Should You Investigate? Part 2

Last time we talked about Sally, who had come to management saying she was being “harassed” and was working in a “hostile work environment.” Management took her to HR. But then what?

Too often, what happens next is one of two things. If Sally is a difficult employee, has been known to complain in the past, or if the person she is complaining about is well liked, the inclination is to dismiss Sally’s complaint and do nothing. The other thing that often happens at this point is that a formal investigation is immediately started – either internally or by bringing in an external investigator. Either of these might be the correct response…BUT NOT YET. Without knowing more about the issue, it is not possible to determine what steps should be taken. Just because an employee uses words like “harassment” or “discrimination” or “hostile work environment,” it does not necessarily mean you will need to conduct a full-blown investigation.

The first thing to do (after taking the steps described last time to protect the employee and assure the integrity of any future investigation), is to perform a high-level review of the facts as Sally presents them. Here are some things you should consider in deciding about next steps:

  • Determine whether Sally’s complaint is general (e.g., Henry is mean and unfair in the way he treats his staff) or specific (e.g., yesterday he gave Sally a frontal hug, stroking her back and making her very uncomfortable.)
  • If what Sally is telling you is new to you, listen carefully in a neutral, non-judgmental manner, and take notes without making any editorial comments.
  • If what Sally is telling you is not new, determine whether prior complaints about the issue she is raising have been looked into. If they were, what happened? If they were not, why not? Use this information as part of your guide for action.
  • Not all complaints require an investigation. If Sally’s complaint is more general in nature, it may require an organizational assessment or an assessment of the skills of the manager, rather than an investigation.
  • If Sally’s claim leads you to believe that your policies (or laws) may have been violated, are these violations of policies/laws against discrimination, harassment, ethics, employee conduct, etc.? If not – Sally may still be unhappy, and her unhappiness will still need to be addressed, but not from a policy violation perspective and not by an investigation.

It is very important to understand the basics of the problem or issue before addressing it. In many of the investigations I have conducted over the years, I’ve not seen that anything illegal has happened. In fact, frequently no company policies or laws have even been violated, and sometimes the employer could have determined that quickly without even calling me. In many of these cases what I have seen is poor communication, employees who are unhappy for a variety of reasons, and supervisors and managers who may have good technical skills but don’t have people skills.

So remember:

  • Don’t ignore employee complaints.
  • Employees don’t have to come to you with their complaints – they can go directly to their attorney or an outside rights agency. If they do that, it will cost you a lot more (time, money, good will and reputation). Create a workplace where employees want to resolve their issues internally by coming to you rather than going outside.
  • If you can’t be neutral in hearing an employee complaint (without assuming there either is or is not a violation of policies or laws), have someone else deal with the situation.
  • Respond appropriately. If it’s likely an allegation of a violation, investigate. If it’s likely a complaint of poor supervision, management, communication, etc., you may need to assess the situation further, but you likely won’t need to investigate.

So, before either dismissing a complaint that is brought to you, or immediately beginning a full-blown investigation, take the time to really assess what you know and determine the best way to approach the situation. You’ll be much more satisfied with the results!

Have you responded to an employee complaint with an assessment rather than an investigation? What happened? We’d love to hear! ~Daphne Schneider

 

Should You Investigate? Part 1

You just got an employee complaint…Oh, what to do, what to do???

I’ve been pondering this question after years of conducting workplace investigations for clients. After about 350 investigations, the results are interesting: in at least 75% of the situations, nothing illegal has happened. So, should there have been an investigation? It depends.

I have found that some clients immediately choose to investigate when an employee uses what I think of as the big trigger words: harassment, discrimination, hostile work environment. Almost everyone in this day and age has heard these words tossed around. They’re in the media all the time. But few of those who use them understand them to have legal definitions based on statutes and case law.

So here’s what sometimes happens: Sally tells someone in management she’s being harassed and is working in a hostile work environment. That person (rightly) report that allegation to either human resources (if it exists in that workplace) or upper management/the CEO. And then I get a call. Sometimes that’s all it takes.

