Category Archives: Workplace Investigations

Clearing the Air After A Workplace Investigation: Part 1

Investigations are a necessary and often beneficial part of the modern workplace.  However, they can also be disruptive and leave bad feelings that may linger for a long time.  After seeing the negative effects of investigations for more than 15 years, I have come up with a few ideas on how to reduce and potentially eliminate those effects. 

 First, it is important to understand the impact an investigation can have on the employees involved in it – regardless of whether the complaint was found to be meritorious or not.  

  • The complainant fears retaliation, ostracism, or just plain being disliked.  He or she may be upset or angry if the investigation did not substantiate the complaint or the response to the complaint is seen as inadequate in some other way. 
  • The respondent may feel embarrassed, betrayed, or unjustly accused by the complainant.  He or she may also fear being disliked or ostracized. If the respondent is the complainant’s supervisor or manager, he or she will have concerns about how to manage the complainant’s performance and behaviors without bringing on charges of retaliation. 
  • The witnesses also fear they may be retaliated against or disliked.  They may feel guilty for informing on a colleague or for not disclosing key information.  They may be angry at having to take sides or just at the workplace drama in general.

So what can be done to address all this?  First, there’s some low hanging fruit:

  • Inform the parties of the outcome. Certain decisions may be confidential, e.g., discipline, but it’s important to inform the complainant(s), those accused, and relevant managers/supervisors of the outcome of the investigation. Sounds obvious, but surprisingly often it doesn’t happen. 
  • Inform the witnesses the investigation is completed. Thank them for their cooperation, remind them it’s confidential, renew assurances of no retaliation, and urge them to come forward if additional incidents occur. Don’t just leave them hanging. 
  • Take the recommended steps. If discipline is warranted, do it. Investiga­tions may highlight the need for training, coaching, conflict resolution and the like. If such actions are needed, do them. Strike while the iron is hot.

More difficult is how to address the continuing and future interactions of the key parties: the complainant, respondent, and possibly their manager.  You can be sure that they feel acutely uncomfortable and tense around each other and wonder if things will ever be “normal” again.  Left to their own devices, they may figure out how to comfortably interact again, but it will take a long time.  And they may never figure it out.  In such cases, it is not uncommon for one or both of the parties to leave their jobs and possibly sue.

In this situation, it is well-worth the time and resources to employ a “normalization” process to help the parties’ relationship get back on track.  In my next post I will discuss this further.  ~Amy Stephson

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Documentation: The Good, the Bad, The Ugly

Those of us in employment law and human resources think a lot about documentation.  Some of it has to do with potential legal liability and some has to do with just recording what happened or was decided, for clarity and future reference.  Like the “many moods, the many shades, the many sides of George Costanza,” of Seinfeld fame,  there are many sides to documentation. Herewith a few of my thoughts:

Email — or “evidence mail” as some lawyers say — has become king. It’s so convenient and easy to use, that everyone in the workplace uses it.  And at the same time creates a written record of what’s going on, what employees are saying, what managers are doing, and so on.  Lawyers love email.  Employers and employees may love it less if it comes back to haunt them.

Documentation is not necessarily accurate.  After conducting many investigations in which complainants provide extensive, detailed written documentation of events, sometimes covering several years, I’ve come to a tentative conclusion: It’s often not the truth. I’m talking here about page upon page, usually single-spaced, documents rehearsing in detail often-tiny interactions and events, many of which don’t quite make sense.  You read this type of documentation and often (1) wonder how the person remembers all this; (2) have a hard time staying awake; and (3) question why anyone would do what the complainant alleges the wrongdoer did.

Documentation is best created contemporaneously.  The gold standard is an account of an event or conversation written while or shortly after it occurred.  The closer to the event, the more credibility a document has because inaccurate memory has less opportunity to intervene.  The documentation need not be long or super-detailed, but it must include the key information (“I told X she would be terminated if Y happened again.”) To be really gold-plated, the document should indicate when it was written, who wrote it,  and when the event occurred.

But it’s OK to create documentation after the fact.  You have to be honest about when it was created, but a document prepared based on memory, review of calendars and emails, and miscellaneous other reminders is better than nothing.  Some will say, “If it’s not written down, it didn’t happen,” but actually it’s all evidence, of varying credibility. So a coherent, after-the -fact documentation that indicates its sources can be better than nothing.

What are your reflections on documentation in the workplace?  ~Amy Stephson

Recognizing and Addressing “Emotion” Words

When investigating, mediating, or otherwise attempting to resolve a workplace conflict, it’s helpful – indeed critical – to recognize “emotion” words.  What are emotion words?  Words that contain more heat than light and that therefore call for further exploration of what’s going on. Another word for them: hyperbole.

Two classic emotion words are “always” and “never.”  When an employee says that something “always” (or its cousin, “constantly”) happens, it’s time to ask for specifics, i.e., how many times has the event occurred or comment been made?  Despite having conducted thousands of investigative interviews, I remain surprised at how often the answer is “two or three times,” “three or four times,” and the like.  Similarly, with “never,” it’s helpful to probe a little further to see if it’s really never, or just “not recently.”

