Questions from the Upper Midwest Employment Law Institute

May 28, 2012

Speaking at the Institute always gives me an opportunity to contemplate the challenges people face in their practice — whether advising employers, conducting investigations or attempting to manage workplace conflict.  This year, as every year, I ran short of being able to address all of the questions written by attendees, and, as promised will address them here.

1.  Do you advocate for the use of interview systems such as Verbal Judo or the Reid Technique for use in workplace investigations?  Have you used or experienced the use of these techniques in an investigation?

I am familiar with both techniques, and have had training in Reid.  I always think it is a good idea to have a range of styles and techniques in one’s “bag of tricks,” however I generally don’t advocate either strict adherence to a “system,” nor the general use of either of these techniques in workplace interviews for several reasons;

1) These techniques were intended to extract confessions in criminal investigations.  As attendees heard from me, workplace investigation techniques must contemplate an ongoing relationship with the interviewee. Even if the alleged bad actor has engaged in misconduct, there is some percentage of a possibility that they will continue to be employed.  Thus, using techniques that are “hardball” is not in the employer’s interest (I wrote an article on this last year.  Look through this blog’s archives to find it.)

2)  Misconduct in the workplace is not as bright-line as criminal behavior.  Often we are dealing with subtleties of context, relationships, history, underlying conflicts and cognitive differences.  The techniques described above are hammers, not useful when a scalpel is the right tool.  We are trying to understand the perspective of the person we are interviewing, rather than fitting them into a narrow box. While occasionally we deal with frank liars, more often we deal with differences in perspective.  Trying to extract “confessions,” vs. coaxing admissions is not desirable.

When an employee brings up events or even admissions that do not pertain to the investigation at hand, should you include that in the report, and what should you say with regards to the fact that it does not pertain to the investigation.

While there is no hard and fast rule about whether or not to incorporate new facts or allegations or even admissions into an ongoing investigation, there are several factors to consider;

  1. When new issues arise, the investigator should use consistent criterion for deciding whether the issues should be added to the current investigation or held in abeyance for a separate or parallel inquiry.
    1. Is the new issue sufficiently related to the existing issue that findings would have an impact on conclusions about the situation as a whole?
    2. Are the parties central to resolving or exploring the new issue substantially overlapping the existing pool of witnesses?
    3. If the new issues/allegations are true, would they likely change the organization’s course of action
    4. relative to the existing organizational scope, or conversely,
    5. If the new allegations are found to be untrue, could this substantially affect the assessment of credibility of any party to the current investigation?
    6. Is the new issue of sufficient scope that it calls for a separate dedication of resources in order to ensure that the central investigation is completed in a timely way?

    Answering these questions will help you determine whether you should take up the new issue or tell the person that while their allegations or facts are important, that they will need to be addressed in a different process.

An employee feels her boss is a bully and that she is working in a hostile work environment.  The investigation says no.  The employee thinks that biases exist, but to no findings.  How do you handle it?

Let’s be very clear that being bullied (an experience that can be highly subjective) and establishing a “hostile work environment,” which requires a factual finding of conduct that is severe or pervasive, unwelcome, offensive, discriminatory and has an effect on the terms and conditions of employment are worlds apart in terms of standards. Bullying may not “show up” in an investigation.  A boss who nitpicks performance, is openly critical (even if the criticism is justifiable,) gives less attention to an employee as compared to others, or who engages in nonverbal, if significant signs of acrimony towards an employee is bullying, yet the behavior in this case would be sufficiently nuanced and subtle that an investigator would have a very hard time finding actual facts to support it.  Thus, it comes down to a non-investigative approach and more of an OD approach.

I think in this case, it is important to really understand what the employee is experiencing, and to do so not in the context of a formal interview, but in a real discussion.  If she perceives bias, how is it playing out?  Don’t dismiss the employee who lists behaviors that, on their own, might seem trivial, because it is becoming more and more well established that “micro inequities” are not only real, but have a significant impact on one’s employment experience.  Are other employees greeted when she is not?  Do others get more mentoring?  Is she being held to higher or tighter standards than others?  If she is credible, and can isolate some of these things, it might be an opportunity to informally mediate a discussion with her and her supervisor, or to do some awareness training for the whole group.

