Four End of Year Gifts: Insights from the Frontlines

December 4, 2013

ImageIt’s gifting season. When I talk to groups about trying to effectively prevent and address unwelcome behavior at work, I talk a lot about gifts — those things people give us voluntarily. Like feedback.  When we get a gift, most of us have been taught, we don’t necessarily respond authentically (what the heck did you give me THAT for?) Instead, we thank the person, show appreciation and say something like “I know just what I’ll do with it.” We don’t throw gifts back at people, because that makes them hurt or angry.  We are gracious and we accept the gift.  Applying this little analogy has really helped me to  take feedback that doesn’t feel great, and  by their accounts,has  helped scores of people who realized being told their behavior was a problem by the person bugged by the behavior was MILES better than getting “that call” from HR and being told they had been the subject of the complaint.

So today, I get to give my readers some gifts.  Lessons learned from 2013’s investigations, consultations and mediations.  These are lessons for managers and employers, employees and organizations, and while they may not be the gift you were hoping for, they are offered in the spirit of lessons learned that can hopefully prevent problems for you in the future.

1) Employees and Bosses can not be friends. 

 Go ahead and be social.  Discuss your favorite TV shows and stories about your kids.  Have a team dinner periodically.  Have conversations, even disagreements about sports, music and celebrity gossip.  Travel together to conferences and enjoy one another.  This is what professional relationships look like.  Do not cross the line into sharing marital or relationship issues, confide in one another about your deepest fears or childhood traumas, or spend time together on the weekends “just to hang out.”  Why?  Well, if you are the employee, you are going to develop an unrealistic sense of comfort with this-person-who-manages-and-evaluates-you, and you may reach a point where you have “overshared,”  There will be no magic signal to tell you this, but what happens is that your “friend” starts worrying about how things in your personal life might affect your job (If he can treat his mother that way…)  Or, the day will come when you come in late and smile lamely at your “friend,”  who realizes they have to write you up, and rather than being irked at your boss, you are going to feel wounded because your “friend” wasn’t, well…your friend. 

For you boss, the risks are greater.  You risk, at least, concerns about favoritism.  Nothing stokes the green-eyed monster in employees than a perception of favoritism. Since you likely aren’t “friends” at an equal level with all of your reports, one friendship is going to look closer than another, and the assumption WILL BE MADE that the employee closest to you gets special treatment.  That is the LEAST problematic.  More problematic is that you are going to develop a blind spot with this employee, and something will happen in which you discover you have been taken advantage of.  Perhaps the employee shares information about you with someone else in the workplace, or represents that you were okay with something you never knew about.  Well, boss-person, what is going to happen is this; you are going to feel betrayed or hurt.  It will sting. Maybe you will have a little chat with the employee, or maybe you’ll just “let it go,” but the fact is, that employee’s little errors or omissions, or failure to meet deadlines is now going to seem somehow a bigger deal than before.  You are going to decide it is time to draw some limits, and you are going to communicate that to the employee, who is going to get upset.  Now, instead of an employee-boss performance issue to be managed professionally and appropriately, you have a personal conflict.  Hurt feelings.  Attempts to mend them. Anger, tears, resentment.  The other employees?  They’re tired of the drama and they lose respect for you.Or they take advantage of the chaos and go after your “friend.”  Honestly.  It goes this way far more than you think.  You just cannot be friends.  At best, you look unfair.  At worst, you are unfair.

2.  Covert Workplace Relationships are rarely covert and almost never end well

Trust me on this. You think you’re seamless.  You think no one notices the little looks, the separate entrances and exits, the small exchange of gifts or the coordinated business travel.  THEY DO.  They know about it, they talk about it, and they resent it.  Even if you are truly careful, people can smell this stuff at work.  No your employer has no business telling you what to do in your personal life, BUT WORK IS NOT YOUR PERSONAL LIFE.  See above on the favoritism, see above on the friendship, and be aware that when your relationship goes bad and suddenly working with this person-who-is-the-world- to- you- now feels a lot like being embalmed in toxic waste, your employer is not going to be sympathetic…oh and if the relationship goes bad, there is a teeny little chance that your former lover might go to HR and claim that your attentions were never welcome to begin with.  Or your former lover might decide to start shirking on his or her assignments, and when you try to “hold them accountable,” they might point out that you never did that when you two were in the grips of passion…so you are now holding them to different standards because you are no longer having sex. No JD required to figure out where that might go. 

3.  If you manage people, and you have ever been annoyed that an employee is a) insufficiently grateful for all you have done or b) should just be happy to have a job, you should probably either quit managing people or take a psych course.