Another example is “yelled” as in, “He yelled at me.”  The dictionary meaning of “yell” is to say something very loudly.  Yet many people will say they were “yelled at” to describe any negative or critical comment directed toward them.  Therefore, when you hear that someone was yelling, it’s always wise to ask the person to demonstrate exactly how loud it was. They themselves will often then recognize that it wasn’t loud, just upsetting, intense, or rude.

One more: duration of time.  People will often say that something lasted for “an hour,” or “at least 20 minutes,” or some other fairly long period of time, when they’re describing a negative event (such as being yelled at).  In these situations, I often count out seconds (one one-thousand, two one-thousand, three one-thousand, etc.) and then ask again. The resulting number is usually very much smaller.

So does this tendency to exaggerate mean that the person is not credible? Not necessarily. It just means that many people express the emotional content of an event through hyperbole and emotional words.  And while it’s essential to separate out the emotion from the facts, it’s important to nonetheless recognize the emotion behind the words and take this into account as you figure out what to do with the crazy situation before you.

What are some other emotion words you’ve encountered in the workplace?  ~Amy Stephson

What REALLY causes investigations?

I was recently thinking again about the big reasons that workplace investigations happen. Let me tell you a story.

Several employees in a large work unit (one Caucasian woman, one African-American women and a Caucasian man who says he’s gay) go to Human Resources with complaints against Frank, their supervisor. They say he discriminates against anyone who is not white, straight and male. They say he doesn’t communicate with them and regularly leaves them out of decision-making. They also say he has a bad temper and frequently raises his voice. They’ve tried to talk to him about their concerns, but say that if you get on his wrong side, he’ll make your life miserable by giving you the worst assignments and preventing you from working overtime (at overtime pay rates). He makes fun of his employees by giving them nicknames (Henry has become Prince Harry, Susan is SusieQ), and regularly made sarcastic comments about them and put them down in front of others.

Frank has been with this employer for over twenty years, and no one has ever filed a complaint against him before. Everyone figures that’s just Frank. Management has heard he has a temper and knows he can be sarcastic – buy he’s always been nice to them, funny to be around and willing to do whatever’s asked of him. Clearly, he’s smart. He finishes his tasks in a timely manner, and has been a great asset. Also, he is a widely acknowledged expert in his field, speaks at national conferences and has written for professional journals.

On the other side, there has been more turnover on his staff than on others, and when the statistics are examined it does appear that women and people of color leave his unit at greater rates than white men. But again, no one had ever complained.

Of course, since this complaint came to management and Human Resources, it had to be followed up. But – why is this investigation really happening? It’s really happening because, even though no one had formally complained before, management knew there were potential problems in Frank’s area – and ignored them. They ignored the turnover. They ignored the rumors. They ignored the bad temper and raised voice, even when they heard these. They ignored Frank, the bully. 

What might management have done earlier? Instead of waiting for a formal complaint, they could have informally explored what was going on, looked at the turnover data, talked with Frank – and coached him to change style so that a technically good and knowledgeable employee could grow in areas where he needed help without waiting for the situation to blow up – and potentially losing that valuable employee as well as others.

The lesson? Address issues when they come to you  in whatever way (including following up on rumors) – even if no one has complained. It may be more trouble now, but will save you a lot of heartache in the long run.   It won’t be easy – and requires a very gentle but persistent approach.  But it is definitely the better way to go.

Have you worked with “Frank”, as his supervisor, colleague or subordinate? What happened – and did it happen before it blew up?  ~Daphne Schneider

The Corroboration Myth

Perhaps the scariest investigation scenario for an employment investigator – be it an HR person, a manager, or an outside independent – is the classic “He said. She said.” This is the situation where two parties dispute what happened between them and there are no witnesses to the incident.

Many think that without corroboration, it’s just not possible to determine what happened or who is telling the truth. While at times this may be true, it’s often not. The application of credibility factors and a little common sense can go a long way toward deciding what happened.

First, a story. Many years ago I did a sexual harassment investigation. A few weeks later, the accused party called me and said he’d been fired. He then asked if there were any witnesses to the alleged harassment. When I said no, he asked how I could say what had happened. My answer: “I believed her.”

Following are some of the factors to consider when determining witness credibility:

  • Whose story has the most details? A more detailed story is often more credible than a vague or general one.
  • Who has a motive to lie? Typically, this question is asked about the complaining party (why would he or she make this up?) since the accused inherently has a motive to lie. But it can apply to the accused as well as witnesses also.
  • Is the story internally consistent? A credible story is internally consistent.
  • Is there contemporaneous documentation of an event? The key word here is contemporaneous since documentation created months or years later may be helpful, but will not necessarily lend support to the truth of the facts stated in the documents. Too much time has elapsed.
  • Did the party tell anyone about it contemporaneously? Again, if one of the parties talked to someone else very close in time to the event, this may be useful as corroboration of that party’s story. I’ve seen this operate very powerfully. It doesn’t always though, particularly if the party in question has perception issues.
  • Is it likely there would be corroborating evidence if the event occurred? If such evidence is missing, that may be significant. One party alleges that that other was screaming at him. If no one else heard it – and there were people around at the time who should have – maybe the screaming didn’t occur. “Scream” is a rather subjective word anyway….
  • Whose perceptions seem most accurate? Often, no one is lying per se. Witnesses just have different perceptions. The issue then is: whose perceptions seem most accurate based on all the circumstances. Here’s where common sense and putting all the pieces together come into play.
  • Who has access to information? Sometimes the winner is the one with the access to the best information.
  • One clear lie. Sometimes, if you catch a witness in one clear lie, that will cast doubt on other things they said. The lie has to be significant and not just something the witness could have remembered incorrectly.

