Tag Archives: risk management

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

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

To Terminate or Not

Many employers are very averse to terminating employees. This is a good thing: we all need to earn a living and depriving someone of their livelihood, particularly in this economy, is not something to be taken lightly.   

What I see a lot of, however, is employers keeping employees who are nonperforming, toxic, or both (they often go together) well beyond their pull date.  So long as the employee doesn’t steal or punch someone out, the employer holds off on termination.  There are a number of reasons for this, most of which come down to fear of a lawsuit.

Lawsuits are not good for employers.  They drain money, time, and energy.  If an employee was terminated improperly, a court may order the person reinstated.  Employment lawyers, therefore, rightly advise clients to get their ducks in a row before firing someone.  This consists primarily of documentation of the problems and efforts to work with the employee on remedying them.

So what if the employee is a huge problem but the documentation is weak?  (See my earlier post on documentation.)  Should an employer always take the time to dot all the i’s and cross all the t’s before terminating the employee?  The answer requires analysis of a number of factors:

  1. How bad is the behavior or performance?  Obviously, really bad requires less documentation.
  2. Is there any reason to believe that the offending employee truly hasn’t been given notice and an opportunity to correct his or her ways?  If so, this notice and opportunity needs to be given.  (Do not, however, be derailed by bogus employee protestations that they were unaware of the problems – particularly in situations where  you know that management spoke with the employee on a number of occasions.)
  3. Is there something other than termination that might resolve the issues, e.g., a transfer to a different location or workgroup, a different job, a different supervisor, etc.?  If the employee is represented by a union, his or her union rep may be able to help with this.
  4. Does the employee acknowledge there is a problem? If not, it will be impossible to fix the situation short of termination.
  5. What impact is the offending employee having on the work group?  As I’ve discussed in an earlier post, a toxic employee can have a devastating effect on morale and productivity.  If nothing else, the fact that management does not seem to be addressing the problem can itself wreak havoc in a workplace.
  6. What impact is the offending employee having on the bottom line?  If the employee is not bringing in money or is costing the employer money, that is a valid factor to be considered.
  7. Does the employer have Employment Practices Liability Insurance (EPLI)?  This is an insurance product that covers businesses against claims by workers that their legal rights as employees have been violated.  If an employer lacks insurance and could not afford defense costs even in a frivolous case, the calculus becomes more difficult.

Finally, there is the overall question: which is worse: a lawsuit or keeping this person around?  If the answer is keeping them around, termination is in order.  And if litigation results, so be it.

 Are there other considerations that should go into this type of termination decision?  ~Amy Stephson

Want a Social Media Policy?

More and more employees are using social media (Facebook, LinkedIn, Twitter, personal blogs, etc.) on a routine basis.  Why do employers care?  Because employees may get online and merrily create discrimination, hostile environment, or defamation claims, hurt the organization’s reputation or brand, create antitrust liability, or otherwise cause heartburn for the organization and its other employees. 

In earlier posts about Facebook and online romance, we discussed the potential harassment implications of online posts by employees about other employees.  In this post, I’m going to briefly address the kinds of provisions that an employer will want to include if it decides to draft a social media policy for its employees. 

There are a number of theories as to how to draft a social media policy, including advice on how to get employees to actually follow the policy.  Sticking to basics, however,  employers will want to make sure that four points are included one way or the other:

  • Employees are responsible, both legally and generally, for the content of their online activities.  While you likely don’t want to say it in the policy, this means: “Employees, you can be sued or fired for what you say online so be careful!”  Alternatively it means: “Don’t be stupid!”
  • If an employee is discussing anything relating to the employer, e.g., its products and services, the employee must identify him or herself as an employee and make it clear that he or she is not speaking for the company.  In fact, Federal Trade Commission guidelines require an employee who endorses a company’s products or services to disclose the employment relationship. See, www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf.  
  • Employees may not disclose confidential or propriety information about the employer.  No stock tips either: the Securities and Exchange Commission prohibits insider trading tips and this includes tips via social media.  See http://www.sec.gov/answers/insider.htm
  • Employees should not mention clients or other employees without their approval.

If you want to see a comprehensive policy, check out IBM’s “Social Computing Guidelines,” which you can find at www.ibm.com/blogs/zz/en/guidelines.html.  It’s a veritable statute, with a preamble, guidelines, and detailed commentary – and is a good place to start. There are numerous other sample policies online as well.

So what about a policy that tells employees they can’t trash the company or their boss online?  Stay tuned: this is more complicated than you might think.  I’ll write about it in my next post.  In the meantime, do you have any tips on social media policies?   ~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

Holiday Parties: A Risk Management Primer

Word has it that many employers are eliminating or downsizing their holiday parties this year due to the economy.  While that’s hard for the food and beverage industry, it’s good for employers’ risk management.  Why?  Because holiday parties are notorious breeding grounds for harassment claims. 

Several things contribute to this situation.  First, the free flow of alcohol.  Second, the free flow of alcohol.  Third, employees who somehow think that because it’s a party, it’s not work-related.  Fourth, managers who set a bad example for the troops. 

So what’s the solution?  Tame parties are good: lunches, potlucks, white elephant gift exchanges.  If an evening party is the tradition, keep the alcohol to a minimum, coach management on its role model obligations,  and end the party early.   Or just give out gift certificates for a Christmas ham or turkey.  Really boring, but tasty and useful.   ~AS