Before You Tell Them Not to Discuss The Investigation

August 14, 2012

…be aware of two very recent and very important pieces of information.  In one case, Banner Health Care 358 NLRB No. 93, the National Labor Relations Board found that blank “gag rules” requiring all participants in an investigation to refrain from discussing the investigation while it was ongoing, with the rationale of protecting the integrity of the investigation was a violation of Rule 7, which allows employees to discuss the “terms and conditions of their employment.”    The NLRB indicated that an employer has to have a legitimate business interest that outweighs that rule, including the need to protect a specific witness, danger of evidence being destroyed, testimony was being fabricated or there was a need to prevent a cover up.  A blanket practice to require all employees to refrain from discussing the matter was deemed too broad to meet these criterion.

In a second matter, the the EEOC’s Buffalo, NY, office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:

You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial”

While this is only one office of the EEOC, and we will see challenges to the NLRB decision, employers should nevertheless promptly make changes in their checklists or other means of providing notices to witnesses.

1)  Ask, don’t order witnesses and parties to refrain from discussing the matter, and explain that your purpose is to be certain the investigation is far and unspoiled by gossip, false impressions ,or influences.

2) Do as I have, and clarify to the witnesses and parties that they do have a right to discuss the terms and conditions of their employment with others, however they should not discuss the questions you have asked them or their answers.

3)  Analyze whether there is a reasonable risk of witness tampering, retaliation or harm to a witness, evidence that may be destroyed or collusion with others to falsify testimony.  If, for instance, a respondent has allegedly threatened a complainant with consequences for reporting, it seems the NLRB would find that an order to maintain confidentiality outweighed the rights under Rule 7.

This is not new.  I wrote about the tension between the right to concerted activity and investigative confidentiality in my book, and found myself posting it recently in a Linked In forum.   Make sure you have a sound basis for requesting someone to refrain from discussing the interview, clarify the purpose, and never provide a blanket gag order.


Impasse. Logjam. Intractable Conflict.

July 26, 2011

The political stalemate in Washington, as disheartening as it is, provides a good opportunity to think about the conflicts that lead to claims, and the challenges of investigating claims when individuals have staked out a position/set of beliefs that seem completely contrary to one or more coworkers or supervisors who have equally powerful perspectives/beliefs. Particularly in allegations of hostile environment or systemic discrimination, parties have spent a long time talking themselves (and likely others) into their perspectives. They become inflamed by suggestions that there might be another way to see things, and should you insist that they try, they often fold you into those they view as “the other side.”

Several years ago, I investigated the work environment in a large nonprofit organization. After several complaints emerged of discrimination based on national origin/ethnicity/religion, they asked me to conduct an inquiry. Each and every one of the complainants was credible, and pointed out actions of management and supervisors, coworkers and even clients that they felt showed animus. Some had been disciplined in ways they felt were unfair. Others “knew” of incidents that supported their view that the organization was toxic. In one case, a complainant had been accused of misusing a piece of equipment, and pointed out that his majority coworker had used the equipment in the exact same manner with impunity. A second described a supervisor repeatedly calling attention to his protected class, making him feel uncomfortable. Because the 8 complainants had come together and shared their data prior to complaining, they felt absolutely certain that their data set was legitimate. The organization was poisoned with racism from the very top.

Speaking with management was equally challenging. For every specific incident, there was a different perspective. The equipment usage had not been the same, and the documents showed that this was the case. The supervisor who referred to protected class was concerned about the employee’s constant accusations of racism and had asked what could be done to diminish that perception. The employees were “plotting,” “jumping on the bandwagon,” and “were the real discriminators.” There was no basis for the complaints, and that was that.

As an investigator, we are stuck with facts, and it was with great regret that I stuck to my role and reported that while some incidents reported were accurate, many others were disputed fairly and by evidence. Those are the days when being an investigator is frustrating, because through the process of listening to the stories and sentiments of all of the parties involved, it became clear that the question before the organization was not just the legal one regarding the weight of the evidence, but the organizational challenge as to how the organization would move forward.

