The Top 10 Investigation Challenges: Part 9, Getting the budget and buy-in from the Executive Team.

What if an employee informed you that he is constantly being asked to spend “personal time” with a manger from another department? You know you have to conduct an investigation, right? But before you begin, you must receive cooperation from your boss, be it the General Manager, VP of your division or the CEO. You also have to get a budget approved, which can be expensive depending on what resources you may need.  This may not sound like one of the more difficult investigation challenges since the law requires this investigation. But in reality, many executives are still of the thought that it is better to sweep these issues under the rug in order to avoid creating more liability by making a mountain out of a molehill. What they need from you is a little education and a few hard facts. Here are a couple Continue reading

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The Who, What, When, Where and Why of Workplace Investigations.

Almost 80% of the questions Googled pertaining to harassment and discrimination investigations begin with one of the five “W”s. When I saw this, I decided that a quick review might be in order. To cover all of the bases, we will also include the “How”. So let’s get right to the point.

  • What – A workplace investigation is an internal investigation into matters such as harassment, discrimination, theft, policy violation, safety incidents, etc. There are several laws that require employers to investigate specific situations, such as OSHA requiring a proper investigation into the reasons behind a workplace safety incident. However, the most common matters that require workplace investigations are related to discrimination including sexual and other harassment.
  • Why – Title VII of the Civil Rights Act of 1964 applies to all employers in the U.S. with 15 or more employees, and many state laws apply to employers with as few as 1 employee. These laws provide discrimination protections for individuals, of which sexual and other harassment is covered. Under these laws, employers are required to conduct a prompt and impartial workplace investigation when they become aware that harassment or discrimination may be taking place within their organization. Download your free list of state discrimination and harassment laws provided by InvestiPro.
  • When – Although not defined by law, the courts have repeatedly referred to a prompt investigation as one starting within three days of the time the employer received information that harassment or discrimination may be taking place. Again, it is important to note that state laws may require quicker action. For example, the California Department of Fair Employment and Housing recently amended their investigation requirements to state that the investigation must be timely. The committee who developed the new changes, which became effective April 1, 2016, suggested timely be defined as within two days. These laws do not require employers to conclude the investigation within those tight timeframes, but rather to begin the process and act diligently to resolve the matter as quickly and efficiently as possible.
  • Who – Often an HR Representative will be tasked with conducting a workplace investigation, but that should not be automatic. Investigations must be conducted by an individual who is familiar with the applicable employment laws and unbiased regarding the outcome of the investigation. For this reason, it is important to determine the best person to conduct an investigation depending on the circumstances being investigated and the parties involved. For example, it may be inappropriate to assign an early career HR Coordinator to conduct an investigation into claims relating to a manager and the CEO. As a best practice, the individual conducting the investigation should be at least equal in rank to those being investigated, or an outside resource may be used. It is important to note that if you choose an attorney to conduct the investigation, that attorney would likely not be allowed to represent the company if the claim goes to trial as they become a material witness to the case.  If an internal employee is conducting the investigation, which is often the best and most cost effective option, the individual should find a resource for ensuring they are comfortable with the investigation process and have the tools to effectively document the entire investigation.
  • Where – Investigations include a thorough interview with each of the involved parties and potential witnesses. In order to protect those being interviewed, it is a best practice to secure a private place to hold the interviews where the individuals will not be seen by everyone to be coming and going from the room, and the interviews cannot be heard from the outside. For small business or those with tight workspaces that do not allow much privacy, I advise employers to conduct interviews at an offsite location such as a conference room or a meeting room that can often be reserved in a library or community center.
  • How – Although investigations can be diverse in scope depending on the issues and number of employees involved, the steps taken to conduct an investigation are generally the same.
    • Report of incident
    • Investigation plan
    • Interviews
    • Assessment of facts
    • Determination and corrective action
    • Final Report

If you would like more information, or if you have a question or topic you would like to have addressed, please post them in the comment section I will get back to you promptly.  It’s important to remember you are not alone in this. When you need to investigate…… www.GoInvestiPro.com!

Political discussions may lead to discrimination in the workplace.

Immigration is a hot topic right now in the race toward the presidential election. I’m sure you have seen it all over social media, and everyone seems to have an opinion. While employees are allowed to have their own opinions on the matter, they must be restricted from bringing those opinions (and discussions) into the workplace. As with other types of discrimination, the definition of national origin discrimination is widening in scope. Employers must take affirmative steps to prevent this type of discrimination, and investigate any potential violations in the workplace.

The US Equal Employment Opportunity Commission (EEOC) recently proposed an update Continue reading

The EEOC finds that Harassment Training is not working.

As many HR professionals have known for some time, harassment training alone is not effective in changing behaviors in the workplace. Without enforcement by management, employees do not see the need to change the status quo. The EEOC Task Force findings shared yesterday at the 2016 Annual SHRM Conference confirmed this fact.  The following article is a clear statement to employers 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 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.

The 10 Most Common Complaint and Workplace Investigation Challenges

Welcome to the new series! Although there are many books, white papers, seminars, etc. on the topic of conducting workplace investigations, these generally are learning tools to tech the process and the legal requirements behind the investigation. However, as any seasoned HR professional will tell you, there are things that can only be learned through the sharing of experience. Those things that come up daily for business owners and HR professionals that they just aren’t prepared for. Over the next couple of weeks, this blog will provide some insight to what happens in “real business” with tips on how to plan for the unexpected complaints and subsequent investigations. Here’s a partial list of what we will be covering. Be sure to sign up for email delivery so you don’t miss a post.

Confidentiality; Please don’t tell my Manager I told you.

When an employee says, “I don’t want you to do anything, I just thought you should know”.

Hygiene, bodily functions and other uncomfortable conversations.

Determining if and when an investigation is required.

Anonymous notification of wrongdoing. Is your company liable?

Planes, trains and automobiles. What really happens during business travel.

The investigation; When your witness won’t speak.

There’s much more to come. Please feel free to send your questions, comments and suggested topics. The Investig8tr is on the case!

Sexual Harassment claims are so “yesterday’s news”!

When talking to friends, colleagues and business owners about this blog, many of them stated that they felt Sexual Harassment and other Discrimination claims are not as prevalent in the workplace as they used to be. With the required training and awareness, everyone is more careful. I hate to be negative, but in reality this just isn’t so. It only takes one bad seed to create a claim, and the company will be held liable. In actuality, the cases reported and settled out of court are increasing due to the fact that companies now know just how hard these cases are to defend. As an example, the EEOC Newsroom released information about a case that settled just this week. (http://www1.eeoc.gov/eeoc/newsroom/release/3-7-16.cfm). As is now the trend, this settlement was not only monetary, but also included requirements that the employer be monitored for a period of 4 years, including strict reporting, training and EEOC interviews with employees. Not a good spotlight to be under.

Now for the good news……Starting next week, I will begin providing practical “real-business” guidance on handling complaints and investigations that many of the books and resources available to business owners and HR professionals don’t cover. So be sure to sign up for email delivery of the blog posts and post your questions and comments so I can provide you with what you need most.

L8tr Investig8tr!
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This Really Happened; From bad to good.

Early in my HR career, I had one of those mornings. You know, the ones where you come in to work feeling optimistic. The sun is shining, the birds are singing and you just know it is going to be a great day. I was sitting at my desk taking my first sip of coffee, when one of the supervisors came in and said, “I think we have a problem”. After closing the door, the supervisor shared with me that a long-term employee had been showing up to work smelling like alcohol. For a while, he had assumed that the smell was carried over from the night before, but recent incidents had led him to believe that the employee may be drinking on the job. We did not have a reasonable suspicion drug testing policy in place, so the employee was called in and informed that he would be placed on suspension pending an investigation on the suspicion of alcohol use on the job. Within 48 hours we were able to determine, through witness observances and the presence of hidden alcohol bottles, that drinking on the job was occurring and the employee was terminated.

So where is the good you ask? Just under two months later, I received a letter in the mail from the employee. It wasn’t at all what I expected. The terminated employee was writing to thank me for addressing his problem. He stated that he knew others at work and at home were suspicious of his drinking, but did not confront him. He actually wrote that getting fired was the best thing that could have happened. It forced him to face his demons and get his life back on track, and he was looking forward to receiving his 2 month sobriety chip in a few days.

2 mo sobriety chip Lesson learned – We can’t pretend to know what others are going through or what they need. All we can do is act with good intention in a fair and respectful manner, and let the “chips” fall where they may.