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.

It’s time for HR to take a Stand #NoRetaliation.

In this time of daily reports of long term patterns of sexual harassment in the workplace, I have spoken to many HR professionals who feel they are walking a tightrope. On one hand, they are in support of employees bringing forth harassment issues to be dealt with appropriately. And on the other, having several employees bringing forth complaints all at once is not good for the company culture or reputation. Not to mention the amount of time and effort it takes to conduct multiple workplace investigations all at the same time. So, most are remaining silent. They’re not supporting the #MeToo groups, nor are they initiating talks with managers and executives about bringing open discussion out to the workforce. As a professional who worked directly with employee relations and investigations for a couple of decades, it is my opinion that to make a real impact, not just in the media but inside our organizations large and small, it is time for HR to support protections for those who come forward in good faith to disbar their fears of reporting these incidents. #NoRetaliation.

As we all know, until an issue has been investigated, we really do not know what happened or whether a law or even a conduct violation has been committed. Often when conducting an investigation, the doors to frank conversations are opened, and issues can be resolved by just allowing an offended employee to be heard. And sometimes the actions are severe enough to warrant termination. But we can’t investigate until we know there are problems. And we won’t know there are problems until employees feel safe enough to talk about the issues. And employees won’t feel safe until HR takes a stand that any employee bringing up these issues or incidents in good faith will NOT face poor treatment, reduced promotional opportunities or lose their job. #NoRetaliation.

For many years, both women and men who have been subject to harassment on the job, have kept quiet. They have continued to work, in the job where the offense happened or another job. But the impact of the harassment does not go away. It festers. It impacts their daily work life and their ability to engage with their co-workers and managers. And when the employee does decide to come forward, it has historically been by filing a lawsuit. But that is beginning to change. As we have heard in the news, even just this week with the news of the firing of Matt Lauer of the Today show, employees are beginning got feel empowered to come forward, simply asking that the company take the right steps and hold these people accountable for their actions. The victimized employees generally keep the incident to themselves until something triggers them to come forward. HR can be that trigger.  HR needs to be that trigger in order to begin to see change. #NoRetaliation.

As the CEO of a company that provides an online platform for workplace investigations, I spend the majority of my work day talking with HR professionals about Sexual Harassment claims, reports, investigations and prevention methods. I am constantly surprised by the number of HR professionals that state there has never been any form of harassment in their workplace. Or that their company has never had the need to conduct an investigation. Sometimes these are companies with 100 employees and sometimes they are companies with several thousand employees. But recent statistics tell us that approximately 75% percent of women and 20 percent of men have experienced harassment on the job. And most incidents are never reported. Yes, some industries are more likely than others to have a high claim rate. But if you have employees, and you have no conversations with employees regarding potential harassment in the workplace, you are likely missing something. #No Retaliation.

You may be asking, “What can I do that will make a difference?” Join us in the movement for #NoRetaliation by taking the following steps:

Human Resources Professionals: Start spreading the word within your organization that you welcome open discussions about any potential harassment taking place. That employees at any level are encouraged to come forward and make a difference.  Work with your EAP to allow for private counseling or coaching on how to deal with past incidents. Put up posters, initiate a hotline or email reporting outlet, and add brief discussions into all staff meetings for a quick review of conduct expectations. Make clear statements about what harassment behaviors look like. Provide monthly discussion groups that brainstorm ways to prevent incorrect behaviors within the organization and allow for early intervention. And make it well know that you stand for #NoRetaliation.

Managers and Executives: Show in both your speech and actions that you support the company “Zero Tolerance for Harassment” policies and will hold people accountable for their actions. Partner with HR to actively develop a means of open communication that fits within your company culture. Provide opportunities for your direct reports to talk about what is and is not working in the workplace. Take action early when made aware of any misconduct. And make it well know that you stand for #NoRetaliation.

Employee: You must be willing to bring issues to management in order to stop harassing behaviors. This includes observances of others being harassed. You can encourage others to do the same. Remember, if you or another employee is being harassed, chances are that you are not the first or last. It is time take back our workplace and create a better work day for everyone. #No Retaliation.

I appreciate all of the victims out there that have come forward.

I appreciate all of the companies that have and are standing up to protect their workers from harassment.

I appreciate those who have admitted to their past poor conduct, are apologizing and getting help.

And I appreciate you for choosing to now be a part of the solution moving forward by encouraging open communication and reporting of harassment in the workplace with #NoRetaliation!

When HR Does Something Good “Just Because”.