That gets me back to intractable, or seemingly intractable conflicts, and the valuable perspective that interest based conflict management brings to the table. My two “bibles” that have informed and supported my work in this area are Getting to Yes by Fisher and Ury and The Mediation Process by Christopher Moore. According to the first, to resolve a conflict,”…each party must…percieve that the continued existence of the other is both necessary and desirable from the point of view of his own self interest.” The second uses the Circle of Conflict to divide conflict into several categories; data conflicts, relationship conflicts, values conflicts, procedural conflicts.Moore’s circle of conflict Moore stresses that data conflicts– simple differences in data –say I thought our meeting was at 3, and you thought it was 2 — can easily become procedural conflicts –you never give me the right information–and then relationships conflicts –you set me up to miss the meeting. To make resolving workplace conflicts effective, it is important to work at the “bottom” of the circle — focusing on data differences, procedural differences and substantive differences, and by getting these worked through, to develop the trust it will take to begin to resolve relationship conflicts.

In workplace conflicts, two inevitable interests are present; for employees and managers, to receive satisfaction and remuneration for their work. For the organization, to get the work done so the organization can meet its goals. Beyond that, there are many more interests, such as (for employees) fairness, dignity, safety, boundaries and (for employers) having policies obeyed, getting good performance, shareholder value, profitability or mission. Identifying and finding common ground in these interests can form the basis for some powerful dialogue, some healing, and some new respect. There can be civility between “warring factions.” I know, because I have facilitated these meetings. Not to say it is easy. These interventions are time consuming, they are often emotionally intense, they require caucusing to reduce defensiveness and strict ground rules to keep the process afloat. Nevertheless, this type of arduous process of listening for interests and finding common ground may present the only sustainable resolution to the polarization and destruction of two or more groups with profoundly different realities. Absent that, there will simply be more eruptions of conflict fed by the sense that the concerns of all were not taken seriously, and those things wanted — have not resulted. The goal is to move away from what people “want” to what their interests are, and focusing on creating a road map to make sure those interests stay front and center. I for instance, have seen seemingly impossible conflicts softened by having participants describe what being “respected” would look like or feel like. Or to have people passionately speak to the importance of their work in their life, and how events have affected them. At the bottom line, finding what we have in common and exploring shared interests humanizes the process in a way that rights-based or position-based resolution cannot.

It seems that at work and in Washington if you can get past what people ‘want” in order to win, and get to what their shared interests are, in order to go forward together, there is a far greater chance of enduring, principled solutions. Unfortunately, to get there, we need to find ways to get past the legal fictions of “right” and “wrong,” and find our way to shared interests.


Slides from the Upper Midwest Employment Law Institute

May 31, 2010

Another fabulous year at the Institute. I enjoyed meeting all the attendees who took time to chat with me, and was pleased to see that the Institute continues to offer a high -quality experience. As promised, I have attached PDF versions of the slides from the three sessions;
Workplace Bullying
Interviewing
Step By Step


The Great Pretender: Reflections on Interview Simulations

October 28, 2008

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. Read the rest of this entry »


More Q and A from Upper Midwest Employment Law Institute

May 31, 2008

When does it make sense to put someone on leave immediately after interviewing them?

It is always best to keep people at work when it is possible to do so without disruption or unmanageable risk.  With that said, when someone has been accused of extremely serious behavior, such as assault, or when the organization is sufficiently small that the complainant and respondent cannot be separated during the investigation (and the risk of continuing contact is great), a paid administrative leave is appropriate.

How do you deal with someone who repeatedly tells you that they don’t remember key facts?

I have a short fuse for people who don’t remember incidents that happened relatively recently and which, if they happened, would be memorable.  I find that saying that one does not remember is often a dodge.  I tell witnesses that I want to know what they DO remember about the time period or situation, and I encourage them to take a few minutes, to review their calendars or PDA’s to see if they can’t remember something.  I sometimes tell them directly that I find their lack of recollections suspect.  Of course, there are people who are clearly struggling to remember and cannot — and these folks, with authentic lack of recollection, are pretty easy to identify.


Interview Checklist

May 29, 2008

Interview Checklist

For those who have been asking for a copy of the pre-interview checklist, here it is in it’s own tidy little post, easily downloaded for your adaptation and use.