We come to work.  We know what we do has some value, because someone is willing to pay us to do it.  If we do it well, we assume, we will be rewarded.  If you are rewarding us to do something, we think it probably has significant value (are you seeing a theme here?)  We come to work and we give what we can.  Not everyone is a great employee, but 90 percent of employees think they are in the top 20 percent of performers.  I have never, ever met an employee who described themselves as “in the bottom 20 percent.”  And, let’s face it, employees go through a lot to do their work.  They come in to work on days they don’t feel great, they put aside personal stuff happening in their life, they deal with coworkers with issues from halitosis to psychopathy, they have to attend meetings characterized by honchos barking platitudes, they have to jump through hoops, get ideas shot down, manage up, grind out productivity, deal with weak supervision and limited feedback, do parts of their jobs for which they have inadequate training or equipment…let’s just say not all of employment, even great employment, is a walk in the park.  While employee’s self assessment may be highly inaccurate, the vast majority of them believe they are giving you more than your money’s worth, and that you, as an employer, should be recognizing, rewarding and promoting them more than you are.  Sure, they see you have given them opportunities and may be truly appreciative, but they also believe those opportunities came because you knew they would step up and their success would reflect well on you.

Another thing?  Employees don’t complain, especially about you, without giving it a whole lot of thought.  Fear of reprisal or job loss is a very big deal.  Most employees who are unhappy with their boss wait months before they say something,  They have tried to cope and found that they can’t.  Maybe their performance has suffered, and maybe their reputation.  They perceive themselves as risking everything to get a problem solved.  At that point, whatever is bugging them has become such a big deal in their life it is probably following them home.  So if an employee has the temerity to come to you with a concern about something going on in their workplace…well, they aren’t thinking how nice it was that you promoted them two years ago, or that they are “lucky” to be giving you the best work they can (in their opinion,) they are actually thinking that there is a contract of sorts, whereby they give you their talents and skills and productivity and commitment, and you give them a safe place to do that and compensate them appropriately.  Thank them.  Listen to them.  Let them know their concerns are being taken seriously. Do something. If the employee went to someone else, it’s not a sign of ingratitude…it’s a sign that something needs fixing.  Humility is a pretty cool part of the human condition.

4) “Managing Performance” is about trying to make it better. “Bullying” is about trying to make it worse.

Image  Look, I’ve been around HR a long time.  Some of my best friends and clients are in HR.  This is a place our HR colleagues sometimes get it wrong.  You have someone with a performance problem.  Maybe you have inherited them from a previous supervisor or manager, or maybe you have finally thrown up your hands because your coaching hasn’t worked.  You meet with HR, who tells you it is time to start “managing performance.”  Awesome.  That means you sit down with the employee and have a frank discussion about your concerns and their concerns.  You listen carefully to what they think has gotten things off track.  You give them specific examples and listen to their perspective, they listen to yours.  You try to get to root cause.  Is it out of work stuff?  Is there a need for EAP? Is it something about a skills gap or job design?  You clarify expectations and work with the employee to try to fill the performance gaps.  You set short term checkpoints and provide the tools or assistance needed to help them succeed.  Lather, rinse, repeat…and if those short term objectives are not being met, you foreshadow the ultimate determination of a non fit between the job and the employee.

No?  What HR is advising is to begin documenting each and every one of the employee’s errors, failure to comport to policies, attitude issues and more?  That the employee should be placed on a Performance Improvement Plan drafted by HR and presented to the employee for signature, which essentially says that they situation will not change but the performance is expected to?  By being abrupt, cold, unavailable, or straight out rude to the employee from that point forward?  To write up the employee for infractions in as high a volume as possible?  To make sure the employee can figure out that the employer does not want him or her there, but lacks the will or skill to simply say that?  To take away supervision, tools, and human warmth until the employee quits?  Nah, that’s not managing performance.  It’s bullying, and it kills the soul of an organization and the people in it.  Really, if someone is that destructive or problematic in a work environment, isn’t it better to just call it a day and give them their notice than to drag them through the dehumanizing ritual of “death by documentation?”

Employees?  If your employer is taking the time to really give you performance feedback, and is telling you specifically where you are falling short, you are lucky.  It is one of the least happy moments in a good leaders life to have that conversation.  They hired you, invested in you, trained you, and something is going off the rails. It’s nothing personal, and it’s not too late.  Listen to what they are telling you.  Engage in the process.  Be honest about what’s getting in your way.  No one sat back and said “let’s take the time to really listen to this employee so we can screw him or her.”  If they are treating you like a human being, it’s a sign they really do care and want you to succeed.  Rise to the occasion, and hopefully everyone will grow as a result.