In work, as in life, it is often the little things that matter. Let’s face it, life isn’t perfect. And although we all try not to bring our personal lives into the workplace, there are times when it just can’t be helped. As HR professionals, we are often aware of employee’s personal situations when no one else in the company knows. For privacy reasons, we are required to keep it that way. But it’s important to remember that while keeping the workplace fair and compliant, we can also help keep the workplace human and do something good.Continue reading

Your Employee Called the EEOC. Now what?

Any employee who feels he/she has been discriminated against or harassed can file a complaint against her employer with the Federal Equal Employment Opportunity Commission (EEOC) or State Fair Employment Office.  Whether or not the complaint has merit, the employer must then spend time, effort, and often money to defend their position. Knowing what steps to take can help an employer show cooperation, while positioning themselves for defense if needed.

Once the EEOC receives a complaint, the employer will be notified by letter within 10 days. The letter does not imply findings against the employer. Rather, it is the first step the EEOC will use to determine whether there is reasonable cause to believe a violation has occurred. The letter will request a “Statement of Position” from the employer. This document is where the employer tells their side of the story. However, the information provided may be used for or against you. Therefore, there are three things to consider before submitting your position statement:

  1. If you have an attorney, it may be wise to notify him or her of the complaint and ask for a review of the position statement prior to sending it to the EEOC.
  2. If you have an Employer Professional Liability policy (EPL), chances are it requires you to contact the carrier prior to submitting the position statement.
  3. You must report only the facts. These facts will need to be verifiable, and opinion is not advised.

If you do not have or choose not to contact your attorney, I highly suggest reviewing the EEOC resource guide on effective position statements.

Next, the EEOC follows up with a formal Request for Information. The RFI may ask the employer to submit policies, the charging employee’s personnel files, the personnel files of other individuals and other relevant information, such as proof of training and contact information for potential witnesses. The EEOC may also request a visit to the workplace to view evidence and interview potential witnesses.  Although this can speed up the information gathering process, it can also be disruptive to the company and create an over-exposure of facts.  If the EEOC does not come on-site, they will likely still contact employees who may have pertinent information or may be witnesses to the case. They have the right to do this with non-management employees without the employer’s knowledge or permission.

It is important to provide all information requested by the deadline provided. In the case of unforeseen circumstances that make it impossible to meet the submission date, an extension must be requested from the EEOC Investigator. Once submitted, the EEOC will review the information to determine whether the complaint merits further action. One or more of the following actions will then take place.

  1. A Dismissal and Notice of Rights will inform the employee that the EEOC has dismissed the case, yet she still has the right to file a lawsuit with the federal court within 90 days.
  2. A Letter of Determination will state that there is reasonable cause to believe that discrimination/harassment has occurred and invite the parties to join the agency in seeking to resolve the charge through an informal process known as conciliation.
  3. If conciliation fails, the EEOC has the authority to enforce violations of its statutes by filing a lawsuit in federal court on behalf of the employee or issuing the employee a Notice of Right to Sue, and she may file a lawsuit in federal court within 90 days.

Although this process can be a time burden, preparing ahead by conducting and documenting prompt, thorough and impartial investigations can put a quick end to the fact-finding process, and limit liability exposure. InvestiPro can help. See our demo at www.goinvestiPro.com.

 

 

How Do You “Deal With It”?

In the February edition of the SHRM HR Magazine, (Yes, I know it’s March but I am a bit behind on my reading. Aren’t we all?), I read an article about dealing with difficult employees that I found to be quite interesting. I know that this topic isn’t new, but I liked the fact that they included stories by HR people who attained positive results by changing the way they interacted with and thought of the difficult employee. Let’s be honest here, no matter how much we wish for problem employees to change, nothing will change until we dig into the reasons why they act the way they do. In the article, the HR representatives took the time to talk to the difficult employees, respectfully and honestly, in order to get to the core of the problem. And then they took it one step further by working with the employee to find a way to make things better. Sometimes the only way to make things better is to find a way to help the employee move on, but this doesn’t happen as often as you might think. In most instances, once the difficult employee has been heard, they become much easier to deal with.

This same approach can be used in workplace investigations. When the investigator takes on the problem with the attitude that they will get to the core of the issue, and find a resolution that best works for everyone, the investigation itself becomes a much calmer process. As a general rule, the best way to diffuse an irate person is the more upset and loud they get, the quieter and more calm you remain.

The key here is wrapped up in the last section of the article. Stay calm and show respect. Remember, employees have a choice in their actions. And sometimes those actions result in discipline. When administering that discipline, showing respect for the employee can diffuse an otherwise combative situation and leave a dignified way out for all parties.

This is a short article, but worth the read. How Do You Deal With Difficult Employees?

Will There Be Over 90,000 Discrimination Charges Filed In 2017?

The U.S. Equal Employment Opportunity Commission (EEOC) recently released the 2016 statistics for discrimination and harassment cases filed for the year, showing an increase for the second consecutive year. Discrimination charges were filed in 91,503 cases (29% being sex based claims).  The interesting point here is that the agency responded to over 585,000 calls and more than 160,000 inquiries in field offices. So how did the 745,000 complaints only turn onto 91,503 cases? Well, there were most certainly those complaints that did not meet the legal definition of discrimination or harassment. And then there were the ones that were dismissed due to the fact that the employer met the legal requirement of conducting a prompt and impartial investigation, and took appropriate action to ensure the improper behavior ceased. If one of your employees contacted the EEOC, would your company be one of the dismissed complaints or one of the over 90,000 per year that results in a legal claim?

Many employers still do not understand that when a complaint is received, conducting a proper investigation is your first and best defense. Historically over 50% of claims received by the EEOC are dismissed strictly on the basis of the employer having taken appropriate action.   Let’s face it, even if your company did not violate the law, the cost comes in proving that fact. Once the EEOC receives a complaint, if the employer did not investigate the situation properly, the claim progresses toward litigation. And litigation is very costly. Not just in fees, but in company morale, reputation and employee time. This is why you so often hear of companies settling the claims monetarily while insisting that they were not at fault.

In my blog post next week, I will review what happens once the EEOC receives a claim from an employee, and begin examining the process of an employer responding to a claim. We will look at the process when the employer conducted an investigation, and when they did not.

If you have specific points you would like covered or questions you would like answered, please add them in the comment session, and I will do my best to address them.

Complainant or Complainer? 5 ways to find out.

In every organization, there are those employees who are very comfortable coming into the HR office and sharing every detail of what is going on with the other employees. These are often referred to as “serial complainers” who revel in drama and like to make every incident or interaction seem bigger than it is. Although these employees can take up a lot of time, there are instances when they can be very helpful. Therefore, it is important to determine quickly if the complainer just wants to gossip, or is providing valuable information and feedback that the employer should know. I other words, is this a complainer or a complainant? Let’s look at the difference.Continue reading

DO POLITICAL ARGUMENTS = HOSTILE WORK ENVIRONMENT?

With the vote happening next week in a what may be the most contentious presidential election in U.S. history, HR and Managers need to closely monitor the temperature to make sure conversation do not elevate to the point of bullying or creating a hostile work environment.  According to an article published by SHRM, “Sixty percent of HR professionals said their employees are more vocal about their political opinions than in elections past—meaning workers are more frequently engaging in political discussions or even arguments.” Although this period is temporary, the long-lasting impact on employee relationships may be long lasting or even permanent.

Consider this:

There are 3 employees in the purchasing department, which are housed right next to the two employees in the Shipping and Receiving department. The S&R employees (we’ll call them Bob and Sheila) are very busy in the morning and afternoon, but not as busy mid-day. Both Bob and Sheila back the same candidate, and much of their downtime is spent sharing campaign rhetoric, talking over their cubicles about how no person in their right mind would vote for the other candidate (whom they refer to “That #$@&*%!”). Although the Buyers have discussed among themselves that this makes them uncomfortable, they don’t want to confront Bob and Sheila as they are concerned the behavior will just escalate.

On the day before the election, the first Buyer arrives at work to find a cartoon sketch with the title of “Let’s keep “That #$@&*%!” out of office.” The drawing is a picture of a divided polling place where opposing parties are directed into a separate area where they step through the door to face a firing squad. When the other Buyers arrive, they agree that this is a bit scary and has gone too far. But instead of addressing Bob and Sheila, they decide as a team to ignore them, leave their work on their desks with notes, and avoid any direct contact until things quiet down.

When the manager arrives, and sees the cartoon, he has to decide what step to take next.

  1. Take down the cartoon and tell Bob and Sheila to knock it off, knowing that after the

election things will probably get back to normal.

  1. Make light of the situation so that everyone knows it is not serious and just an

attempt at election humor.

  1. Get HR involved and talk with everyone effected to determine the impact this has

had on the employees.

Remember, the law states that Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Does this rise to the level of a hostile work environment? Maybe, or maybe not.  The point is that employers do not know the impact these situations will have on employees unless they investigate.

An investigation does not need to be a long drawn out chaotic process. In fact, using investigations as a standard business process to determine what is happening in the workplace and taking action or changing processes and/or policies actually drives engagement. When employees know that everyone is held to a common set of rules and expectations, they feel respected and comfortable coming forward, before problems escalate. This allows for a simpler and more immediate resolution.

If you have any questions, or would like to chime in on how your company is working through this election period, I would love to hear your comments.