The Anatomy of an Investigative Interview

Here are the slides from the interviewing session sepler anatomy

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More Questions: Investigative Interviewing

1.  What suggestions do you have for employees that use the “buzzwords,” such as “hostile environment,” or “harassment, when (the complaint is ) really about a manager that is dealing with performance issues.  When I have told the employee that what I heard wasn’t a hostile work environment or harassment, they ask for the definition and then change their story.

It is probably not prudent or helpful to debate with a complainant about what the legal definition of an employee’s issue might be.  Employees know, rightfully so that by invoking certain words, they will get your attention, and so they say “harassment,” or “hostile environment.”  Regardless of whether they are technically correct, their concerns should be taken seriously.  Rather than concluding that their issues are based in proper performance management, it would be appropriate to ask about the behaviors they are experiencing, why they feel harassed, or why they feel their environment is hostile.  While what they describe might not fall within your harassment policy, it might call for some coaching or consulting with the managers involved to discuss ways to improve the way things are happening.    Taking complaints seriously, listening carefully to what is going on, taking a neutral and balanced look at the situation and responding fairly will serve you well, and certainly far better than debating the legal, technical aspect of the complaint.

2. What can/should we tell claimant and alleged perpetrator at the end of the investigation?

You’ve unintentionally given me the opportunity to address an issue I often fail to mention — and that is the labelling of parties in an investigation.  I don’t believe “perpetrator,” alleged or not is a term that is likely to make an employee feel he or she is likely to have a fair shot. From a popular culture standpoint, we tend to reserve that term for crimes, and mostly crimes of violence.  While harassment and discrimination may be damaging, let’s not find ourselves equating them with crimes of violence, but instead recognize them as workplace issues that must be addressed, remembering that only a small percentage of those who are found to violate harassment policies are terminated for doing so.  Thus, tomorrow, the “alleged perpetrator” may be one of the employees whose engagement you are seeking.

With apologies for the mini-rant, the answer to your questions is, “as little as possible if it involves anyone else.”  In other words, ” a complaint was made, an investigation was done, if the findings of the investigation called for action, such action was taken AND the bottom line is that if conduct was occuring that violated our policy, it is our expectation that they will not recur.

When do you ask if the complaining employee objected to the conduct? This is a question that should be asked in Stage 3 — reconstruction, and the question is best framed “What, if anything, did you do in response?”  Remember, an employee need not have directly protested the conduct for that conduct to still have been unwelcome.

(In response to my statement that managers, not HR people should be making decisions about the consequences or actions the business will take) How do you recommend we handle doing the investigation, having the manager make decisions on the next step AND manage consistency within the organization?

You give the manager a “decision package,” which includes how similar claims have been handled in the past, the range of options available and the costs and benefits (including deviating from past practice) of each option.

Investigative Planning Slides

As promised, here are the slides from the session on Planning the Investigation. Planning the Investigation 2009

Questions Regarding Investigative Planning

1. If an employee identifies multiple witnesses that were “in the room,” or observed an event, how many should be interviewed?

I would suggest that the answer to the question would depend on the relationship of the witnesses to the employee.  If two are the employee’s close friend and one is not, I would begin with the person most likely to be neutral.  I also think that if you can identify people who were “in the room” that were NOT named by the employee, that those witnesses would offer a “cleaner” version.  With that said, I would say to the employee, “If I can only interview two or three of these  witnesses, who would be most important for me to speak with and why?” and make sure that at least one person s/he identifies is interviewed.

2. Are there times that an employer should disregard a witness because their credibility is questionable, i.e. a friend of a complainant might have a motive to lie?

One of the most powerful witnesses can be one who speaks against their own interest.  I remember several years ago thinking that it would be a waste of time to interview a witness because of her close association with the respondent.  She said to me, “She is my best friend, and I hate to say this, but she did it.”  Here, a witness that had every reason to defend her friend did the opposite. If  I had skipped that interview, things would still be inconclusive.  I would not disregard a witness simply based on a relationship, however I would use my knowledge about that relationship to “push back,” perhaps asking, “do you believe your friendship with ….is affecting your perspective on this issue?”

