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
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.


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 »

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