Tough Issues

April 26, 2008

With a book coming out and increased numbers of investigations taking my time, I’ve realized the importance of reflection. The issues I face around workplace investigations become more sophisticated, complex and at times, disconcerting. A few particular issues/ethics questions have repeatedly popped up, so I’ll share my thoughts with readers:

1) The race of the investigator as a legitimate issue in retention: I have been told in two cases that although I was deemed to be the best qualified investigator under consideration, that hiring an investigator who was a racial minority was viewed as more important than mere qualifications. While part of me wants to rise in protest at what, on its face, is an improper determination, I have to acknowledge that my firm’s own research shows that in race discrimination claims that the race of the investigator IS a factor in the degree to which complainants later state that the investigation was fair, and that investigators that match the race of the complainant are a factor in complainant’s willingness to cooperate in the investigation. As such, I am hard pressed to argue with those who factor the race of the investigator into a criterion for selection. It raises for me a question of whether an investigator is ethically obligated to inform a client of this fact when he or she is being retained to investigate a race case. It also raises for me a question of whether the complainant’s ultimate satisfaction is a legitimate measure of what a successful investigation looks like.

2) The value and propriety of feedback to parties in investigations What information parties should be/are given following an investigation is probably the most divergent area I see when dealing with a variety of organizations. While some organizations provide a copy of an unredacted report to all parties, other organizations limit their feedback to “action was taken,” or “the investigation was concluded.” Read the rest of this entry »


More unanswered questions from UMELI

June 1, 2007

On to more of your questions.

Q: Does it make a difference how HR should respond if an employee feels harassed by conduct that is benign or unintentional?

This is one of the more subtle points of responding to workplace misconduct, in that from a strict policy viewpoint, whether or not someone intended to harass someone is not particularly relevant for purposes of deciding whether the conduct was, in fact, harassment it certainly is relevant to the employer in deciding what should happen next. In my experience doing coaching for those who have been found to be “bad actors,” I find very few who wake up in the morning intending to make someone’s life miserable. Most of the behavior in the workplace that is labeled as harassment is inadvertent, ignorant or habitual. Depending on the severity of the conduct, an employer might take the position that even though someone was being the same jerk that they have been all along, someone has called them on it now, and they need to take responsibility, regardless of whether or not they intentionally harmed someone. By the same token, the company might decide that the alleged harasser is a good person who used bad judgment and assume that a slap on the hand will get their attention and stop the behavior. Remember, the goal of addressing harassment is to STOP it, and to assure that it STAYS STOPPED. If someone is enough of a jerk to ignore their employer’s admonition to change their behavior, it follows that the company can’t have a lot of confidence in their judgment. If someone is properly chastised and remorseful, well, it makes sense that the admonition or punishment is sufficient.

The toughest call is a particular species of “privileged” harasser– the one who has gotten away with all sorts of bad behavior for a long time. These folks are usually big producers or valuable contributors who management is afraid to upset, and the simple fact is that without an intensive and expensive intervention, it will happen again. These folks just don’t care if their behavior is a problem, and they are far more mindful in their use of power as a weapon than the average harasser. These people, when being called out for their bad behavior are like cornered animals, and a slap on the hand is likely to enrage, rather than chasten them. When these are the bad actors, the company has to make a decision about what kind of risk it wants to manage — continue to harbor the bad actor and pay off his or her prey, or take a hit by terminating the moneymaker, recognizing that the culture of the organization will be best served, and the business interests of the organization most preserved over the long haul. Coaching has some usefulness here, but about fifty percent of the true representative of this type of harasser is unable to muster the humility that successful coaching requires.

In summary, true inadvertent harassment will be responsive to proportionate remedies — mild discipline, education and clarity of expectations. If those remedies don’t work and the conduct recurs, the company should assume that the behavior is not so benign and be more aggressively punitive. In the case of the intentional harasser, however, the stakes are far higher and the consequences far more profound. Companies need to dig deep, do some examination of their goals, and either protect their moneymaker at what may be great expense (likely to be incurred repeatedly) or protect their employees at no less an immediate expense, but with a fairly high likelihood of a positive return over time.

Q. What is the best way to structure questions so as not to put the person on the defensive but to get to the truth?

In my five stage approach to investigative interviewing, I emphasize the importance of letting people tell their own story in their own words. Our job as interviewers is to ask the most open-ended questions that will help people tell us what we need to know. If someone is defensive, the best way to begin is by expressing a real interest in understanding how things look from their perspective. We might say things like, “I can see that you have some pretty strong feelings about what actually happened during that discussion. Tell me what you remember.” The key is to remember that people need to tell it from their perspective before they can tell us the facts. Our direct questions should only come after they have described matters in their own words.

Q. How should an investigator respond to please for a second chance/leniency after they have admitted wrongdoing?

You’ve hit upon a pet peeve of mine, and if you are an in-house investigator it’s quite possible you aren’t going to like this answer . Stated simply, I don’t believe that this conversation should ever take place because I feel strongly that the investigator and the decision maker should NOT be the same person. I think that finding facts and then being the one who has to manage those facts can legitimately be called out as a conflict of interest. After all, if my job is to fix a problem, aren’t I inclined to define that problem in ways that I know I can fix?

I feel that companies do HR a real disservice when they ask them to be an investigator and then to also be the disciplinarian. The disciplinary decisions should be in the hands of management. It is the job of managers, with the advice and counsel of HR, to manage their people, including their discipline and termination. Delegating this important management function to HR diminishes the significance of the decision and compromises HR. Too often, I see managers roll their eyes and apologize to employees for their consequences, shrugging gamely and saying that “HR made me do it.”

Ironically, the people that most often object to my thinking are HR people themselves. They argue that they, not managers should decide the discipline because they know what has happened across the company or that managers are ill equipped to make these calls. Frankly, I think that is wrong-minded. I believe that managers abdicate their role in running the business when they don’t make and take responsibility for tough personnel decisions (and therefore can say “this was my call,”) and that HR people have gotten into the habit of enabling them.

The answer to the question, therefore is that the response to such please should simply be “I am not the one who will be making that decision.”

More later!


Unanswered Questions from Upper Midwest

May 31, 2007

What is a presenter to do? We want to give people great information that is practical, nuanced and detailed, yet find ourselves trying to give a full semester of information in an hour. The casualties? The questions. If you are reading this, you may be one of the seminar participants who submitted a question at the Upper Midwest Employment Law Institute and who did not get an answer. As promised, I am featuring those questions and my answers here for the benefit of all. Before I do that, though, thank you for being such attentive and interested learners!

Q: When conducting an interview, it is difficult to listen and take notes at the same time. Any suggestion on how to document the conversation? The employee usually clams up when they see you are taking notes.

A: In my session on “The Anatomy of an Investigative Interview,” I strongly advocated for a five-stage interview process, the second stage of which was what I refer to as an “Uninterrupted initial narrative.” This is an opportunity for the interviewee to say what they have to say, or to tell their story, and for the investigator to listen carefully. During this first stage, I recommend only the most limited notetaking so that the investigator can really listen to the interviewee and also so that when the interviewer “takes over” the process that he or she can be prepared for what is going to be said and also can take notes in a manner that is more organized. This is very helpful in managing notetaking, as you are only taking notes after they have already told you things, eliminating the need to “clam up.”

It’s also worth considering taking your notes on a PC if you are a good typist. Most of us in this day and age can type without looking , and much faster than we hand-write.

Finally, it’s important that you communicate that your purpose in taking notes is to be as ACCURATE as possible, not to somehow use it against a witness.

Q:Do you recommend that the interviewee be asked to sign or write a written statement following the interview? Why or why not?

I am not a huge fan of written statements. I think that they are of limited use, as people can change their minds about things whether or not they write them down, and in fact, writing things down may prevent someone from feeling able to bring additional recollections or changed information forwards, as though we have “locked them in” to a version of events. I also think written statements make things more officious than they need to be — the fact is that we have to act on their information whether or not it is written, and if we are only going to rely on what is written, why do we bother to interview them? The answer is obviously that people give better information answering questions than they do in a statement. Hence…our interview notes are a better source of data than a statement. Finally, I worry about varied levels of literacy and writing ability, and how those can limit or enhance someone’s chance of having their story understood. What I will say, in my usual caveat about consistency, is that if, for some reason, you feel you need written statements, get them from everyone, not just the complainant.

Q:Do you ever try to get an interviewee to lose her temper just to see if you can?

On occasion, we will anticipate a monster walking into the room — when many interviewees have described someone’s temper, yelling, screaming, emotional outbursts, etc. When the person comes in and is professional and calm, it certainly should lead to an investigator being curious about whether the previous witnesses were exaggerating or whether we are dealing with a good actor. In these cases, and within reason, and late in the interview, I may be provocative with the individual to determine if they are consistent in their behavior. This would be part of a credibility assessment. Generally people with poor impulse control can only sustain a calm demeanor for short periods, so this can be successful. I would not recommend doing this routinely.

Q: How much detail about a situation do you give the interviewee? In a small organization it becomes obvious who the complainer is — should we be protecting the complainer’s identity?