The First Twenty Four Hours–Slides

As promised, here is a PDF version of my slides from the Intake session on Friday morning.  twenty four hours twenty four hours 2009

Answers to Questions about Intake

1. How do we validate feelings without validating the substance of the complaint?
Great question. You will recall that I discussed the importance of naming the feelings people have, but to refrain from making any statements that assume the facts being asserted to be true. Therefore, we can say things like, “I can see it is hard for you to discuss this,” or ” You seem very angry,” or “I am sorry this is so difficult for you,” without giving away anything. We are not attributing the feelings, Just naming them.

2.We have a chronic complainer. How do we decide which “gift” to take seriously?
Recalling that receiving a complaint can be compared with getting a “gift,” this questioner points out that it is difficult to be gracious when you are getting complaints frequently and sometimes without merit. In the intake process, we are listening to someone’s concerns and trying to figure out what kind of problem they are describing. While someone is complaining is NOT the time to educate them about what is “worth” complaining about and what is not. It is possible, however, that chronic complainers will respond to a “level setting” discussion when they are in a relatively unstressed state. Sit down with the person and express concerns about their frequent unhappiness and discuss the kinds of things that should be brought forward for HR or managerial handling and those things that they might want to address themselves. Brainstorm strategies with them about self-help and assertiveness, and point out to them that constant complaining about things that are trivial will dilute their effectiveness in getting help when it really matters.
3. I am interested to hear more about giving the employee the option to address the situation themselves in the case of a “concern” level issue. Is thee risk that the employee will not be honest with you when you follow up? Have you run into this and does it raise large concerns?
Thanks for this question. It gives me an opportunity to be clearer about the parameters for self help.
If you have a complainant who is describing a single incident of moderate or low offensiveness, and who is reluctant to get the person involved in trouble or who is concerned about a damaged relationship with the “bad actor,” they can be coached to take steps on their own such as writing a note describing the conduct and requesting that it stop, having a discussion directly with the person (perhaps after role playing the discussion with you) or taking another direct-action step. As I said, it is important that you then follow up, first to ensure the planned action was taken, and then several subsequent time to ensure that the behavior has not recurred. I find that by asking detailed questions in follow up it is fairly clear whether or not the person actually went through with the discussion or action. I have also found that when I suspect they are being untruthful that if I ask if they mind my checking in with the other person, they quickly demonstrate whether or not they actually have followed through. If the person did misrepresent their actions, I am not certain that there is immense risk involved, as the behavior involved is assumed to be isolated and the action taken by you as the organization’s representative was reasonable. If it does not recur, it’s not the best result, but not the worst result either.

4.  What about hearsay complaints,i.e Jane told her daughter, who’s my girlfriend who told me that one of her coworkers keeps doing “x” but Jane doesn’t want to come forward..

There are two ways to go with these kinds of things, but it depends on what “X” is, in other words, what is alleged to be happening.  If “X” is swearing, writing graffiti,  telling dirty jokes, using racial slurs, or some other independently verifiable behavior, it seems that looking into whether or not it is happening is not dependent on a particular complainant.  Poll a few employees about work climate, ask if there are problem behaviors and proceed appropriately.  If “X” is doing something TO JANE, then you will need to bring Jane in and tell her that you have received information that she may have concerns and conduct a preliminary intake interview with her.  If she denies expressing concerns, you might ask why someone would beleive she had raised concerns or whether others have a motive to misrepresent her concerns.

Another Great Year at the Upper Midwest Employment Law Institute

Thanks for everyone who attended the “Investigations School” at the Institute, and to our great actor, Camilla Hempleman for being so effective an interview subject. Look for my PP slides and answers to your questions here soon.

The “Other” Harassment: The Bully in Your Office

“His face was inches from mine,” said the complainant.  “I felt as though he was going to hit me.  He didn’t yell, but spoke so slowly that it was as though I was a child.  I could feel myself shaking.  He told me I was worthless, and then threw the report on my desk and stomped out.”

This (composite) statement was made by a middle aged man in a mid management position, describing one of many incidents involving his male manager.  The history included name calling, public belittling, threats of job loss and the periodic throwing of objects or (in one case) destroying work product.  Desperate, he had gone to see his Human Resources manager who told him, not for the first time, that there was little she could do.  There had been numerous complaints over the years, but this behavior was neither discriminatory nor violent, and therefore was viewed more as a “style issue” than an issue of policy.  This company, like most, did not have a policy prohibiting bullying or “general harassment”–that is  intimidating behavior that is not based on protected class status and does not rise to a level of threats of violence.

“The truth is,” said the Human Resources Manager when seeking my advice,”Frank (pseudonym) is one of our most effective guys, results wise.  He manages up brilliantly and no matter his methods, he gets the job done.  When we’ve tried to influence his leader to take control of the situation, he suggests that we recruit better people for Frank.  He tells us that Frank is a driver, and the problem is his subpar staff.”

What are workplaces to do with the “Franks” of the workplace?  Talented and capable, perfectionistic and goal driven, they are ideal leaders on paper.  Their metrics tend to shine, but not reflect the damage inflicted on others and the unused potential wasted in the process.  In the best of worlds, bullys would be spotted early in their careers and held accountable for their people practices.  Technical expertise would have to somehow be paired with a modicum of emotional intelligence and an understanding of human development.  That doesn’t happen in most organizations, and most particularly in the professions such as law and medicine, where one rises on the strength of their accomplishments, not their relationships.

In May, I will be presenting a short session on  bullies at  Minnesota CLE’s   Strategic Discovery: Preventing Discovery Abuses and Handling Discovery Disputes. It will be focused on attorneys in litigation, but in preparation, I’ve been looking through the files of the many workplace bullies referred to me for coaching over the years.  These folks have agreed to see me because they either recognize they have an issue or they have been told that their career progress or even retention was conditional upon being coached.  From them, I have learned several things:

The Fear: A Look at Employees’ Reluctance to Complain in Tough Times

If my workload mix is any indication, investigations are down.  Last year, I did over fifty investigations between January and September, and between September and December, only a handful.  While I am pleased to engage in other services for my clients, I have to consider the reason for the change in project mix.  Are people happier? Have employers become enlightened and learned to engage and motivate their people? Has there been a quantum reduction in employee misconduct? Perhaps, but more likely we have entered a period in which people are just darned glad to have a job.  You can see the change in mindset in many places.  For instance, I frequent a woman’s running forum, where we share lots of things besides running.  One of our regulars has been having trouble on her job, and some of the trouble seems to involve serious bullying by a supervisor.  Whereas a year ago, the assertive posters on that forum might have directed her to speak up, to complain, or even to quit and find something else, the general advice was, “in this economy, maybe you’d better just figure out how to survive it.”  The economy has everyone scared, and that fear has simply magnified the fear intrinsic to so many employees — the logic, or illogic that reflexively says, “I can’t complain about my bosses behavior — they’ll fire me.”

For years, the reflexive instinct that employers will punish complainers has been fascinating to me.  Of course, the fear is not unfounded, or there would be no need for laws protecting employees from retaliation — yet the number of cases I see in which employers are astutely avoiding even a semblance of retaliation far outweigh those incidents suggesting that an employee has been punished for speaking up.  Nevertheless, the longstanding fear of complaining has something I have worked with many organizations to overcome.  Now, with employees feeling simply lucky to have a job at all, employers should not get complacent and assume that all is well.  Those that view the silence as positive do so at their own peril.

