Workplace investigations are always challenging, but remote workers create an interesting new challenge. But one that can be overcome.Continue reading
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.
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.
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 hr 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.
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.
If you haven’t already read “The 5 Worst Reasons for Not Conducting HR Investigations”, you may want to start there. Sure, it’s fun to get a chuckle over other people’s excuses, until we realize how often investigations are being avoided. But investigations don’t have to be scary, chaotic or disruptive. As a 26-year HR Professional with a focus on employee relations, culture building and investigations, I can tell you from experience there are some positive outcomes in the workplace from employee investigations done right. So, I will share with you the Top 5, not from reading it somewhere, but from experience. It may surprise you to see that liability protections, financial savings and a reduction in turnover did not even make the top 5. That’s because when you start doing investigations well, those things will fix themselves.
Top 5 reasons to conduct employee investigations
- Managers become better managers when they know that there are standardized business processes in place that are followed regularly, and can make managing difficult employees easier.
- Employees who know that there is a respectful process in place for resolving workplace conflict, know what that process looks like, AND have seen it be used frequently to resolve issues with a positive outcome, are more engaged in their work.
- Complainers (or dramatizers as I like to call them) will begin to think twice when they come in to complain about every little thing when they know that HR will dig in to the details and they could be held accountable for spreading non-truths.
- When employees are trained on how to communicate better between themselves, and experience what a civil and respectful workplace looks like, they are more likely to address problems with each other first. And bystanders are more likely to get involved.
- When employees are confident that issues brought forward in good faith will be respectfully handled, without retaliation, unacceptable behaviors are brought forth much earlier allowing for simpler resolution with less impact to the workforce.
If you have questions about how this may work, situations that you think could have been resolved better and want to know how, or have seen a civil, respectful and consistent process not work, please comment and let me know. Let’s try to find a resolution together.
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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….
- the owners tell us not to because they don’t want the story to get out and upset the workforce.
- it’s open enrollment. We have to prioritize and getting employees enrolled in benefits is more important.
- 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.
- 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.
- 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.
Want to simplify your workplace investigations? Learn more at www.investipro.com.
When a company is in the news for paying out at large harassment discrimination settlement, the first thought is that they did not conduct an appropriate investigation. But that is not always the case. Last week the EEOC ended an investigation into claims of harassment by employees in two Ford facilities in the Chicago area. (https://www.eeoc.gov/eeoc/newsroom/release/8-15-17.cfm) Based on the findings, Ford agreed to settle the claim for $10.125M in monetary relief to multiple female and African-American employees who had claimed sexual and racial harassment. Ford chose to voluntarily resolve this issue with the EEOC, without admission of liability, to avoid an extended dispute.
A spokesperson for Ford provided a statement that, “Ford does not tolerate harassment or discrimination of any kind; we are fully committed to a zero-tolerance, harassment-free work environment at all facilities and to ensuring that Ford’s work environment is consistent with our policies in that regard. Ford conducted a thorough investigation and took appropriate action, including disciplinary action up to and including dismissal for individuals who violated the company’s anti-harassment policy.” As such, it appears that they met the legal requirements. So that may have you wondering what went wrong.
It is simply not enough to conduct an investigation once an employee or group of employees comes to HR and files an official complaint. A company must be able to prove that their managers are trained regularly on what behaviors to look and listen for, in order to stop the behaviors before they become systemic or egregious. And take prompt action to investigate immediately at the first sign of a problem. It is equally important to ensure appropriate follow up post investigation to ensure the improper behaviors have stopped and no retaliation is taking place.
In the Ford Motors case, there was reasonable evidence that employees and managers were aware of the behaviors which were claimed to meet the definition of harassment, and that they did not address the issue in a timely manner. Their excuse was that no official complaint was made, even though there was open discussion by employees in the workplace, so no investigation was required. This resulted in the improper conduct continuing, and affecting more employees, until an actual complaint was filed. By the time a formal investigation was conducted, the EEOC found that the company had retaliated against employees who complained about the harassment or discrimination.
In addition to the $10 million to be distributed among the claimants, Ford will be under the scrutiny of the EEOC for a period of five years and will be required to report any employee complaints of harassment and/or related discrimination. They must also provide documentation that they are continuing to disseminate their anti-harassment and anti-discrimination policies and procedures to employees and new hires. And provide proof that they are constantly monitoring their workforce for issues of alleged sexual or racial harassment and related discrimination, to include monitoring by managers.
To prevent this from happening to your company, take the following steps:
Institute a walking management policy. This type of policy requires all supervisory employees to spend a required amount of time each day observing and interacting with their workforce, and noting conversations and behaviors that may signal problems.
Train supervisory, HR and executive employees on what signs to watch for. For example, the absence of conversation when managers walk in the room, changes in absentee patterns and physical rigidity or avoidance when interaction with a specific employee or employees are required.
When it is noticed that an employee is acting differently, start a conversation. Even if it only includes small talk to begin with, it will increase the comfort level of the employee in coming forward with a complaint.
Prove that the company/HR open door policy is effective by making it a priority to stop what you are doing to allow employees to come in and talk. It can be difficult for an employee to come forward, and if they are shut down on the first attempt they will generally not try again. Then follow up on the information you receive, even if there is no formal action to be taken.
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