So is this a recipe for determining credibility? Sadly, no. It still takes judgment, and the courage to take a position. Just tell yourself that the buck has to stop somewhere.

Do any of you have other useful credibility tools?  ~Amy Stephson

A Little Slack

In my work, I see bad supervisors and managers. However, I also see a lot of supervisors and managers who have very challenging jobs and do their jobs well. Many do not always maintain the perfect managerial demeanor: at times, they get cranky, short, or visibly frustrated. This is not ideal, but sometimes I think that the bigger problem is that their employees give them no slack.

Some employees, of course, do take these occasional behaviors in stride. They figure the boss is having a bad day and they’ll just give him or her a wide berth until things improve. They don’t take it personally. Or they do take it personally and decide maybe it’s deserved and they should have gotten the report in on time.

Other employees, however, give the boss no slack. “She’s harassing me” or “he’s abusive.” If the employee is late on a project or screwed something up, there’s always an excuse: I’ve been sick, my car broke down, and so on.

So what’s my point? Employers need to take employee complaints against their managers and supervisors seriously and address them promptly. Communications coaching is often in order. At the same time, when an employer is faced with an employee who is quick to feel abused by a boss who is hard working and overall good, I think it’s important for the employer to also suggest to the employee that he or she give the supervisor or manager a little grace. Nobody’s perfect. Reminding the employee that this applies even to the boss is a point worth making.  ~Amy Stephson

Investigations: The Aftermath

The Problem: The investigation is over and the issues raised have been resolved.  So are we done? In a word: no. Investigations are disruptive, emotional events, not only for the parties, but for the witnesses and the entire workgroup. If the aftermath is not addressed, the problems can linger for a long time.

Employees may have taken sides. Witnesses who were interviewed may worry about retaliation. The complainant may feel unheard – or the respondent may feel unfairly treated. Ordinary careless interactions may seem like slights. If the investigation led to personnel changes, everyone wonders if they might be next.

Most commonly, no one knows whether the investigation is over and if it is, what happened.  Amazingly, sometimes even the complainant and respondent are not given this basic information.  The workgroup feels that management doesn’t deal with complaints.  A cloud of secrecy settles in and can cast a pall for a very long time …. 

The Solution: First: Communicate with the complainant and respondent. 

The complainant.  The employer should meet with the complainant in person. If the respondent is going to be disciplined, it may violate confidentiality protections to provide the details to the complainant, but he or she can be told generally that appropriate discipline is being imposed. If the investigation found no wrongdoing or was inconclusive, the complainant may become upset. All the employer can do is to emphasize that the complainant is protected from retaliation and should bring future complaints to the appropriate individuals. The employer may also want to conduct training even if the investigation found no wrongdoing. The complainant can be told that as well. 

The respondent.  If the investigation showed that wrongdoing occurred, appropriate discipline will need to be imposed. If the investigation found no wrongdoing or was inconclusive, the employer should still emphasize its anti-retaliation and confidentiality policies. In such cases, the respondent may also need to be assured that he or she is not going to be fired or otherwise punished. 

Second:  Communicate with any witnesses who participated in the investigation. Giving each a personal letter (don’t send it by email) that includes the following can go far to allay concerns without disclosing confidential information:

  • Thank you for your participation in the recent investigation.
  • The process has been completed and appropriate action is being taken.  [Depending on the investigative findings, this item may need to be different.]
  • [Employer] takes workplace issues such as those raised here very seriously and appreciates your input. 
  • While [Employer] has no reason to believe retaliation will occur, it would reiterate that you are protected from retaliation for cooperating in the process.
  • Please continue to keep this matter confidential. 
  • If you see any inappropriate behavior, please report it immediately to [fill in] or [fill in].
  • Your continued cooperation is an essential element to providing a positive work environment and is greatly appreciated.
  • Thank you once again.

 Third: Consider training or coaching for the parties, the witnesses, and/or the entire work group. This should be done promptly.

 Some investigations also may highlight (or even cause) interpersonal issues in the workgroup. The employer thus may want to have some sort of teambuilding, mediation, or facilitated discussions among the key parties to the investigation or all or part of the workgroup. It is essential to use a highly skilled facilitator or mediator who has experience with the issues raised by the investigation. Great skill is needed to help resolve the tensions rather than making matters worse.  ~AS