It is worth considering that an employee experiencing bad behavior by others, but who does not complain about it is not a good thing.  It is inevitable, in the absence of a change, that the unhappy employee’s productivity and engagement will diminish.  As time passes and productivity and engagement continue to drop, the employee might be subject to progressive counseling or disciplinary action.  Faced with such action,the employee may finally surface the now-longstanding concerns, forcing the employer to have to unravel the “chicken and egg” of alleged bad behavior and a seemingly “bad” employee.  The numbers tell the truth:  over 50 percent of employees who raise complaints of harassment have some sort of performance or disciplinary issue going on at the time of the complaint. When the complaint involves alleged unlawful behavior,  the employer becomes hamstrung between continuing to correct the performance issues and appearing retaliatory.  In many cases, despite attempts to keep things contained, the situation becomes complex and  demoralizing to others.  Suddenly, the cost of the problem becomes more than that of one employee’s productivity — it becomes a matter that has effectively handcuffed performance management at a time when managing performance is an imperative.

The average length of time between an employee’s recognition of a problem and their reporting it as alleged harassment is 16 months, and that is a number culled from a healthy economy.  With worries about job security and a job market that is on it’s last gasp, one might argue that the pressure to keep one’s problems to one’s self has increased geometrically. One might also think that the silence is golden.  People are keeping their heads down and doing their job, right? Think again.

In a shrinking workforce, the impact of a single unhappy employee is proportionately greater. In a smaller work group, viral unhappiness spreads more quickly. In stressed workers, conflict can be the final blow to diminishing morale.  More than ever, employers need to be proactive in attending to working conditions and relationships, to encourage employees to speak up and to train managers and supervisors to use intake skills that will demonstrate their willingness to address problems at the earliest possible moment.  In the most receptive* workplace cultures, supervisors, managers and human resources personnel understand that an employee complaint is a good thing.  It is an opportunity to address a problem before it becomes a factor in performance, productivity and engagement.  It is an opportunity to gain the trust of employees.  It is an opportunity to win loyalty and improve working conditions.  Supporting and training managers in eliciting and responding to employee concerns is not a “frill” that should go away in a declining economy, but an imperative that should be placed at the highest priority.

In the tense times of declining resources, as many organizations scramble for survival, it makes more sense than ever to be sure that employees are giving you their best work.  Maintaining an open door and an open mind to the challenges of human interaction may provide that tiny competitive advantage that can make the difference.

*using a cultural dyad of “receptive” versus “deflective” cultures

The Great Pretender: Reflections on Interview Simulations

About a week ago, I presented my annual two- day Employment Investigations Training through Minnesota Continuing Legal Education. This is a terrific opportunity for me to teach in a lengthier format than I usually do, and to experiment with new material. This year, the second day presented three simulated interviews based on a case-overview Since it was our first year using this format, there were a few glitches, but for the most part, the feedback was terrific.

Conducting simulated interviews in front of 100 people is daunting for a number of reasons, the least of which is the high probability that something unexpected will happen and I, the interviewer, will publicly deviate from adhering to all of the wonderful skills and protocol I have been recommending to participants. Inevitably, it happens. Inevitably, the benefit of having the audience as “coaching partners” outweighs the awkwardness. This year, after a full day of interviewing actors in a “blind” case, I found myself noticing some nuances of interviewing that I thought I’d share with my readers.

Pacing

While watching a “real time” interview might not be entertaining, it does provide an opportunity to experience the importance of pacing. As we “feel out” our interviewee, we begin at a careful and relatively slow pace, attempting to mirror the most comfortable and least threatening pace for the interviewee. Once the interviewee has had an opportunity to begin to tell his or her story, we can “move things along” or slow things down by the timing of our probes. A one word probe, echoing an ambiguous phrase by an interviewee slows them down and presses for more detail, while, “and then what happened?” signals that it is time to move along. Similarly, as we begin to “deconstruct” any inconsistencies or flaws in the statement of our interviewee, we can use a sudden change of pace to disrupt what may be a complacent recitation, to try to throw someone off their line of thinking, or to put pressure on the interviewee. Taking up delicate subjects in a slow, measured manner can signal to an interviewee that you are not rattled by discussing difficult situations, increasing the likelihood of candor.