So what should a manager do when someone comes report that they are being harassed, or are working in a hostile work environment? Shouldn’t you just drop everything and call in the investigator? NOT YET. (Yes, I know I may lose some work by saying this.)

What to do instead? Take the following steps, in this order, and then decide whether you need an investigator.

  1. Assure Sally she will be protected from any retaliation in connection with her complaint (and yes, by saying these words to a supervisor or manager, she has already made a complaint). Ask her to tell you if she feels she is being retaliated against in connection with this complaint – and remind her not to retaliate against anyone else. Any retaliation against her (or by her) in this situation is illegal under both Washington state and federal laws.
  1. Have Sally meet with someone who has been trained to deal with such situations. If no such person exists in your company or organization, do bring in an investigator to interview her appropriately. Then get several people trained in these basic interviewing skills. 
  1. If Sally’s complaint is about one or two specific incidents, ask her to write it up, with as much detail as possible. Then have her sign, date and give the written statement to you (you’d be surprised how many such statements are neither signed nor dated.) If you have an actual complaint form for such situations, of course do ask her to complete that as well.
  1. Ask Sally not to discuss her complaint with her colleagues. This is a very important request, for the sake of your ability to deal with the situation professionally. However, you should not make this a directive. The National Labor Relations Board has indicated that forbidding employees to discuss workplace concerns may be illegal.

Once you have information from Sally, if that information indicates that she has examples of behavior that could be harassing or create a hostile work environment under the law, you must investigate or hire an investigator to do so. Failing to do that could cause an additional complaint against the employer.

And, document, document, document. Note when Sally first came to you, what she said, and what you and others did. Keep that documentation indefinitely.

In my next post, I’ll be providing some additional information about questions to ask (or not ask) in that initial interview, and what else to do (or not do!)

Have you had employees come to you with allegations of discrimination, harassment or hostile work environment? What did you do that worked, or didn’t? Let us know! ~Daphne Schneider

Workplace Favoritism: Perception vs. Reality

favoritism

Favoritism in the workplace is bad. There’s little debate about that. If a manager favors his or her friends, college buddies, fellow poker players or baseball fans, sorority sisters, or whatever, this can have a highly negative impact on the morale and productivity of those who are not favored. So if you’re a manager who is doing this, stop it!

Favoritism can also be illegal. If a manager favors those of a particular protected class (race, gender, sexual orientation, religion, etc.), it can be discrimination against those who are disfavored. Similarly, if a manager retaliates against employees who have complained about, e.g., workplace safety or harassment, by favoring those who haven’t complained, that can be illegal retaliation. If a manager favors his or her romantic partner, that’s more complicated – it’s not good for morale or productivity, but may or may not be illegal depending on the circumstances.

Thus far we’ve talked about real favoritism. What’s more complex but not uncommon is employees who wrongly perceive favoritism when it’s really just management tending to turn to good workers rather than those who are not. An example: Employee “Gallant” is reliable, hard-working, and committed. Employee “Goofus” is none of these. [This is a test of your age, by the way. My older readers will get the references in these names; others may not.] Manager selects Gallant for special projects more than he or she selects Goofus – and selection for special projects is a coveted perk.

Many Goofuses will perceive this as unfair favoritism, as opposed to seeing that the manager is selecting the employee who will get the work done. This can create problems, particularly when Goofus decides that the alleged favoritism is not only unfair but is illegal discrimination or retaliation – often not that hard a case to make even if it’s not true.

So what can an employer do to try to prevent such situations? Often the problem is that the manager does not realize how his or her selection process appears to others. It just seems obvious: I’ll select the best person for the job. But one can’t necessarily expect Goofus to have the self-insight to understand what’s going on. It is essential, therefore, for managers to be sensitive to perceived favoritism and to explain to Goofus (and the workgroup in general) how the selection process works and how employees can qualify.

Done in a supportive, not punitive, manner (and without holding up Gallant as an example of what to strive for) this can serve as an incentive for Goofus and the workgroup as a whole to improve their performance.