The key here is to focus on conduct, rather than policies and perceptions rather than facts.  If your investigation shows no policies are being violated and no unlawful conduct is occurring, this is a organizational challenge like any other– think in terms of education, sensitivity, awareness and most of all, communication.  When parties realize you are attempting to facilitate positive change and they are not being considered for discipline, they may be willing to admit to blind spots or skill deficits that can help them move along.

Of course, if your questioning turns up more specific allegations of protected class discrimination or harassment, it is time to reopen that investigation!

Can you give some tips for how to ask about very ugly allegations, for instance an employee claiming she was sexually assaulted by another, but the counter claim is that she was giving sex for pot?

It is absolutely essential in cases like this that we provide an interviewee an opportunity to respond directly to claims against them, whether direct or counter claims.  As I discussed in the interviewing session, it is best to work towards these “ugly” allegations by first providing the subject the opportunity to tell their story without interruption, to then provide details in a cooperative manner, and then to respond to allegations that have not emerged in their own story.  In this particular case, I might approach the counter claim by asking the employee who is alleging sexual assault whether there is anything she expects the accused to say in his own defense, or whether there are any circumstances she wants to share that might cast doubt on her version of facts.  I would tell her that if there is anything the accused is going to bring up to try to mar her credibility, it would be best if I heard it from her.  If she did not broach the subject of pot, I might ask her whether she had ever gotten marijuana from the accused, either purchased or by any other means, or whether she was aware of his providing marijuana to anyone in the workplace.  Then I might ask whether it was possible he believed that she wanted marijuana from him, and finally I would ask whether there would be any reason for him to believe that she was interested in exchanging pot for sex.  Obviously the reactions to each of these questions would trigger the follow up probes.

I find that reminding myself that giving someone the opportunity to respond to “ugly” allegations is really about justice and fairness, and although it might be awkward to confront someone with these allegations, failing to do so would be irresponsible at best, and a miscarriage of justice at worst.

As an aside, this matter would be well suited for a referral to law enforcement.

You say that we should put people at ease, letting them know they aren’t in trouble.  What if they are in trouble?

Yikes.  This is the challenge of covering a complex topic in a short time.  I believe I was discussing the handling of someone we are interviewing who is simply a fact witness.  If all I need to ask someone is whether they saw someone leave work at a particular time, or whether a coworker confided a fact in them, they are simply there to help me find facts.  There are, presumably, no allegations against them and at the time I am speaking to them I know of no reason that they are in trouble.  I find it is a kindness to let them know that if they walk in anxious and concerned that they are about to be reprimanded or disciplined.  That, of course, is not the case when it comes to those who ARE accused of misconduct.  They get to continue to worry!

Most of my investigative interviews are handled over the phone.  Would you do anything differently?

I would be sure to fax or e-mail a checklist to them so that the tone-setting and information stage can be handled effectively.  I recommend confirming whether they are someplace private, whether anyone else is present and share the same for yourself.  I would recommend spending a considerable amount of time in the opening stages of the interview so you can baseline vocal tone, and refrain from rushing through the interview as we are apt to do when we are not “in person.”  I generally use Skype for telephone interviews so I can better observe and build rapport with the interviewee, and recommend you consider doing the same.

What if you are conducting what should be a “quick” witness interview?  I get a lot of pressure to keep it short.

Even though the five step interview process may seem time consuming, a simple witness interview can take as little as 20-30 minutes while moving through all stages.  The notices will perhaps be the most time consuming part of it, the uninterrupted narrative can be limited to “What do you know about why you are here?” and funnel questioning, and if the information you need is very on point, there will be little interest in much deconstruction; however, don’t “skip steps.”  The credibility of a witness is just as important as the credibility of the party, and pressure to “keep it short” when there are disputes about facts can be destructively short sighted.  Whoever is pressuring you about time needs to understand all of what is going on in an interview– assessing credibility, building rapport, getting information, testing information and documentation, and that like anything else, doing it well takes…well, the time it takes.