Here is wishing everyone a holiday season characterized by moderate alcohol use at company gatherings, company gatherings that remain businesslike and festive, and tons of opportunities to engage in charity and community service for employers and employees alike.

 

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The NFL, Bullying and The Next Big Thing

November 7, 2013

In 1998, 1999 and 2000 I went to the NFL Camps of the Baltimore Ravens and the Minnesota Vikings, and I talked about behavior.  We discussed sexual assault and date rape.  The players were unusually frank and raucous in each case, and the youngest players seemed amazed that they now had a public persona to master.  What struck me was that each year, one of the veterans (and marquee players) stood up when the less experienced players began to argue with the idea of respect and consent, civility and empathy and put a stop to the silliness.  I remember feeling profoundly moved when one Viking (whose picture was on my child’s wall as part of a trio of much-lauded players) stood up and said, “This is for real, guys.  We have a responsibility to the team, to each other and to the people we care about.”

I can’t speak for other teams, but I know there was hazing.  Late to the Ravens due to a bomb threat in downtown Baltimore, I learned they made use of the time by having the freshman players stand on  chairs and sing. I was curious and asked about the extent of the hazing. The coach chuckled about it, and told me how it used to be.  Brutality and humiliation.  No more under him he said.  Maybe carrying the equipment but no cruelty.

The headlines this week about the Miami Dolphin’s situation and the culture of hazing that exists in all or part of the NFL is not new news.  Statements in the media suggest that the degree of hazing varies from team to team, as does the involvement of coaches in setting the tone and calling out the limits.  In fact, several former players have discussed their experiences with hazing varying from silly initiation rites to outright cruelty; those who have survived them often claim the experiences have “bonded them,” or “made them stronger.”    Things get more interesting when you read the quotes from “the personnel men” at the NFL;

“”Locker room culture will never be understood unless you’ve lived or have been around it,” said a personnel man. “This is another ploy in the league’s ‘player safety’ book. Incognito knew who to try. You never heard anything like this come from John Jerry or Mike Pouncey. Instead of being a man and confronting him, he acted like a coward and told like a kid.

Aha.  Now we are getting to the dirty little secret behind bullying.  It is often attached to a visceral sense of exceptionalism and a pattern of enabling.  Once exposed, there is wringing of hands and claims it won’t be tolerated, but that history of enabling renders the organizations’ decrying incidents of bullying wholly unbelievable.  And it is not just the NFL.

The worst bullying cases I have encountered in the last twenty years have occurred in the professions, in academia and in other enterprises that involve super stardom.  The superstars may not live on posters in my child’s room, but they have marquee status on the firm’s letterhead, the university’s endowed chairs, the surgery suite and the charity’s boards.  These are the people who recognize their authority and power and abuse it. The organization, rather than demanding leadership, cowers in response to their misbehavior.  Bullying becomes a badge of success and is passed from generation to generation as a privilege of accomplishment. Those who survive are rewarded with promotions, tenure or other status and dollar-driven rewards. The ability to inure oneself to bullying behavior becomes part of the DNA of success, and the DNA of the organization.  Rather than condemn the rituals and behavior that probably thwarted their best work, targets who thrive through it simply emulate the behavior and denigrate those who cannot or will not survive it.  It becomes a badge of courage.

The hardest part of my work, which at times involves uncovering and at other times involves trying to intervene with, workplace misconduct, is that despite the rush of fear that organizations feel in the face of a complaint,  many of them have become inured to a culture based on an erroneous belief that people will do better when they have been subject to some “toughening up.”  One physician recently told me she cannot respect new doctors because they are protected by rules that limit the number of hours they can be asked to work consecutively in their training; “We would operate under conditions that seemed second only to death in the pain they caused, and I think that made us better,” she said.