Will this always work? Of course not: some employees are unable or unwilling to hold themselves accountable and will always blame others. But if management’s efforts to create a level playing field are documented, at least it will have some defense against potential lawsuits alleging discrimination or harassment.

Any other thoughts out there? ~Amy Stephson

The “Perception Is Reality” Trap

We all know the phrase, “perception is reality.” And in a psychological sense it is true: we all experience the world through our own lens and that is our reality.

In the world of human resources management, however, I find that this phrase can muddy up the analysis necessary to effectively lead and manage employees. This occurs particularly in workplace investigation and conflict resolution contexts where it is all too easy to be sucked into an unreasonable employee’s perceptual wormhole.

Here’s how problems arise. When applying harassment policies, we are taught that it’s the impact of an employee’s actions on another that matter rather than the employee’s intent. This is often true: someone may think they’re “joking” when they make a sexist or racist remark, but regardless of their intent, such remarks can still be harassment based on their impact on the recipient.

This does not mean, however, that any and all perceptions, i.e., impacts, are created equal. Because the law also provides that the recipient’s reaction to an action or remark must be “reasonable,” i.e., based on some objective reality. Some examples:

  • A female employee sees posted in a male employee’s cubicle a birthday card with a scantily clad female on the front. Can she ask management to direct him to take down the card? Sure. Can she argue that the card in and of itself has created a hostile work environment for her? Not so much. However upset she may be about the card, her perceptions do not trump the fact that a reasonable woman would not find her workplace imbued with gender hostility based on a co-worker’s birthday card with a bikini-clad woman on the front. And she needs to be told that. [And yes, this was a real case.]
  • An employee contends that he feels “unsafe” after his supervisor critiques his job performance in a closed door meeting. Or he contends that the supervisor was “abusive” for telling him he could be terminated if his repeated tardiness continued. The employer will certainly want to check into these allegations to make sure the supervisor did not behave inappropriately. But once the employer is comfortable that the supervisor was just doing his or her job, the complaining employee must be told that in no uncertain terms.

It’s hard to tell a complaining employee “in no uncertain terms” that his or her perceptions are incorrect. Such messages must be delivered kindly and without any suggestion that the employee is lying or crazily hypersensitive.

In appropriate cases, moreover, management may want to take some steps to at least partially acknowledge the complaint (“We have told him to take the birthday card down” “Would you rather meet with your supervisor in a conference room next time?”) But it is critical at the same time not to enable or encourage employees to maintain their unreasonable perceptions.

Why not just give in? After all, that “unreasonable” employee may decide to bring a lawsuit against an employer for not taking the actions he or she demanded. So yes, it is important for an employer to take complaints seriously even in cases involving “perceptually challenged” employees.

At the same time, such employees often have a highly negative impact on both co-workers and managers, to the point that these others may leave. After the due diligence is completed, therefore, it is equally important to insist on a level of sanity and reason in the workplace.

Any additional thoughts on this issue? ~Amy Stephson

Is there life after an investigation? Part 2

Last month I discussed how to get back to normal (or at least establish a new normal that works) after a workplace investigation. I suggested that the first things to do are

  • Conclude the investigation as quickly as possible,
  • Split up the complainant and respondent, if at all possible, and
  • Acknowledge any fault on the part of the employer.

There are a number of other things you can do that will increase the chances of a healthy tomorrow.

Set a goal going forward, and be as specific as you can. For example, assist the workgroup that went through the investigation in focusing on what, specifically, they need to accomplish together in the next quarter. Get their minds off of what happened, and on to reaching the next goal. You can’t just tell them to forget what happened. They won’t. But you can, and should, help them refocus.

Show them you care. Demonstrate caring – don’t just talk about it. Listen. Empathize. Respect people’s feelings. Do things that demonstrate that the staff members are important to you. And show that you care both about the people who are still employed with you, and those who left (whether they chose to leave or were dismissed). Never make negative comments publicly.

