Workplace investigations are always challenging, but remote workers create an interesting new challenge. But one that can be overcome.Continue reading
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.
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.
- There is no time to spend on research and implementation of anything that is not a daily process.
- Although investigations are costly and time consuming, most HR departments do not have a budget set aside for employee relations.
- The limited training resources available on investigations don’t provide information that transfers over well to actually conducting the investigation.
- 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.
Don’t have a streamlined, compliant investigation process in place? Get a little help from InvestiPro.
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:
- 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.
- If you have an Employer Professional Liability policy (EPL), chances are it requires you to contact the carrier prior to submitting the position statement.
- 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.
- 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.
- 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.
- 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.
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?
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.
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.
- 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.
- Make light of the situation so that everyone knows it is not serious and just an
attempt at election humor.
- 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.
Not only did Steve Boese, Conference Chairman, vote for InvestiPro as the Next Great HR Technology Company last week at the HR Technology Conference in Chicago, he included us in his Top 5 Moments at the Conference. https://t.co/yIloNDhS2O
Discovering the Next Great HR Technology Company
While HR Tech, and plenty of other shows, have done startup tech company demonstrations and competitions in the past, this year at HR Tech we decided to introduce a new spin on the concept. Borrowing from the format of the popular TV series “The Voice”, we paired up and coming HR technology companies with their own expert ‘coaches’, (Trish McFarlane, Ben Eubanks, Madeline Laurano, Kyle Lagunas), who not only ‘found’ and nominated these companies for participation in the event, but also collaborated and coached them on their presentations and delivery for the event itself.
At the session, ably hosted by Jason Averbook, each of the 8 participating companies, (InvestiPro, ClickBoarding, Chemistry Group, LifeWorks, Clinch, HighGround, RolePoint, and Qwalify), had 5 minutes to talk about their solution, and show it off a little, followed by about 2 minutes to answer a question or two from one of our expert coaches. After 8 fast-paced demonstrations and discussions, the audience got to vote for who they thought would be ‘The Next Great Technology Company’ – a vote won by LifeWorks in what was an extremely tight race.
Whew….the investigation is over and now we can all get back to work, right? Often it is not that easy. In most companies, employees are well aware of what goes on in the workplace. Even in the largest companies, employees talk about what is happening in their department or building. Pretending that an investigation never happened will cause employees to wonder. And more often than not, the imagination is worse than the truth. Addressing the situation and communicating the expectations for moving forward can help put an end to the distractions that could otherwise go on for weeks. Here are a few tips to help everyone in the company return to work post-investigation.
Within a day or two:
- Set a meeting or plan to address the situation with all staff within a few days or a week after the conclusion of the investigation.
- Confirm the fact that there was an investigation, and that appropriate steps have been taken and the matter has been resolved.
- Inform employees that although you can understand their curiosity and concern, the company will show respect for all parties involved by putting this behind them and not discussing it any further. Convey the expectation that employees will do the same and gossip, negative remarks and discussions of personal information will not be tolerated during work hours.
- Provide means by which employees can share their work related concerns by meeting with their manager or Human Resources.
- And close by reminding employees of resources that are available to them if they need to talk this through via the company Employee Assistance Program (EAP) or counseling benefits offered through their health plan or local social services.
Three to four weeks later:
- Post-investigation is the right time to review the company policy and make any revisions that are needed to promote a zero tolerance workplace and comply with the laws. Managers who were involved in the investigation should be allowed to provide insight, and the final revision should be reviewed by an attorney.
- Provide all staff training, review the laws, distribute and review the company policy, and have each employee sign an acknowledgement that they attended training and understand their rights and responsibilities. Managers should attend this meeting to show that they are united in the enforcement of the zero tolerance policy.
- At the end of the meeting, either as one group or after breaking into separate departments, allow for open discussion on how the laws and the policy apply in your workplace. Provide examples of courteous respectful behaviors, and those that are not allowed (being careful not to use examples that are too close to the recent investigation). And ask employees for suggestions on how to promote better behaviors within the workplace.
- Schedule and conduct Supervisor/Manager unlawful harassment training, even if it was conducted in the recent past, to remind the management team how important this is to the company.
Three months later:
During an investigation employees may take sides, restrict communication, and become uptight and leery of those they work with. If relationships are left to rebuild on their own, it can impact business for a period of months or more. Employers must take an active role in helping employees to rebuild trust in their co-workers and managers, so they can feel comfortable again and even enjoy their daily work. It is usually most effective to begin the rebuilding process within three to four months of an investigation, allowing for a cooling off period when raw emotions can heal.
- A good first step is to host a company lunch or barbecue. During this time, implement games or activities that promote teamwork, positive reinforcements and laughter. When employees laugh together, they let their guard down.
- Institute a spot award program to recognize teamwork, kind/respectful behaviors, and providing a helpful hand to others.
- Spend time, either one-on-one or in groups, talking about growth and learning opportunities in the company to increase engagement.
- And finally, actively manage employees by using your performance review and progressive discipline processes to recognize and build on good behaviors, and control the wrong behaviors BEFORE they get out of hand.
I hope this information is helpful to you. But remember, if you need to investigate…….GoInvestiPro.com! Simplifying the way employers conduct investigations.
Can you tell we’re excited? If you are attending the California HR Conference next week in Long Beach, stop by the InvestiPro booth to say hello and receive a 20% discount off your first workplace investigation with InvestiPro. Let us scan your badge and receive a high quality magnifying glass, the sign of a true investigator.
Are you unable to attend? Don’t worry, InvestiPro will be posting information throughout the conference to help you enjoy the experience at a distance.
Need to investigate…….GoInvestiPro.com! Simplifying the way employers conduct investigations.
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!