Top 3 Reasons employers avoid investigations; and why they shouldn’t.

Ask any manager or business owner which two words they hate to hear the most from HR, and you are likely to get a response of “workplace investigation”.  Those words have a bad reputation for leading to things like, litigation, termination and other …tion words that we would all rather avoid. But avoiding the investigation is not the answer. Here are the three top reasons employers avoid investigations, and why they don’t hold weight.

Avoidance #1: If we conduct an investigation, it is just going to create more liability for the company.Continue reading

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!

Top 10 Investigation Challenges – Part 6; Hygiene, Bodily Functions and other Uncomfortable Conversations.

Every manager and HR Representative has to deal with this type of complaint at some point during their career. As a matter of fact, these complaints are reported in the work place much more often than you might imagine. There are your everyday complaints, “Danny comes in to work smelling like garlic and has such bad gas that I need you to move my desk away from his.” Some complaints are less frequent such as, “Sally is taking bathroom breaks a few times every hour and it is interrupting the work flow”. And then, the doozies like, “Frank’s body odor is so bad that I have to run when I see him coming to avoid him approaching me. I can’t work with that guy!”  Yes, they even get much worse than that, but we will leave the restroom complaints for another time.

You may be asking, “What does this have to do with investigations?” The simple answer is, everything. 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 4; How to Handle an Anonymous Complaint.

While conducting harassment investigation training, I have been asked many times, “Are we required to investigate if we receive an anonymous letter or email reporting possible harassment?” The real conundrum is whether an email or voicemail meets the definition of a complaint if  there is no identifiable complainant.   Still, I would advise against putting it in a drawer (or the round file) and forgetting about it. As we discussed in Part 3 (Five Questions to Determine if an Investigation is Required)  an employer is required to perform an investigation anytime it is determined that harassment may be happening within the company. Continue reading

Top 10 Investigation Challenges – Part 3; Ask these five questions to determine if an investigation is required.

In the business world, nothing ever seems to be black and white. Instead, the daily grind comes in many shades of gray (way more than 50!).  This too applies when a complaint is received by an employee, leaving the manager or HR representative to determine credibility of the claim and decide whether an investigation is required.

Although workplace investigations most often are thought of in regard to sexual harassment and other offensive conduct within the workplace, an investigation may be warranted and useful in the workplace even if the reported behavior does meet the legal definitions of harassment, but instead may violate company policy or standards.  Under federal law, failure to investigate and act on a complaint of discriminatory comments, improper verbal or physical contact, or even what may seem to be a few isolated jokes, may quickly develop into a harassment claim and an investigation is often required.

To determine if an investigation is warranted, ask the following 5 questions: 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.