Address the fears. After an investigation, people will be afraid: afraid it could happen to them. Afraid they wouldn’t be believed if it did. Afraid they could be wrongly accused. Afraid nothing will change. Afraid things will change. Address the fears. To the extent possible, give information about what happened, and how the issues that were brought out in the investigation are being addressed. Acknowledge the fears, and make it OK to talk about them. This is hard – acknowledge that it’s hard, and that working together, with a common goal and management that cares, you can make it through this crisis and come out better in the end.

Communicate. Communicate. Communicate. You’ll likely have to have the same conversation several times. Don’t get impatient. Each person works through a workplace crisis (and yes, an investigation can be a crisis) at his or her own pace. Remember that in the absence of information from you, people will make up their own information and see it as truth. They’ll develop reasons and explanations – which may or may not have anything to do with fact. So, provide information, lots of it – communicate.  And keep communicating. Not only will this address the fear and anxiety, over time it will build trust.

Check out Jay Shepherd’s Result Triangle in which he addresses these three steps for helping people move in a particular direction.

Finally, keep yourself from going crazy. Be sure you have trusted colleagues with whom you can work this through. You need someone in whom to confide, someone to talk to. If you find yourself going crazy, take a deep breath. Take a time-out. Don’t react – you risk long-term negative consequences to your workplace if you let your emotions take over. If you find that starting to happen, take a break.

And remember: this too shall pass.

Do you have other tips or insights for recovering from investigations? Please share them! ~ Daphne Schneider

Is There Life After an Investigation? (Part 1)

 

I’ve now conducted over 350 workplace investigations, and there are a few things I know:

  • Whatever the problem was before I got there, it gets worse the moment I step through the door.
  • I get to leave when the investigation is over. For the most part, the employees don’t unless there’s a transfer or termination – in which case that one employee leaves, but the others remain.
  • When I investigate (i.e., ask lots of questions of lots of folks), I stir things up.
  • Even though I ask employees not to discuss the situation, many likely do so, after the investigation is over – if not before.
  • Even if employees don’t discuss the situation, it weighs heavily on many of them. Some even develop PTSD.

So, when the investigation ends, I leave.  Then what happens in that workplace?

Usually, almost nothing intentional.  Life goes on, and employees and management try to ‘get back to normal.’  But, as they say, there’s a new normal, and no one knows quite what to do with it.  Management most often says nothing, which generates lots of chatter among employees.  Rumors run rampant.  What happened?  Did Suzie get disciplined?  Is Henrietta pouting because, as the complainant, she didn’t get what she wanted?  How should I interact with Suzie or Henrietta?  And I heard that Carl and Claude were witnesses.  I’ll ask them what happened…and on and on.

The workplaces that are most successful in moving forward after an investigation take steps to make things better. Will it ever be like it was?  No (and that may be a good thing!)  You can’t turn back that clock.  People won’t forget that Carl said bad things about them or Suzie trashed them or Henrietta only cared about herself or…Some people will be happier with the outcome (and gloat about it, obnoxiously), and others will be unhappy and feel the results were unjust and unfair (providing additional reasons to trash-talk about management and the employer).  Still others will continue to be eternally curious (filling in the blanks where they don’t actually have information, and usually getting it wrong.)

What do to?  In a recent HR Examiner article by Heather Bussing, she suggests that “No matter what the complaint or incident, you will never hear the whole story or understand what’s really going on because it is never about what people say it’s about.  What it is always about is power, ego, resources, and if you’re lucky, neuroses.”  Remember that.  And yes, it may also be about other things…but it’s always about those.  So, what to do to improve things after the investigation?

Conclude the investigation as quickly as possible. Know that the longer it drags on, the more space for uneasiness, rumor, negativity, rumor, anger, rumor…so, move as quickly as you can.

After the investigation, if at all possible, split up the complainant and respondent. The likelihood that they will have a successful working relationship after an investigation is very, very small. Keeping them together will hurt them, their coworkers, and their (and others’) productivity. It will hurt the whole organization.

