Decision Maker used in investigation process may protect employers from retaliation.

The number of Harassment related retaliation claims being filed with the EEOC is continuing to increase year after year.  And since retaliation judgments can be awarded punitive damages, these can be very costly claims.  Last week the EEOC released new guidance on the definitions and applications of retaliation in the workplace, and one strong protection step that employers can take jumped out at me right away, so of course I thought I should share it with you.Continue reading

Top 10 Investigation Challenges – Part 8; Why your labor attorney may choose not to conduct your workplace investigation.

When a complaint is received, does your company plan to contact a labor attorney as the resource to conduct your investigation? This has been the course of action for many HR professionals in the past and for good reason. Who better to conduct your investigation than an attorney with an in-depth understanding of the applicable laws, knowledge of what questions can and cannot be asked, and experience in making an appropriate determination?  Unfortunately, the attorney’s response may not be what you expect.

Although many employers would like to engage their attorney to conduct the investigation so that the information obtained becomes covered under attorney-client privilege, this is not often the case in workplace investigation litigation. In cases dating as far back as 1996, courts have repeatedly found that investigation documents, notes, and determinations are not protected as these items become part of a business process rather than legal advice. (Harding v. Dana Transport, Inc., 914F. Supp. 1084 (D.N.J.1996) (No attorney-client privilege protects documents produced by attorney or employer concerning sex harassment investigation). In addition, opinions have been increasing over the past couple of years in both state and federal courts that attorneys who potentially may be called as a material witness in litigation pertaining to an investigation conducted by the attorney, could not act as an advocate for the defendant in the case. In other word, if a lawsuit is filed pertaining to the investigation, your attorney could not represent your company.

For this reason, more and more labor law firms are choosing not to conduct investigations for their clients as a matter of standard practice. Instead, they opt to provide guidance and possible documentation templates that the client company can use to conduct the investigation internally. Employers must have an alternative plan in place to respond to a complaint promptly and conduct a thorough and impartial investigation. Will you be ready when a complaint is made?

When you are looking for resource that is immediately available, easy-to-use and affordable to conduct your workplace investigations………….GoInvestiPro.com!

Top 10 Investigation Challenges – Part 7; Planes, Trains and Automobiles. What really happens during business travel?

Some employees travel regularly as part of their primary job functions. When this is the case, they tend to conduct themselves in one of three ways:

  1. They learn the art of socializing with colleagues and customers in a friendly manner while maintaining a professional distance.
  2. They try to get noticed in the crown by becoming “best friends” with everyone in the room. Oversharing is a noticeable characteristic of this circumstance.
  3. They develop a feeling of entitlement and superiority, as if they are in another class above other employees and sometimes even customers. They often act as though company rules and policies do not apply to them.

It’s quite obvious how two of the three of these can open doors to harassment and discrimination policy violations.

On the other hand, there may be employees in your company that travel infrequently for meetings, training or conventions. They may only travel once or twice during their employment with your company. In most cases, this does not create a problem. However, an employee who has a problem following rules and policies while in the workplace, will be more likely to step outside of the rules when given more freedom such as during business travel.

Here are a few tips on how to get ahead of potential business travel related problems before they happen.

  • Provide employees with travel rules and policies that apply as soon as you are aware of the scheduled trip.
  • Meet with the employee prior to travel to answer any questions about the process, such as hours or mileage that may need to be tracked, and if they are required to share rooms or purchase a separate room.
  • Ask the employee if they have any special concerns about the trip that need to be addressed before travel commences. This may include people the employee is traveling with, where they are staying, or how to handle a business dinner or social function where alcohol is being served.
  • Notify the employee that he or she is not required to take part in any event that makes them feel uncomfortable or does not feel safe, such as getting in the car with a colleague or customer who is intoxicated.
  • Be aware of behavioral and/or performance changes in the employee while traveling or upon return.
  • When the employee returns, don’t just assume everything went well. Follow up with the employee in person to ensure there were no problems during the trip.

And, as always, if there is a complaint and you need to investigate…GoInvestiPro.com!

  

 

Top 10 Investigation Challenges – Part 6; Hygiene, Bodily Functions and other Uncomfortable Conversations.

Every manager and HR Representative has to deal with this type of complaint at some point during their career. As a matter of fact, these complaints are reported in the work place much more often than you might imagine. There are your everyday complaints, “Danny comes in to work smelling like garlic and has such bad gas that I need you to move my desk away from his.” Some complaints are less frequent such as, “Sally is taking bathroom breaks a few times every hour and it is interrupting the work flow”. And then, the doozies like, “Frank’s body odor is so bad that I have to run when I see him coming to avoid him approaching me. I can’t work with that guy!”  Yes, they even get much worse than that, but we will leave the restroom complaints for another time.

You may be asking, “What does this have to do with investigations?” The simple answer is, everything. Continue reading

Top 10 Investigation Challenges – Part 5; The investigation, when your witness won’t speak.

There is such as thing as constructive silence….and then there is just silence. Unfortunately some employees believe that they are protecting themselves, or their co-workers, if they simply refuse to answer any questions in a workplace investigation. But the law does not allow employers to simply state that they could not proceed with an investigation because the witness(es) would not cooperate. So, it’s time to put on your hat as a “people manager” and take down the wall of silence.

As with any employee meeting, there needs to be a balance between taking a hard line and acting with compassion and respect. Continue reading

Top 10 Investigation Challenges, Part 4; How to Handle an Anonymous Complaint.

While conducting harassment investigation training, I have been asked many times, “Are we required to investigate if we receive an anonymous letter or email reporting possible harassment?” The real conundrum is whether an email or voicemail meets the definition of a complaint if  there is no identifiable complainant.   Still, I would advise against putting it in a drawer (or the round file) and forgetting about it. As we discussed in Part 3 (Five Questions to Determine if an Investigation is Required)  an employer is required to perform an investigation anytime it is determined that harassment may be happening within the company. Continue reading

Top 10 Investigation Challenges – Part 3; Ask these five questions to determine if an investigation is required.

In the business world, nothing ever seems to be black and white. Instead, the daily grind comes in many shades of gray (way more than 50!).  This too applies when a complaint is received by an employee, leaving the manager or HR representative to determine credibility of the claim and decide whether an investigation is required.

Although workplace investigations most often are thought of in regard to sexual harassment and other offensive conduct within the workplace, an investigation may be warranted and useful in the workplace even if the reported behavior does meet the legal definitions of harassment, but instead may violate company policy or standards.  Under federal law, failure to investigate and act on a complaint of discriminatory comments, improper verbal or physical contact, or even what may seem to be a few isolated jokes, may quickly develop into a harassment claim and an investigation is often required.

To determine if an investigation is warranted, ask the following 5 questions: Continue reading

Top 10 Investigation Challenges – Part 2; Confidentiality – The promise to keep things quiet.

Can you promise an employee that what they tell you about another employee will remain confidential?

Can you ask an employee to keep the information discussed in a workplace investigation interview confidential?

The answer to both questions is maybe, but not completely. Clear as mud? Many things in business and human resources are, but let’s try to make some sense of it.

In Part 1 of this series, When an employee says… I don’t want you to do anything, I just thought you should know, we discussed the reasons why a company may need to conduct an investigation, even though the employee states they do not want anything done. But even when an investigation is required, that does not automatically mean that all of the information shared with you by the employee can or should be shared with anyone else. Any time, and at the time, that an employee says that they want information kept confidential, they should be informed of the following:

  1. Although I can promise you that I will keep the information you share as confidential as possible, if the information includes potential sexual harassment, discrimination, bullying, safety, or a serious policy violation, I am legally obligated to share the information with those who need to be involved in order to take appropriate action.
  2. What I can promise you is that I will inform you of who will be told, and what information will be shared, before I pass on the information.
  3. If an investigation is needed, the employee accused of wrong doing and any potential witnesses will only be told the minimum amount of information needed to conduct a fair and impartial investigation. The statements and investigation files will not be shared with investigation participants.
  4. And remember, there are whistleblower and retaliation protections in place to protect you and your job. I will follow-up with you periodically to ensure that no retaliation is taking place.

If the information the employee shares with you is simply to obtain advice on how to respond in certain situations to peers or supervisors regarding daily work issues, then the information can generally be kept confidential. However, the employee should be encouraged to talk to you again if the advice does not rectify the situation.

Over the last few years, the National Labor Relations Board (NLRB) has broadened the scope of employee rights to concerted activity to include the right to discuss openly with co-workers the information discussed in a workplace investigation. This action, and a list of lawsuits ruled in their favor, has created liability for employers who have a policy of or ask an employee not to discuss the investigation with other employees. Attorneys have varying opinions on whether you can ask employees to refrain from sharing details only until the investigation has concluded. We advise consulting with your labor attorney before requesting or requiring confidentiality from an employee. And it is a good idea to review your handbook to ensure no confidentiality clauses are included in your investigation policy.

A good article on the NLRB’s latest case against investigation confidentiality, and policies for such, violating employee protections of concerted activity can be found at http://www.hrmorning.com/latest-thing-you-cant-ask-employees-to-do-ruling/.

Top 10 Investigation Challenges – Part 1 When an employee says…I don’t want you to do anything, I just thought you should know.

If you ask any HR professional who has been responsible for employee relations, the majority of them will tell you they have had a conversation that started with this phrase. (I don’t want you to do anything, I just thought you should know). Your response is very important, but can go one of two ways. Either you stop the employee there and inform him/her of your obligations under the law to share the information with involved parties if the claim is related to harassment, discrimination or the safety of one or more employees. Or, you can ask the employee to discuss the impact that the incident(s) are having on their job, and what they think would need to change in order to feel more comfortable. Let’s examine both options a little more closely.

The downside to telling the employee that you cannot guarantee confidentiality is that the employee may then choose not to share the details of the incident(s).  Harassment laws state that the employer is liable if they knew or should have known what was going on. Having the employee leave without providing you with any information may create liability for the company. The upside is, that if the employee truly believes there is wrongdoing, they will often continue talking with you anyway. This method will often weed out those who are only coming to HR or a Senior Manager, in order to cause trouble for a supervisor or co-worker. You can often console an employee by providing that you will only share information with those who have a business need to know, that you will share only limited, general information, and that you will keep them informed of the process and who will be informed before you share the information with anyone. And finally, this is a great point to inform the employee of their rights and protections under retaliation laws.

The second option generally works well when the employee doesn’t seem especially upset by what has happened, or in the case of a pattern developing, rather than a specific incident. In this case you can encourage the employee to share what difficulties he/she is experiencing in their job. For example, the employee may state that another employee is constantly sharing what they are doing in their personal life. The employee may feel this is distracting from their work, taking time out of their day, or making them feel uncomfortable with the subject matter. You can then provide helpful assistance the employee can use to make the behavior stop. For example, you can suggest that they pull the employee aside from other employees and share that they feel that they are not able to get the proper amount of work done and are uncomfortable with all of the personal conversation during work hours. The employee can ask that he or she be able to have some quiet to be able to appropriately focus on their work. If the employee agrees to try to correct the problem themselves, that is perfectly acceptable. Just be sure to remind the employee that if this solution doesn’t work, you will need more information, and set a follow-up meeting to ensure the solution is working, and document you conversation and follow-up plan. Since there are no details of who or when, this should not be shared with managers, or any other party at this time.

With either of these methods, you should be prepared to change to the other method mid conversation as the conversation progresses. And remember, it is important to let the employee do most of the talking. Your role is to listen and be impartial, while obtaining all the information you may need if the situation progresses.

 

 

I mentioned confidentiality a bit earlier. We’ll get into more detail in Part 2.