does An Employee Complaint Ever Become Too ‘Old” To Address?

Both employees and employers struggle with whether a complaint regarding workplace conduct is ever too “old” to raise and/or investigate.  In New Hampshire, the general statute of limitations for civil actions is 3 years from the date of the conduct giving rise to the claim.  For employment matters under the jurisdiction of the New Hampshire Human Rights Commission and/or the EEOC, the limitations period for filing a Charge of Discrimination can be as short as 180 days from the date of the last wrongful act.  Claims under the Family and Medical Leave Act generally have a 2-year statute of limitations.

While it may be tempting as an employer to simply state that a complaint by an employee is outside of the limitations period, an employer is not acting prudently in doing so for a number of reasons.

Employers should be focused on not only limiting liability, but also the culture and morale in the workplace.  If a complaint is made regarding the conduct of an employee that has since left employment, it should still be investigated to make sure that the conduct complained of is not more widespread within the workplace.  The workplace environment that allowed for any alleged bad conduct may still be in place and need to be addressed.  For example, if an employee complains of sexual comments made by a former employee at the company’s weekly softball games, it may be worth investigating what happens currently at softball games and is there still conduct taking place that could give rise to a hostile work environment.  From the employer’s perspective, fostering a good work environment that is productive and retains good people is always worth addressing, even if the complaint is “old.”

In addition, on the legal side, old complaints regarding illegal conduct can be actionable under the “continuing violation” doctrine if some of the actions occurred within the limitations period.  This doctrine is an exception to the statute of limitations.  For example, an employee who suffers from recurring acts of harassment can bring an action on one or all acts if any one of them is in the limitations period.   The acts must meet the legal standard of being similar in kind, occurring frequently, and not creating a permanent course of conduct.

From an employee’s perspective, making a complaint regarding conduct that happened well in the past may serve to raise awareness within the workplace and set the tone for what conduct is allowed and not allowed.

Thus, while it may be easy for an employee to simply ignore any conduct that happened in the past or for an employer to state that a complaint is “too old” to investigate, to do so does little to address workplace issues for all workers and could lead to increased risk of future legal action for an employer.

About the Author: Jennifer Eber

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