If there’s no way to split them up, make a long-term commitment to coaching them to teach them skills for working together.  Think about adjacent peoples  that regularly fight (like the Israelis and the Palestinians, the Hatfields and McCoys…). If they continue under the same circumstances that created the problem, the problem will continue.  Your employees are like that.  If you expect them to improve their working relationship, you need to put a lot of effort into helping them do that, and you need to teach them how. You also need to regularly monitor the situation to ensure that it’s not sliding back to where it was, that no retaliation is taking place, and the complainant and respondent are doing what was expected of them.

And remember: if you move one of them, assuming that the complainant wants to stay put, moving the respondent (often the higher-level employee) may need to be an involuntary move.  It will be hard, but make it anyway, because leaving the two together is likely the worst thing you can do for the organization.  And NEVER involuntarily move the complainant. That’s asking for a retaliation complaint or, worse yet, a retaliation lawsuit – then you’ll be spending your time (and money) on lawyers, and all that goes with them.  Decide to spend it wisely instead.

Once the situation is settled, examine and publicly (to your employees) acknowledge any fault on the part of the employer. That’s after the legal department and HR have closed the case. A good 75% of my investigations result in a finding of nothing illegal having happened. However, there’s poor management, poor communication, unworkable systems and structures. After the investigation, carefully look at all of these, and discuss them with your employees (who likely see them more clearly than you do.) Then fix them so you don’t have the same problem again.

I’ll have more tips for what to do after an investigation in my next blog post.  Do you have some ideas?  Please share them!  ~Daphne Schneider

 

Power in the Workplace

I recently read a fascinating blog post by Seattle area consultant and coach Neil Baker, MD, entitled “Hard-wired for troubles with power.” According to the post, research shows that all human beings are “hard-wired” to be “acutely sensitive” to those with power. In the employment setting, this means people with positional power, i.e., those with the ability to hire, fire, manage resources, and assess performance.

I have long discussed the impact of power in my harassment training and management coaching. It is frequently a very eye-opening concept. As described by Baker, however, the consequences for management that flow from employees’ acute sensitivity to power goes far deeper than we may realize.  He writes:

If you have positional power, “the sense-making of people who work for you will be determined less by the facts and more by their internal story. If you do anything that tells them it is not OK to be real around you, your authority will amplify the impact of your action. The slightest voice inflection, the most innocent remark, can land hard on those you have authority over, causing them to make up stories that support increased caution and distort further interaction.”

“Every action and utterance can be scrutinized for meaning”–those with power are suspect until proven trustworthy. On top of this, research suggests that, regardless of underlying personality or values, just being in a position of power will cause a person to listen less, talk more, and have difficulty getting into another person’s shoes to understand and empathize.

On the other side of things, because of this magnifying effect of power, those with positional power can have a large, positive impact on the psychological safety of a work environment.” [footnotes omitted]

Baker goes on to give a wide range of suggestions on how those with positional power can reduce its negative effects, e.g., maintain two way feedback and be careful with language. They are well worth reading.

Reading this post, I had some additional thoughts. This power dynamic creates a difficult situation: most managers and supervisors don’t really have as much power as their subordinates think and actually are just fellow human beings, yet the subordinates are basically hard-wired to get upset and angry with them. To some extent, this just comes with the territory and management must acknowledge and accept this reality.

However, it is important for employers to not allow employees to demonize or dehumanize their managers and supervisors because of some real or perceived wrongdoing on the latter’s part. Anyone who does employment investigations or litigation has seen this demonization. Employers who allow it are undermining their management team and demoralizing the workplace.

So what should employers do when faced with this situation? Employees who name call or badmouth managers and supervisors should be told to express their concerns in appropriate and respectful ways. Those who make unreasonable demands  (e.g., put that abuser on leave immediately or that harasser needs to be fired now), should be told that this is not how the employer treats any of its employees as a matter of basic fairness and due process.

Might the demonizer then go after the person who did not give in? Possibly. But in my experience, almost everyone hears and understands concepts of respect and fairness … so long as the message itself is communicated in a fair and respectful manner….

What are your thoughts about positional power in the workplace? ~Amy Stephson