More questions later!


SLIDES FROM THE UPPER MIDWEST EMPLOYMENT LAW INSTITUTE

May 24, 2012

 

As promised, I have attached PDF copies of my Power Point slides from my break out sessions for your personal use.  As always, I ask that you be respectful of my intellectual property rights and use it only for internal or personal information sharing.  Any other use requires express permission.

There are fifteen questions pending from the break out sessions, and the answers will be posted on this blog next week.  Check back then, and thanks for your interest in these topics.

 

The Subtle Art of Investigative Interviewing

Subtle Discrimination and micro inequities


Workplace Cruelty: Bullying is Not Just for Kids

May 9, 2012

I’ve been doing a lot of talking about bullies.  Increasingly, employers are asking me to speak with their employees and managers about bullying in the workplace, and the response I have been getting is remarkable.  After every session, whether in a blue-collar setting or a tony professional firm, people approach me and tell me their stories.  And the stories floor me.

Yesterday, a tearful employee asked me what she could do.  Her husband had left an employer after being bullied so badly that he attempted suicide, and now can’t find a job and is heavily medicated and profoundly depressed.  Just days before, a burly man told me haltingly that he has been bullied by colleagues for years, and that he blames himself for being too weak to quit.  Still another employee asked me if throwing a phone at someone was bullying, because a colleague would do this when stressed.

So I have had bullying on my mind.  Bullying is being so persistently mean to someone that it causes them to want to quit, or perhaps they become so overwhelmed by the treatment that they fall apart and get fired.  It is real and it is horrible.  It’s victims often suffer Post Traumatic Stress Disorder—the psychological condition most of us associate with cataclysmic violence, rape, genocide or the witnessing of atrocities.  Ironically, it is not unlawful.  While harassing someone for being of a particular race, religion, color, national origin or gender, amongst other categories, is unlawful under  Title VII of the Civil Rights Act, there is no law that specifically ensures that we can go to work, do our job, and be free from brutal, denigrating, humiliating or demeaning treatment from others.  In fact, a lot of bullying is done in the name of “managing performance” or “holding people accountable,” although when you look at the specifics, it is really intended to break someone down so they will quit.

One workplace bully crumpled up a subordinates work and threw it at her, then made her crawl on the floor to pick it up.  Another mocked a colleague in an important meeting by mimicking his words in a high falsetto while everyone laughed at him.  A third screamed daily at an employee for any minor error, reminding the employee that he was lucky that someone so stupid wasn’t fired on the spot.  Imagine experiencing these things in your workplace.  Imagine that others knew it was going on and failed to even say they were sorry it was happening to you.

It is time to take bullying seriously.  The word evokes a childhood problem, but the problem and its impact are anything but childish.  Constant criticism, mocking, catching every micro-error, ostracizing someone or being abusive to someone who cannot escape it without losing their livelihood is psychological violence.  Held hostage by their own economic survival, bullying victims are forced to return day after day to the hands of their abusers with little recourse.  In no time at all, the organization may see them as “the problem,” as their work and psychological well-being suffer.

Companies can and should expand their policies to prohibit harassment for any reason or no reason.  Employees should be encourage to stand up to inappropriately harsh or damaging treatment, and there should be education promoting feedback and supervision that nips bullying behavior in the bud.  Bullying employees and supervisors should be offered coaching to expand their behavioral repertoire, but only with a credible insistence that without such a change, they can no longer be employed by the organization.

In these days of uncivil public debate, political polarization and immersion in worlds where “flaming” someone you disagree with goes unchallenged, the workplace needs to establish clear expectations for professional and businesslike conduct; it is good for business, and it is good for people.

The folks at the Workplace Bullying Institute are trying to change the law from state to state.  It’s a good movement, but I’m not interested in waiting for the laws to change.  It is in every employers profound self interest to simply insist that no one be brutalized in their place of employment; bullies interfere with productivity and morale.  They wreck your employment brand and they wreak havoc with things like transparency, innovation and risk taking.  

For more information, see my article on workplace bullyingBullying Article


%d bloggers like this: