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.

Take back your Summer with this special offer.

Summer is a busy time for HR people (like most of the year). As fellow HR professionals, we want you to enjoy the Summer.

Investipro can reduce your average time by 30% per investigation, while ensuring a consistent and compliant outcome.

Take advantage of your free upgrade to a Platinum Plan when you buy any InvestiPro Silver Plan.

The Platinum package offers:

– Unlimited Investigations
– Employee Discrimination and Harassment Training
– Email Access to a HR Investigator
– And Other Features

Simply mention the Silver to Platinum Upgrade offer and we will upgrade your account automatically after purchasing your Silver Plan. But don’t delay! This offer only lasts until June 30th.

Find the best plan for your company by contacting our sales team https://investipro.com/contact/.

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.

Don’t have a streamlined, compliant investigation process in place? Get a little help from InvestiPro.

www.investipro.com

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.

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.

Can Your Company Afford $22,500 in Lost Productivity…Per Employee?

Over the weekend, I came across an interesting article in the Harvard Business Review titled, Why We Fail to Report Sexual Harassment. The article addressed the fact that despite employer efforts to train staff and investigate complaints, the majority of employees affected by harassment, whether victims or bystanders, do not report the incidents.  That fact did not surprise me. Nor did the fact that 75% of the women they interviewed stated that they had at some point been sexually harassed at work. What did get my attention was this:

Researchers estimate that sexual harassment costs organizations $22,500 a year in lost productivity for each employee affected.”

Let’s look at an example. In this case, there is a company with corporate headquarters in the front half of the building and manufacturing in the back. At the entrance to a testing section in a back area that is predominantly male, there is a poster of a seductively posed woman, with very little clothing. Managers rarely have a need to enter this small area and have failed to notice or decided that this is not harmful. What they do not realize is that there is a female working in shipping that enters that area daily and she is quite uncomfortable. One day she asked the Lead in the testing area to take it down. He responded by laughing and making a loud comment that “The boys need a reason to come to work, but if you would give us a picture of you to look at, we’ll take the other one down.”

Based on the findings of the study, this employee is likely to experience stress each day when she needs to go into that room, become sick more often and miss work, lose interest in doing her job well in order to progress with the company, and spend additional time each day doing other things to keep her mind off of work. Yes, over a year that could easily amount to $22, 500 in lost productivity.

However, this is not where it stops. If this employee is experiencing that type of harassment, she will likely talk about it with 2-3 other employees who then are likely to feel uncomfortable as well. And then we need to consider the employee from Quality Control that goes into the work are daily. And the fill-in tester that works in the room at least once per week. And the Accounting Clerk that goes into that area to check serial numbers. That’s six additional employees – with a total productivity loss of $155,500 per year. And this does not take into account the cost of replacing these employees when they decide to leave.

When you look at the monetary effect of harassment in the workplace, it becomes very clear that companies need to take a more active role in preventing harassment from happening. Here are a few ideas.

  1. Make sure managers are walking around and interacting with all of their direct and indirect reports on a regular basis.
  2. Establish and communicate clear rules against posting of pictures, sending improper emails, or using unacceptable language in the workplace.
  3. Enforce the rules at all levels.
  4. Investigate – Not just when a complaint arises, but anytime there are signs of harassment in the workplace.

Remember, the law holds employers accountable when they knew, or should have known, that harassment was taking place.

When it’s time to investigate, www.GoInvestiPro.com!

InvestiPro mentioned in Top 5 HR Tech Conference Moments

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.

Will InvestiPro be the “Next Great HR Technology Company of 2016”?

We will find out today. Cheer us on at the opening session of the HR Technology Conference and Expo. We’ll be competing today at 3:45 Chicago time, and will let you know as soon as we get the results. But truly, it is an honor to have been selected as one of 8 finalists from all over the nation. Help us spread the word. When you need to investigate, GoInvestiPro.com! #HRTechConf

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

Top 10 Investigation Challenges – Part 8; Why your labor attorney may choose not to conduct your workplace investigation.

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!