Category Archives: Workplace Investigations

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

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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

Investigations: They Gotta Be Real

Employers frequently seek to get investigative reports and related documents into evidence when complainants who are dissatisfied with the investigation’s outcome go on to file discrimination or harassment lawsuits.  They do this to show that they acted properly and in good faith.  Although the documents are technically inadmissible hearsay, they can be fully admitted under the business records exception to the hearsay rule or admitted only to show that the employer had a proper motive for its actions against the employee.

A recent federal court decision in an age discrimination case, however, makes an important point: for investigatory documents to be admissible, the employer has to conduct a quality investigation that actually seeks to determine if discrimination or harassment occurred. The court found that had not occurred in this case, providing a variety of reasons:

  • The investigation was conducted by a company human resources professional, not a neutral party.
  • The HR investigator selected whom to interview and what evidence to consider.
  • There was no hearing, no sworn statements, and no opportunity for the complainant to respond to the criticisms leveled against him or to examine witnesses.
  • The investigator’s report did not include evidence that would have been favorable to the complainant.  It did not include his performance reviews or interviews with the complainant’s clients or previous managers.
  • The investigation focused more on the complainant’s job performance, particularly on two difficult customer accounts, and not on whether he was terminated because of his age.
  • It appeared that the purpose of the investigation was to exonerate the company rather than to determine if the complainant was treated unfairly.  This was shown by the fact that the investigator said he would have discontinued his investigation had the complainant signed a severance agreement.  The court said that if the purpose of the investigation truly was to determine if there had been unfairness, the employer would not complete it only if litigation was looming.

In my experience, some of the court’s reasoning here is a bit extreme, particularly its criticisms of the lack of a hearing, opportunity to examine witnesses, and sworn statements.  These are not typically required elements of an investigation.  But the case does have a number of key takeaways:

  • In more complex or significant cases, it is often wise to hire an outside neutral investigator.  If that is not feasible, the internal investigator should pursue the matter with the same integrity and scrutiny that a good outside investigator would.
  • An investigator should always ask the complainant for (1) a detailed account of his or her complaint; (2) relevant documents; and (3) names of witnesses he or she would like the investigator to interview.  To the extent feasible, the investigator should then follow up on all of these allegations and leads.
  • The investigator should include in his or her investigative report any positive evidence gathered.  If despite these positives the investigator finds against the complainant, the report should indicate why the positive evidence was not determinative.
  • Once an investigation is begun, it should be completed regardless of whether the complaining employee leaves or the issue becomes moot.  In fact, even if the employee submits a complaint only after her or she has left, the employer can still conduct an investigation.  The goal should be to determine if there is a problem and to properly manage risk, not to just pay lip service to the company’s EEO policy.

Do you see any other morals to this story?  ~Amy Stephson

Clearing the Air After a Workplace Investigation: Part 2

In my last post, I discussed the negative impact an investigation can have on a work group.  I also addressed the “low hanging fruit,” i.e., the basic post-investigation actions that need to be taken.  In this post, I describe a “normalization” process that can be used to address the significant stresses that result when all parties to an investigation remain in the workplace.

Typically, this process is led by someone with coaching, mediation, and facilitation skills. It can be an internal person, if he or she is not part of the workgroup and was not involved in the investigation.  Often, it is better to bring in someone from the outside.

The process has several steps. First, the coach/mediator needs to get a basic background: the allegations, the type and extent of the investigation that took place, and the findings. Though helpful, it is not necessary for the coach to read the investigative report and often this does not occur.

Second, the coach/mediator should interview the parties. Questions include what happened, how have the parties’ interactions been going since the investigation began, and what would enable the party to move past the investigation. The coach/mediator should get each party’s agreement to a facilitated meeting and determine if they have any concerns or preferences for the meeting. It is important that the coach/mediator develop a rapport with each of the parties – and to understand where each is coming from – as a prelude to the meeting.

The next step is preparation of a meeting agenda. Each one is unique to the situation at hand, but has certain common components, including discussions of (1) the role of the facilitator; (2) common goals that all of the parties share; (3) how the parties want to interact with each other in the future; and (4) what the employer wants and needs from the parties. It is a good idea to send the agenda to the parties in advance for their review and comments. The coach/mediator also needs to prepare a “Ground Rules” document to guide the participants’ interactions during the meeting.

The meeting itself should be in a comfortable, private space. The table should be such that no one has positional authority or precedence. (Yes, these are not that different from international peace talks.) The participants may or may not fully stick to the agenda, but the facilitator’s job is to ensure that the essential matters get discussed in a concrete manner and resolved to at least some degree, even if it’s only deciding to meet again to continue the discussion. The facilitator also needs to ensure that the uncomfortable topics get out on the table, e.g., retaliation or performance concerns.

When the meeting is over, someone needs to write down what was decided. Typically this is the facilitator and the notes should be sent to all participants for their corrections, additions, and changes, if any. If a second meeting is contemplated, the facilitator will want to try to ensure this actually happens.

What happens when all the notices have been sent and the meetings have occurred? Management should continue to check in with the parties from time to time to see how things are going and take appropriate action as needed. And hold its breath.

What have you done to normalize things after an investigation?  ~Amy Stephson