Tag Archives: workplace investigation

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

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

 

 

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

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

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