There is nothing that actually supports the value of humiliation, abuse, embarrassment, exploitation or terror as a positive source of bonding, motivation or future performance.  There is nothing to be found that suggests that any positive organizational metric is associated with the countenance of bullying or negative hazing.  There is no literature that says being screamed at, called names, threatened, publicly criticized or having things thrown in your direction make you a better employee.  Rather, what emerges when we look at these patterns is a terrible dose of inadequate leadership, lazy ethics and a dull acceptance of the status quo.  This is where the work of combating bullying needs to focus.  It is well established that engagement and a sense of safety and dignity go a long way towards creating innovative, creative and productive employees, whether it is in pro sports or the corporate world.  To all of the organizations that say that this behavior is unacceptable, I issue the following challenge; make bullying behavior a toxin to success.  Make it clear by your words and actions that bullying behavior will block even a super star from further rewards, including promotion.  Expand your harassment policies to include non-protected class bullying and charge the folks at your highest level with promoting those policies and walking the talk.  Protect your whistle blowers and recognize that crawling out under the crushing weight of abuse to report it is an act of profound courage and bravery. Live up to those lofty mission statements that always include “respect” and “dignity.”

The next big thing?  A hard stop on bullying. A commitment to a culture where we name it and we rush to support it’s targets. A decision, collectively and organizationally that it really is as old and useless as a canister of DDT.  It’s a poison we can all now condemn and replace with smarter, safer alternatives.

For those not in the know, there is a bill floating around that would bring US states to the level of civility of most other first world nations. The Healthy Workplace Bill has been introduced in 23 states and passed in none. While opponents continue to throw out arguments that it is vague and bad for business, it is clear the law’s time has come.  It is time for a hard stop, and if the law can help, it should.


I’m Sort of Sorry: Coaching the High-Level Harasser

October 9, 2013

Of all the work I do, some of the most maddening and satisfying involves coaching high level professionals (HLP’s) — usually physicians, attorneys, CPA’s or CEO-types — whose behavior has reached a point where even the timid have decided that something must be done.  These are usually extremely high-performing individuals who trail behind them a low-level hum of mild to moderately inappropriate conduct.  Not the stuff of scandal or outrage, this kind of behavior might be isolated to the occasional sexist comment, inappropriate joke, or racially wince-worthy reference.  Because of the level of status, power and authority waged by HLP’s it is safe to assume that many incidents of inappropriate behavior were not reported or addressed directly, and those incidents that did come forward were slightly below the line in terms of anti-harassment policies.  Not pervasive or severe, the conduct might have been addressed by a letter of reprimand or a stern talking-to.  Nevertheless, eventually, the HLP with a propensity for off color humor, inappropriate flirtation, sexist comments or bullying management style reaches a tipping point.  Someone, often in-house counsel, decides that it is time to call this HLP to account, and to tell them the time has come to clean up their act as a condition of employment.

As a coach, ones first impression might be extremely positive.  How wonderful to have the employer insisting on the coaching, and even suggesting that the HLP’s future employment relies on successfully making change. Leverage is a great thing!  Then, as I contemplate further, I realize the dilemma; this is the same employer that permitted and even enabled the conduct all along.  Inevitably, when I begin the coaching, the first thing I must help the HLP work through is their feeling of betrayal by their organization and their perfectly understandable frustration in trying to really grasp what the problem is.  I often hear, “I’ve been behaving this way for years and years.  Why is it a problem now?”  I try to have them understand the cumulative affect of their behavior, and often point out that when one gets pulled over for a speeding ticket that telling the officer you’ve been speeding on this road for years, and therefore should not get a ticket, is not a helpful thing.  Nevertheless, I recognize that they are coming to the table with some myopia, and try to be both empathetic and tough minded.

To coach the HLP, rich and deep data is essential.  I will read all records of complaints against them, and interview others who work with them and for them.  I will spend the first hour of our time together asking them to give me a detailed understanding of how they show up in their workplace and why we are having the session. I will push and provoke those accused of bullying to see what their triggers are and how easily they can be activated, and I will inquire about their sense of humor, quality of their workplace relationships, and conflict style.

These HLP’s generally aren’t sorry.  They are practical.  They want to know what they need to do to get past this speed bump and get back to work.  A good coaching process will change this.  One of the outcomes I look for is appropriate regret or remorse, and one of the ways we get there is to have the HLP play the role of someone whose boundaries they crossed.  Amongst the writing assignments HLP’s get in my coaching is to write a one page narrative of an incident that has been reported from the perspective of the target.  We read that together, and if they don’t get it right, they do it again.  Not being accustomed to being called out for failing to fulfill an assignment, the high achieving nature of the HLP often emerges, and it usually doesn’t take more than one new draft to get it right.

Finally, I have found that HLP’s do very well in the concrete, behavioral world.  Together, we generate a list of things that constitute “bad habits,” and we put together a plan for extinguishing them.  Just like quitting smoking or dieting, we put together a plan of substitutes for the inappropriate behavior, identify a support system to provide feedback and prevent backsliding, and use a variety of tools for monitoring change and progress.  When, for instance, the impulse to make a humorous remark emerges, we might substitute an open-ended question or a self-effacing comment.  Or the HLP might check in with a designated support person after a meeting to find out how they came across.

