The Best Way to Avoid EEOC Claims

When a letter comes in the mail with a return address of the EEOC, I think we can all agree that it’s not likely to be good news. But there are a few changes that can be done to reduce or avoid EEOC claims all together. The EEOC  harassment task force spent a great deal of time and money to determine that it is all about accountability. Here are the top takeaways:

  1. Accountability must be demonstrated.
  2. An effective anti-harassment system that includes safe reporting, thorough investigation and proportionate corrective actions creates a cycle that reduces harassment.
  3. A trusted system drives earlier reporting for more effective resolution.

Consistent accountability across all levels of an organization is not going to magically fix all of your people-based challenges overnight. But with time, and consistent application of process, here are a few of the improvements you can expect.

Example: An employee feels as though he is spoken to disrespectfully by his manager based on his ethnicity.

Issue                                                       Before accountability             After accountability builds trust

Productivity EE feels that his work will be unfairly critiqued, and he has no hope for promotion. Why work hard or provide innovating ideas when he will likely be subject to humiliation in front of his peers? EE feels comfortable talking with HR and working to improve communications between he and his Manager. He begins to take pride in his  work again and hopes to grow within the company.
Disengagement EE doesn’t want to bring attention to himself or his work as the attention he gets always seems to be negative. So, he does a minimal amount of work, doesn’t take risks, ask questions or try to improve or speed up production. Once the EE feels better in his work environment, he generally wants to show appreciation by showing that he is a loyal employee, works hard and is a good candidate for future promotion.
Absenteeism Stress and depression from a hostile work situation often manifest in physical symptoms and depressed immune system functions that lead to an increase in the number of days calling in sick to work. Knowing that problems can and will be addressed respectfully and result in a positive outcome allows the employee to get up every morning feeling positive about going to work. He wants to be accountable to his peers.
Turnover EE feels that there is no way to fix the disrespect and unfair treatment in his job and the only choice he has is to leave. Along with the employee, skills and product knowledge go out the door. Research shows that employees who feel they are treated fairly and are given growth opportunities are almost 60% more likely to stay and move into the next level of job.
Recruiting EEs who leave their jobs often feel disgraced. This leaves them more likely to share the reason why they could not stay both in person and on social media. Potential employees read these reviews and are deterred from applying. Positive employee reviews generally don’t happen unless employees really enjoy their work, management and the company. High ratings increase the number of applicants received for open positions and make it easier to hire good candidates more quickly.

 

The Harassment Task Force put together a simple one-page Employer Checklist that I suggest every HR professional should go through twice. The first time as the HR resource in your company evaluating your harassment and discrimination complaint and prevention process. And the second time as an employee considering what you would answer if you had a complaint or witnessed unacceptable behavior. Then I challenge you to write down at least three things you can do to change the perception of the accountability process in the eyes of your employees. If you need help, read this post for a few suggestions. Every process has room for at least a little improvement.

Implement a compliant, consistent investigation process with InvestiPro!

Is Your Consistent HR Investigation Process Truly Consistent?

Go ahead and say it. “Every investigation is different.” I agree with you. Any two situations involving people will be different. People’s actions, emotions and beliefs, etc. are all over the board. But there is a difference between the outcome of an investigation and the process of an investigation. And the process can and needs to be consistent. Not just for liability protection, but for the people involved in the investigation. Let’s look at the legal reasons for consistency first. And then we will dive into the reasons why your people and culture depend on a consistent process.

 Liability 

The EEOC Preliminary FY 2018 Sexual Harassment Data states that the EEOC alone recovered nearly $70 Million for victims of sexual harassment. That’s up from $47.5 million in FY 2017. And that doesn’t include discrimination claims or claims made to state agencies. So, we know that the need for consistent, defensible investigations is increasing. In our discussions with thousands of HR professionals over the past 3 years, over 95% stated that their investigation process was not sufficiently consistent and could create liability exposure. A significant amount of that exposure is due to potential discrimination within the investigation process. In a recent article published by the American Bar Association,  “An Attorneys Guide to Workplace Investigations” the author stated that the investigator’s method of recording and memorializing witness interviews must be accurate, complete, unbiased and trustworthy. The following are two examples of where inconsistent interviews could lead to liability.

Examples

Example 1: An employee came to HR with information on an incident that took place between her and two female employees. The accused were interviewed by different managers because they work in separate locations. Both interviews began with a standard set of questions, but additional questions took completely different paths. Although it is encouraged to ask clarifying questions based on the responses to core questions, it is important that additional questions are not added to one interview based on the perceptions of the interviewer. The first accused was asked clarifying questions based on observances and recollection of facts that took place during the incident. The second accused was asked additional questions regarding her feelings toward the victim based on the interviewer’s perception of her sexual orientation. The first accused was not found to have violated company policy or law. The second accused was found to have violated company policy. She then filed a complaint of discrimination against because she was asked questions about her feelings toward the victim based on her perceived sexual orientation, when the other accused was not.

Example 2: Two witnesses to an incident that took place at a company-wide event were interviewed by two different managers. The recollection of what happened during the incident were completely different between the two.  The findings of the investigation were based on one of the witness testimonies, as the other witness was determined not to be credible. The findings were that the complaint was not substantiated based on witness testimony. The victim filed a complaint with the EEOC stating that there were two people that witnessed the incident and one confirmed her claim. When the EEOC reviewed the investigation file, their determination based on the interview notes was that one witness had been subject to bias according to the questions asked, tone of the questions, and the interviewer’s comments and judgements made during the interview. As such, the investigation may be deemed insufficient, negating the employers affirmative defense which allows an employer that exercised reasonable care to prevent and promptly correct harassment to rebut a harassment claim.

Impact on Culture

Although liability is a huge concern, the negative impact an inconsistent investigation process can and will have on company culture can be just as costly. When employees don’t feel as though they can trust the investigation process, that they will not be treated fairly and respectfully, or don’t think their complaint will be taken seriously, they do not come forward. Employee that feel they have been disrespected or treated improperly, carry these feeling with them. They fester, resulting in disengagement, increased absenteeism and often the employee will leave the company. But before they do, they will often spread the seed of ill will to others inside and outside of the company.

The EEOS Select Task Force Report  includes the following findings, that sum these situations up very clearly:

Ultimately, how an employee who reports harassment (either directly experienced or observed) fares under the employer’s process will depend on how management and its representatives act during the process. If the process does not work well, it can make the overall situation in the workplace worse. If one employee reports harassment and has a bad experience using the system, one can presume that the next employee who experiences harassment will think twice before doing the same. Finally, ensuring that the process that commences following a report is fair to an individual accused of harassment contributes to all employees’ faith in the system.

It is no longer enough to have a policy that is communicated to employees every year or so, some templates that are used by HR and managers when a complaint is filed, and hope all investigations are being conducted consistently. We all need to take steps to ensure a respectful, consistent and effective investigation process in order to build a trusting and civil workplace culture that drives positive change.

Let InvestiPro help change your employee’s perception of HR investigations. It’s as easy as:

You’ve got a problem. We’ve got a process. Let’s fix this together. See how it works.

Can’t We Have Consistency, Compliance AND Compassion?

An article posted yesterday in the SHRM HR Daily Newsletter, took a stand that in HR matters,  “Consistency Might Not Be Worth the Cost.” Although I understand that no two situations are exactly the same, and careful consideration of all the factors should drive reasonable outcomes, taking out the need for consistency seems a bit like throwing the baby out with the bathwater.

For literally decades, employment attorneys have been driving into the heads of HR professionals that consistent compliance is everything. Why? Because defending a discrimination, harassment or retaliation claim is extremely difficult when there is no fair and consistent process in place. How can you prove that treatment is unbiased? And liability protection is a big part of the HR function. But I agree, it is not everything.

The dangers of having a culture where it’s okay to decide on an individual basis what is acceptable or allowed and what is not, are more about the impact on culture than about liability. HR professionals and managers are human. And quite frankly, the concern is about leaving the door open to favoritism and unconscious biased based decisions.

The good news is, in this case, you can have it all! You can implement a consistent compliant process that uses organizational beliefs, core values and standards as measurables to determine outcomes. It’s about implementing a consistent, transparent process that is the right fit for your culture and can clearly define and document why and how decisions are made. It doesn’t have to mean the same decision every time. But it does have to mean using the same process to come to the right decision every time, and documenting how that is done.

The benefits of using a consistent, complaint and compassionate process

A consistent, compliant process for handling and/or investigating a situation or incident allows employees to see that:

  • the organization cares about how all people are treated in the workplace.
  • A predictable and transparent process means that employees will be treated fairly and with respect, no matter what the outcome.
  • their voices matter and there are means to begin conversations on things that are not working before they become big issues.

Once employees understand and trust the consistent processes, they will use them earlier and more frequently to resolve issues resulting in:

  • quicker and more respectful resolution to problems large and small.
  • increase in team work efficiencies and enjoyment.
  • peer to peer resolution through more open communication.
  • reduction in fear of bringing issues to the forefront.

Let’s face it, employees who feel they are treated fairly in opportunities, valued in their contribution, and respected in communication and treatment thrive in the work environment.  It is okay to be creative, open to new ideas and practices, but we don’t need to lose consistency in order to do it.

Do you know how your employees feel after an HR investigation?

This is a question we ask often, and it tends to take people by surprise. Why? Because they are not sure. After 25+ years of conducting HR investigations,  I understand the reasons why we don’t continue to talk with employees after an investigation is complete. It’s better to let sleeping dogs lie. Or is it?

As HR is finding new focus on strengthening company culture as a strategic step toward more effective recruiting, retention, engagement and employee development, we are finding new and better ways of receiving feedback from employees on their total work experience. Unfortunately, this does not yet seem to have made its way to matters of accountability, investigations and discipline as discussed in The HR Happy Hour Podcast.

In our company, we talk to HR professionals about their investigation practices every day. And we see consistent patterns in the feedback we receive about the investigation process. But when we ask how employees feel after an investigation, there is often silence. Some will say, “Nobody feels good after an investigation”. We’ve even heard strong statements such as, “Just the word investigation makes our employees feel like criminals”. And there are those times we hear, “I think they feel okay about it”. But wouldn’t it be better to know how they feel rather than to guess?

Small Changes have a Big Affect

Bad feelings fester. It’s just part of being human. Think about how you feel after a conflict, argument, bad customer service experience or even simply being cut off in traffic. That anger and frustration carries with you for some time. Now think of the relief you feel when the person who cut you off waves and says sorry, or the sales person apologizes and says they didn’t mean to snap at you, they got stuck working a double shift and are just exhausted. This immediately changes how you feel about the incident.

Asking for feedback after an HR investigation does not need to be another big task on your list of things you simply don’t have time for. It can be as easy as creating a brief email template that you send out to every participant each time you complete an investigation. Here’s a sample you can use to get started.


HR Investigation Follow Up Sample Letter

Dear Sonya,

 I wanted to take a moment to thank you for participating in the investigation we just concluded because I understand it can be a  bit uncomfortable at times.  The process is here to ensure our workplace is fair, safe and respectful for everyone. So, if you could please take a moment to reply and respond to the three questions below, I would really appreciate your opinions. The information  will not be shared and will provide me with the insight needed to continue to refine and improve the investigation process moving forward. Thanks for your time.

  1. Was the investigation process what you had expected from the beginning? 
  2. At any point in the investigation did you feel disrespected, uncomfortable or unsafe? 
  3. Do you have any suggestions on how the investigation could have been a better experience for you?

If you would like to talk in person, please let me know and we can schedule a few minutes. Thank you again.


If you conduct post investigation feedback or have any questions on how this works, please comment below so we can all benefit from each other’s experience.

Did you know you can reduce time by up to 40% using an automated, consistent process?

Check out Investipro today!

 

The HR Impact of Gender Quotas on the Board of Directors

Whichever side of the line you stand on, everyone seems to agree that the new California Law requiring at least one board seat be filled by a female for publicly traded companies leaves a lot of room for debate and concern. In fact, Governor Jerry Brown wrote in his signing statement for SB 826, “I don’t minimize the potential flaws that indeed may prove fatal to its ultimate implementation.”  And, as is often the case, it is likely that other states will follow. Although California is the first to have binding regulations, Pennsylvania, Massachusetts, Illinois and Colorado, and various municipal governments, including the city councils of both Philadelphia and New York, have already passed nonbinding resolutions aimed at increasing female representation on boards.

As with many new business-related laws that take effect, HR should take preemptive steps to determine the impact this may have on their organization. The California Chamber of Commerce has argued that the new policy, “violates constitutional prohibitions against discrimination”, and “prioritizes gender over other aspects of diversity such as race or ethnicity.” When these statements are made publicly, discrimination claims tend to rise.

In light of the potential stir that may arise from the search for a female to add to a board that is already in place, the possible unseating of a current Director, or the placement of a so-called “token female” on the board,  HR may want to proactively consider the following measures as a way to step up to the table and provide added value in the process.

Provide a summary of the potential impact the search for a female Board placement could have on the company. Suggested items to be covered:

  • Reminder that placement without prior communication could create an impression that the Board is simply filling a mandated requirement with the easiest or safest option.
  • Communications early on as to what the Board is searching for including qualifications, experience, strategic vision and leadership capabilities can clarify the company goals for the position and prevent the appearance of bias.
  • Positive communication within the company during the process can create excitement as the company moves toward increased diversity, and the impact that will ultimately have on the company.
  • Clarification on who will own the placement process will prevent duplicated efforts.

Provide a proposal of how HR could assist with creating a positive outlook, such as:

  • Providing staff communications on the search, and how the company is excited to embrace this new opportunity for balance in leadership.
  • Assist with initial search efforts and screening to allow the process to move forward in a timely manner.
  • Suggest that HR could provide guidance to the Board on how to document the process and decision as protective measures against discriminatory claims after the fact.

In the long run, a more diverse and balanced Board of Directors will likely have a positive impact on business performance and company culture. Taking the initiative to shine a positive light from the start can make the process better for everyone involved.

Accountability, Culture and Workplace Investigations

Join our CEO, Dana Barbato, as the guest of HR Happy Hour for this important and timely topic.  

This week on the HR Happy Hour Show, hosts Steve Boese and Trish McFarlane talk about workplace investigations with guest Dana Barbato, Founder and CEO of InvestiPro, a cloud-based employee relations platform that supports HR through employee incident reporting, automated workplace investigations, and timely prevention analytics. On the show we talked about the current climate of HR and workplace investigations, how it probably has never been a more important topic in HR, (think about Uber, Intel, Papa John, and so many more current examples), and how when done right – workplace investigations can strengthen an organization’s culture, create accountability, and show employees how much the organization is committed to their values and mission.

Dana shared some of the most important things to remember when carrying out effective investigations, and how modern technologies can assist HR leaders in creating the consistency needed to undertake the investigative process, and reach the best and most fair outcomes.

Are You Outsourcing or Insourcing Your Investigations?

According to an article in Bloomberg Law, (Article: Surge in Outside Workplace Investigations in #MeToo Milieuir) there has been a surge in the number or workplace investigations being conducted by third-party investigators. Along with the high level, high dollar cases we read about in the news, these are the cases that are easily measurable. The article quotes Amy Oppenheimer, Law Offices of Amy Oppenheimer, as saying that “only about five out of 100 claims rise to a high level of seriousness.” So, what about the other 95%?

Employers are required to investigate all claims. But more than that, they must investigate any time they become aware that harassment, discrimination or bullying are taking place in the workplace. Even if no one has come forward to complain. At an average cost of $8,000 – $20,000 per investigation for outsourcing to an attorney or investigator, and an average of 1 investigation per 50 employees per year, an employer with 1000 employees could spend $200,000 per year on outsourcing their investigations. This sounds like a significant expense, until you consider the cost of a claim if one investigation is not handled properly.

Most HR professionals know the answer to this ongoing problem.  Companies must have a consistent, compliant and thorough investigation process in place for conducting these investigations in-house. And when you ask them, the first response is that they do have a sound process in place. But when digging a bit further, the majority will say that the process is inconsistent as there are several people who conduct the investigations and they all have their own way of doing things. Or, that their process relies heavily on emails, hand-written notes, and questions that are developed on the fly. So we ask, “18-months from now when you get a notice from the EEOC or state employment agency, do you feel you could adequately defend the investigation you conducted?” The answer is generally not a feeling of confidence.

There is a better alternative available that makes it much easier to prove a consistent and complaint investigation process. InvestiPro, as mentioned in Bloomberg Law, is the first automated investigation solution. Schedule a demo and spend a few minutes learning how technology can help you have confidence in your workplace investigations.

5 Reasons We Don’t Need HR Investigation Software

There are several reasons why HR professionals say they don’t need an HR investigation software, but there are a few that I hear time and time again. You may even find yourself using one or more of the reasons below. And that’s understandable with all the new technologies entering the HR marketplace today. As a 25- year HR professional myself, I used to feel the same way. But before you reply on the same old responses, it may be worth looking a bit deeper.

Let’s look at the 5 reasons “why we don’t need HR investigation software” that I hear most often.

  1. We have a team of HR people who conduct our investigations. They all have experience and like to do things their own way. They’d be resistant to being told how to do their investigations.
    • Good HR investigators have developed special skills such as how to draw out information from someone who doesn’t want to talk. Or, how to know when someone is lying. But no matter how strong your investigators are, using different skills and techniques can result in challenges when it comes to proving that your investigation process (or processes) are consistent and unbiased.                                                                                                                                                                                                                          
  2. Every investigation is different and needs to be handled according to the situation. Investigation technology is too rigid to allow us to handle each investigation accordingly.
    • If you have ever had to defend your investigation process in response to a discrimination or harassment claim with the EEOC or a state agency, then you understand the fine line between having an effective, repeatable investigation process and using your process to obtain the information needed across all types of investigations. An automated investigation platform makes it easy to prove that a consistent process is used every time by not leaving any step to chance. For example, core questions are used to begin every interview ensuring an unbiased approach with every witness. While inserting clarifying questions based on responses allows you to dig in to obtain the responses you need to make a fair determination.
  3. Investigations are time consuming enough without complicating the process with pre-determined steps and requirements.
    • No matter how you conduct your investigations, the time required can be very taxing on your staff. And if you’re a solo HR practitioner, it can really impact your schedule. When asked approximately how many hours it takes to conduct an investigation, responses were all over the board. But one thing was very consistent. When asked to provide a time estimate that included preparing for the investigation, converting notes to readable testimony, and writing the final report, the time estimates almost always doubled. An automated process can be very simple to use and reduces redundant data entry, time spent creating notices to investigation participants, and final reports are generated for you, reducing time by up to 40%.
  4. We have an attorney who we consult with on our investigations, so we’re pretty sure that we can defend our determinations and practices.
    • It is always important to have good legal counsel to provide you with guidance on appropriate corrective actions, especially in the case of a termination resulting from an investigation. But your attorney cannot be there every step of the way during the investigation itself. If your attorney participates in conducting the investigation, he or she is not able to represent you should litigation ensue, due to the potential of being called as a material witness to the case. For that reason, automated investigation technology allows for your attorney to participate in an advisory role, while the technology itself provides the built-in compliance measures needed to protect you from exposure during every step of the investigation. Most attorneys appreciate the protections that technology provides for their clients.
  5. I understand the benefits from this type of technology and how it could be useful, but it’s not at the top of our priority list. We just don’t have a need for it yet.
    • The two items that are most often on the top of the HR priority list are talent acquisition and employee performance/engagement. And rightly so. When you are struggling to fill positions as we are in the current economy, productivity slows down making it of utmost importance to fill those open positions. Especially if current staff is not working to their fullest potential. But when you flip the coin and look at these issues from a proactive rather than reactive position, it becomes clear that cultural improvement through civility and communication can improve retention and build employee trust in their managers, peer and leaders. Studies show that employees who feel appreciated and respected, stay longer and work harder. These foundational begin with accountability for all staff, in all positions, throughout the company. And if waiting results in even one claim of harassment, discrimination or retaliation, hesitation can be very costly.

If you are ready to take a new look at how technology can standardize your investigation process, save you time and money, and ensure a consistent, defensible outcome to your investigations, schedule a demo at  https://investipro.com/get-started/.  

For more helpful tips follow the HR Investigator’s Blog.

4 Steps for Communicating the Importance of Liability Protection, by Corie Mallen

In today’s society, it seems like an obvious idea that every company has an effective process in place to protect their employees and themselves from liability associated with workplace incidents. However, sometimes the costs of implementing such processes can weigh heavily on the decision to move forward with a new product or service. Here are some tips on how to sell your decision makers on the necessity of having a secure and consistent process in place to be aware of and investigate workplace incidents.

  1. Think about what outcome you want and how what you are proposing can make your workplace better for both employees and management. 

Workplace incidents can cost companies hundreds of thousands of dollars in numerous ways whether it be settlements, lost productivity or losing good employees because there is not enough trust in the company. There are new programs and systems that utilize technology to make investigations more efficient and consistent and while the cost of these programs may not already be a line item in your budget, they should be weighed against having to pay a large settlement, the cost of back filling positions of good employees who decide to leave and how much time will be saved  with an automated  process.

  1. When building your proposal, realize who your audience is and what benefits this proposed endeavor will provide for them as well as the company as a whole. Sometimes proposals are more about educating your audience. When you’re presenting to someone who has possibly never conducted an investigation, what would you like them to leave having learned? How can you speak to them, so they will understand your viewpoint? It all goes in to knowing your audience and your own goals. For example, if you’re trying to sell them on a product that streamlines investigations and the Chief Financial Officer is your roadblock, try to include statistics on the money saved by having such a product in hourly wages through automated efficiencies or simply a comparison of a past settlement to the subscription cost.
  2. Test out your proposal.

Before heading in to sell to the decision makers, try and catch one or two of them to test your proposal and adjust where necessary. Testing can give you valuable feedback on what to expect before going into a presentation. You don’t have to run through your entire proposal but if you can catch one or two people for a few minutes and give them a couple of points you feel are important to your case, they may be able to give you feedback on certain language you may want to use, or their body language can yield whether your presentation held their interest. This may also allow them to think through the proposal ahead of time so you will have at last one or two people on your side going into your presentation.

  1. Stay calm, control your presentation and utilize opportunities for further discussion.

It’s important to stay calm. If you believe in what you’re trying to sell to management, it will come across as such. You want to make sure you’re prepared with all obvious answers to questions and make sure you control the time and stay on track during your presentation. If a question is asked and you don’t have an answer, don’t panic. Just let them know you will get back to them with the information in a timely manner. That will open the door for further communication on the subject and allow you to keep the idea fresh in their minds.

If you would like a proposal template to help you prepare to present your project for budget approval, email Corie@goinvestiPro.com.

To learn more about new tools that are available to help calm the fear and chaos in workplace investigations, and make you the hero by improving your company culture while increasing liability protections, go to GoInvestiPro.com.

HR Offense -vs- Defense. What’s Your Plan?

It still surprises me when I hear that employees have brought forth a complaint to HR or a company executive, and no investigation was conducted. Although the numbers are reducing over time, some organizations still believe that there is less liability in simply doing nothing. Then, if a claim arises, a quick settlement is the customary resolution. But where does this leave your company culture?

Although you may have a process in place, there must be a plan for actively using the process and communicating it to employees regularly to be effective. When reviewing your policy and process, is the strategy for Offense or Defense? When your favorite sports team takes the field, do you think they just run out on the playing field and start playing? Although that might be hysterical to watch, it would obviously be chaotic and inefficient. And for some of us, I understand that is how our investigation process feels at times. But it doesn’t have to be that way.

Taking an Offensive stance can reduce time spent on investigations, reduce potential liability exposure, improve retention and strengthen company culture through accountability and trust. In the SHRM article, “New Tools Aid HR During Workplace Investigations” Aaron Crews, attorney and chief data analytics officer with Littler in Sacramento, CA, confirmed that, “After receiving a notification letter from the EEOC or a state agency that a claim has been lodged, companies can respond before the regulatory body proceeds with the claim. Historically the EEOC has dropped over 53% of claims made based on the employer having performed a prompt and impartial investigation based on a planned, consistent process.

We can provide information that further explains the benefits of an Offensive stance on unwanted workplace behaviors?  Follow our Blog, and we’ll send you a whitepaper that can help.