The Anatomy of an Investigative Interview

May 31, 2009

Here are the slides from the interviewing session sepler anatomy

I have restructured the link and will test it to be sure that the document is, in fact, attached.

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More Questions: Investigative Interviewing

May 31, 2009

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

May 30, 2009

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


Questions Regarding Investigative Planning

May 30, 2009

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

May 30, 2009

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

May 30, 2009

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

May 30, 2009

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.


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