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.



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

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

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 »

Seplerblog is now “Investigating Further.”

October 31, 2006

Seplerblog is back with a new host and better content.  Today’s posts will focus on two controversial issues:  credibility assessments in employment investigations and the impact of diversity training on real change in organizations.

%d bloggers like this: