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.

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.

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The 5 Worst Reasons for Not Conducting HR Investigations.

If you ask a CEO or HR professional if they conduct HR investigations, they will say “of course”. But when you dig in a bit further, all too often there is an “unless” statement. Here are some of the worst reasons that I have heard so far this year:

Of course we do investigations, unless….

 

  1. the owners tell us not to because they don’t want the story to get out and upset the workforce.

 

  1. it’s open enrollment. We have to prioritize and getting employees enrolled in benefits is more important.

 

  1. the complaint is about someone in the sales department. The culture with them is different, and the Director prefers to handle issues in his department himself.

 

  1. the HR manager is out. There is no one else trained to do investigations, so if she is out for more than a week, by the time she returns it is generally too late.

 

  1. it’s a situation that we think will open a whole can of worms. Let’s face it, there are some people who will not change their behavior and the company won’t discipline them, so it’s better to just leave it alone.

 

Conducting a thorough and unbiased workplace investigation is the single best way to protect the company from liability. Although some employers are still fearful that an investigation will increase potential liability, the statics show this to be untrue.

 

In most cases, employees know what is happening in the workplace long before management or HR. Not acting is a clear message to employees that that rules don’t apply to everyone, and civility in the workplace is not a company priority.

 

Send employees the right message by clearly communicating your investigation process to reduce fear and ensure accountability across the entire organization. Then, investigate every time a situation of improper behavior comes to light to earn trust within your workforce.

 

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Workplace Investigations Improve Company Culture. Really?

Over the last few months, I have been speaking at regional HR meetings on the topic of “Using Workplace Investigations to Drive Employee Engagement and Improve Company Culture. And although I hear some skepticism on how this could be possible, attendance has been at very high levels. When talking to the attendees, I am hearing that HR professionals are very interested in finding a better way to handle sticky and serious employee relations issues. But there are numerous reasons why we are still doing the same old thing.

  1. There is no time to spend on research and implementation of anything that is not a daily process.
  2. Although investigations are costly and time consuming, most HR departments do not have a budget set aside for employee relations.
  3. The limited training resources available on investigations don’t provide information that transfers over well to actually conducting the investigation.
  4. Owners and/or executives are under the impression that avoiding investigations creates less liability than exposing possible problems in the workplace.

Now consider this. What if a workplace investigation was simply another standard business process that HR used to talk with employees and gather information, in order to find out what is really happening in their organization so that improvements can be made? When you think about it, you are likely doing this to resolve issues that arise and improve communications and actions between employees anyway.

Recent surveys show that employees often don’t bring forth issues of discrimination, harassment and bullying because they either don’t believe anything will be done about it if they do, or that they will get blamed and be treated poorly or lose their job. HR must clearly communicate a new initiative to investigate all workplace challenges in the same manner, in order to create a great place to work for everyone. And then stand by that promise. The good news is, they don’t even have to be called investigations. Maybe the “Better Workday Project” would fit well into your company culture. When employees start to see a positive impact, they will get on board.

There are several benefits that come from using the same “investigation” process for all forms of workplace conflict.

  • Employees get comfortable with the process and open participation increases.
  • Employees begin to see that brining issues to HR really does lead to resolution and a better place to work.
  • The relationship between managers and HR becomes more interactive.
  • Studies show that employees that trust upper management and HR, and feel they are treated fairly, are more productive and engaged with their peers.
  • When the serious accusations arise, investigations are more productive, and employees are less fearful. After all, they usually know what is happening in the workforce before management or HR.
  • It is much easier to get owners and executives on board for the serious investigations, when they have seen improvement by investigating the smaller employer relations matters.

One step forward:

The next time an employee relations issue arises, take the time before you act to plan out a means to deal with the issue that implements the standard steps of an investigation. Then work through the steps methodically to see how this application could reduce time spent and make the process more calm and respectful.

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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

5 Common Misnomers Re: Employer Retaliation

We all know that the laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC) make it illegal to fire, demote, harass, or otherwise retaliate against either job applicants or employees based upon the individual doing any of the following:

  • filing a charge of discrimination,
  • complaining to their employer about discrimination on the job, or
  • participating in an employment discrimination proceeding, such as an investigation or a lawsuit.

In addition, most state anti-retaliation laws provide remedies for any discrimination or “adverse employment action.” But there is still a lot of misunderstanding about the extent of the definition of retaliation. As a rule of thumb, if the action could look like retaliation from the outside, stop and think through the entire situation before taking action. Otherwise, you might find yourself having to defend your actions.