We should protect the identity of complainers and witnesses when it is possible…and that would be when identifying them is not necessary to allow a respondent to respond to each and every allegation against them. So, for instance, if you are told that someone has dirty magazines in his drawer, you can ask him if he has dirty magazines. If he asks who made the allegation, the proper response is “you don’t need to know.” If the allegation is that Mary Smith called John Doe a racially inappropriate name, we might ask Mary if she has used racially inappropriate language in the workplace, and then, if she denies it, ask if she has used the particular utterance. If Jane Walters says that Mike Brown made a sexual advance towards her, we are going to have to ultimately ask Mike Brown if he did so, and Jane’s identity will need to be shared. This is called need-to-know and is the standard for information sharing in investigations.

Q: A variety of questions regarding data practices

a)Minnesota specific answer here. The Attorney General’s office has advised that Tennesen Warnings do NOT apply to employment investigations. This does not mean that some employers do not continue to provide them.

b) In my session on interviewing, someone asked about providing interviewees with copy of the interviewers notes, and I responded rather fliply that I don’t do that. Of course, several of you correctly pointed out that in public sector investigations that the subject of the data, once the investigation is over, is entitled to the investigator’s notes. I was not thinking about either the public sector or the context of post investigation, and I apologize. There are limited circumstances under which individuals may request and receive the interviewers notes. As an outside investigator, I do not provide those notes unless I am instructed to do so by a unit of government, subject to an appropriate demand under the Minnesota Data Practices Act. Everyone else — I just say no!

More answers tomorrow!

For those of you in search of a checklist that I mentioned, Click here for theInterview Checklist .


Systemic Discrimination: A New Frontier?

December 27, 2006

The EEOC’s announcement that systemic discrimination is a new priority

has, in this investigator’s experience, prompted increasing claims that not only single locations, but entire organizations across multiple locations are engaging in practices or maintaining environments that constitute systemic discrimination. The challenges of investigating such claims are plentiful, but in some instances the sheer volume and range of data that must be collected can result in a more solid analysis than a simple case based only on the statements of parties and witnesses.

While not directly applicable to US law, the Ontario, Canada Human Rights Commission has identified three succinct areas of analysis that must be explored to determine if systemic discrimination exists:

  1. Numerical data, such as employment statistics, salary data, promotional and developmental information, leadership development program statistics, retention data. While these may appear to present discriminatory patterns, there may well be a nondiscriminatory reason for the numerical patterns, so they must be viewed in context.
  2. Policies, Practices and Decision Making Processes. Are policies and practices routinized, or highly discretionary? If routinized by clearly delineated procedures, are those procedures complied with? If discretionary, is there conscious or unconscious bias in the way decisions are made, for instance on relationship rather than qualifications. Are policies and practices unduly geared towards benefiting the dominant culture (i.e. promotional criterion favoring one gender over another.)
  3. Organizational Culture. Culture is all of the manifestations of shared values and beliefs. Internal cultures can be inclusive, engaging a wide variety of styles, talents and identities, or can be such that certain individuals are marginalized. Is there defacto segregation in job families? Are people pigeonholed into career tracks based upon their national origin? Is reward and recognition disbursed equally throughout the culture?

As an investigator, one must be prepared to explore all three of these areas. While the temptation to rely on an audit of an organization’s quantitative and procedural data is real, ignoring the more complex factor of culture renders an investigation incomplete. Unlike an allegation involving an incident or specific pattern of behavior and consideration of a limited “witness pool,” systemic discrimination cases involve careful sampling of both those expressing dissatisfaction and those making no complaints about their work environment. Examination of such things as routine communication patterns, invitations to and attendance at key meetings, appointment to key “high visibility” teams and “unwritten rules” all may come in to play, as may the history of all of these things. Who has informal access to leaders? Are corporate communications inclusive or exclusive? Are there “ghettos” of certain protected classes in particular job families? Is there a hard “norm” of who will be successful?
Because these investigations are both comprehensive and complex, the most helpful investigative skill set is somewhat different than it might be for normal employment investigations. A combination of strategic OD skill, or organizational assessment experience is a vital addition to at least the planning, if not the execution of the investigation. Careful application of sampling and open ended questioning is the purview of those who do “climate surveys,” and is extremely useful in organizing the cultural examination necessary for a thorough exploration of systemic discrimination claims. Focusing only on formal “cultural values” or aspirational statements is insufficient to view the submerged culture which can be the root of systemic discrimination, or can be the linchpin of a culture that truly is inclusive. Read the rest of this entry »


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