The following are the 5 most common misunderstandings to watch out for:

  1. It’s not retaliation if the employee quits.

It is not uncommon for an individual to resign after an uncomfortable conflict or investigation. In some cases, this result is for the better for both the individual and the company. However, employers and managers need to ensure that they did not deviate from normal practices in order to urge the employee to resign. When courts conclude that the employer was trying to get the worker to quit, or made working conditions intolerable, then they declare a “constructive discharge,” and allow the victim full remedies after quitting. Protection: Establish a process of getting back to work after a conflict or investigation that ensures the affected employee is treated fairly and appropriately.  

  1. We’re going in to slow season, so they can’t prove retaliation if we reduce her hours.

We hear of this often, especially in seasonal industries where a reduction in hours is common at certain times during the year. However, this does not automatically provide protection for the employer. For example, an employee complains that her supervisor is making lewd gestures at her and she is fearful about walking to her car at the end of her shift. An investigation results in a reprimand to the Supervisor. The Supervisor is a high performer and the company decides not to terminate. At the end of the busy season, the Supervisor is asked to provide a list of those employees who he suggests should have their hours reduced or be laid off, and the complainant is at the top of the list. The Supervisor says she is a bit slow and not friendly to guests. On the surface this seems like a legitimate reason to reduce hours. But when customer surveys are reviewed, she consistently has high scores. Yes, this is likely retaliation. Protection:  Review recent actions with any employees that are subject to adverse actions, even when it is a regular occurrence such as seasonal layoffs, to ensure the basis for the action is sound.

  1. As long as I don’t tell HR about the complaint, I can just move the employee to another department and the problem is solved.

At company A, employees submit their time-off requests to their department manager who generally approves the time as first come first served, but also considers the reason for the time off request. Jose has requested time off on several occasions with the reason of attending family matters such as a church services or funerals. After a couple of his requests being denied, Jose complained to his manager that he and a couple of other Hispanic employees are frustrated that their time-off requests seem to be denied more often the other non-Hispanic employees. The manager comments that Hispanics have so much family that they can’t expect to get all of their requests approved and maybe they should stop having kids. Two weeks later, a new employee with a specific skill set is moved into their department, and the Manager sees this a great opportunity to move Jose out of the department into a position that is on a less desirable shift. This is not an easy answer. It’s retaliation. Protection: HR should have a policy in place to talk with each employee that is being moved to ensure they understand why is it a company decision. Generally, if the employee believes that it is due to other reasons, such as retaliation, they will bring it up at this time. 

  1. The victim is protected, but the complainant is a gossip who always stirs up drama, so we can terminate her without it being retaliation.

We expect and require employees to participate in a workplace investigation when they have information that could be useful in determining the outcome of the case.  Often, the organization would not be aware of problems in the workplace without employees coming forward. However, most of us have dealt with the employee who feels it is always her job to report everything…..personal matters, gossip, what the rumor mill says, you know the type. But a complaint is a complaint, and the complainant has protection rights the same as anyone involved in the incident. Often supervisors and managers are not aware of these rights and by changing the way they act toward this employee, they could be guilty of retaliation. Protection: Train all supervisors, managers, and executives about the potential liability from retaliation. And remind everyone involved in a complaint or investigation of their rights and responsibilities every time. 

  1. An employee who has complained can be terminated for violating company policy as long as it is unrelated to the topic of the complaint.

Although employees cannot be terminated for participating in protected activity, this only applies as long as their behavior is lawful and does not violate the company code of the conduct. That being said, employers must look at the severity of the action, and the reason for the action, in order to determine if the action could be construed as retaliation. For example, Sherry has a physical confrontation with Ally. After the incident, Sherry notifies HR and an investigation ensues. Ally is terminated for hitting Sherry, and although the company feels Sherry may have provoked the incident, there is no proof and Sherry is not disciplined. The next day, Sherry’s manager finds that she has been using her company email for personal business in violation of company policy. This is reported to HR and Sherry is terminated. Sherry report this matter to the EEOC and claims that others use their company email often, including her manager, and are not reprimanded. In addition, Sherry claims that the personal email use was to set up a security service to walk her to her car after work as she was frightened that Ally might return to do her harm. The outcome, Sherry got her job back with back pay and penalties. Protection: Before using violation of policy as a reason for terminating an employee, ensure that the policy is consistently upheld and the penalty is appropriate.

Sign up for the HR Investigator’s Blog to stay on top of the laws and best practices and ensure liability protection. And when it is time to investigate, www.GoinvestiPro.com – Simplifying the way employers conduct investigations.

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.