Over the years, I have found that there are several essential components to successfully coaching HLP’s.  They are

  • Cost.  Highly compensated people won’t value the coaching unless it is priced for its value.
  • Payment.  The HLP’s must pay for the coaching themselves, or at least split the cost with their employer
  • No confidentiality.  While they are the client, a report will go back to the employer describing the coaching, insights, and the likelihood of re offending.
  • Directive Coaching.  The counseling, polite, supportive, politicized world of the HLP means they rarely get direct, critical, unvarnished feedback.  As a coach, I have to have the courage to make these big players very unhappy with me.
  • Work.  Assignments need to be made and evaluated at a very high level.
  • Time.  The value of HLP coaching is that it neither goes on for months nor does it take big chunks of time.  Short, intensive sessions of a total of 3-4 hours are the norm.
  • Rigor.  Using instruments such as personality inventories and conflict style inventories to provide insight is helpful to break down blind spots.
  • Clear outcomes.  The session begins with the HLP committing to certain outcomes.  At times, they will ask for additional or different outcomes for personal reasons, this is fine, but one outcome that is essential is “manage behavior to ensure neutral or positive treatment of others.”
  • Support.  The organization is asking a lot of the coach.  They need to understand that miracles don’t exist, nor do personality transplants.  The organization may be part of the problem, and may need to agree to do a better job of monitoring and feedback going forward.

If you are interested in  HLP Coaching, please feel free to contact Sepler & Associates at 952-646-6181


Tragedy Reminds Us to Take Preventive Steps

October 1, 2012

(Prepared at the Request of Employee Relations Insight)

It has happened again in our community; the details are still fuzzy, but we do know that a terminated employee opened fire in his workplace, killing five and wounding others. What a terrifying experience it must be to be in your place of work and to have it transform so quickly from safe to life threatening. While some will call for gun control and the media will dissect every detail they can, employers should once again be reminded that this CAN happen here.

Workplace violence has many roots, but research tells us that the most fundamental reasons that people turn to workplace violence are as simple as 1,2,3

1) The personality of the high risk employee. Research tells us that the potential for violence is greatest in those with “trait anger,” which means they are always mad at something; chronic negativity, a tendency to embrace revenge as a legitimate response to an ill deed, and exposure to violence. Behavioral interviewing, giving candidates an opportunity to offer their reactions to scenarios, or to tell you how they have resolved conflicts in the past can open a window on to a person’s thinking about how to respond to a wrong they have experienced, or what they view as the most challenging interpersonal conflict they had to deal with. Check references; offer confidentiality if someone says they cannot tell you more than their hire date. Consider checking secondary references by asking the named referrer for someone else in their organization that has worked with the candidate. If you cannot get someone to be forthcoming, you can ask them to hang up if they would not hire the employee again.

Employees who discuss abuse, cruelty, punishment and the use of weapons frequently in the workplace should be viewed as risks and assessed. So too should substantial changes in demeanor as they may become sullen, withdrawn or aggressive.

2) The circumstances the employee is in. According to my old friend Harry Brull, a long time consultant with Personnel Decisions Inc, there is no evidence that employees “suddenly snap,” but instead there is deterioration under time. Two key experiences that might lead to violence in an employee is the employee’s perception that he or she cannot satisfactorily perform (or be viewed as satisfactorily perform) while at the same time, in some other part of his or her life the employee is also experiencing instability. Thus, an employee who is being asked to work with new technology and is not “catching on” might be frustrated and worried. If that employee is also involved with drug or alcohol abuse, or dealing with a family crisis, or anticipating a Reduction in Force, you have the combination of poor performance and instability that will combine with personality to incline someone towards violence. For this reason, when employees express concerns about the behavior of someone whose performance is subpar, or supervisors get “gut” feelings that someone is destabilized and failing, or when the employee’s attitude takes a serious nosedive, there should be an assessment of risk, consideration of a referral to EAP and determination about what can be done to assist the employee. Terminations should be handled with great care, off site and with the intention of offering the terminated employee hope for the future. If there is any concern about risk, an expert should be engaged to assist in the process.

3) The environment of the workplace can help “harden” against potential violence. As a matter of practice, employees should be taught a code word or action that can be used to signal risk in customer service areas. In one organization I worked with, turning a particular lamp on or off in the reception area was a code for “need help.” Lockdown procedures, lines of egress and emergency evacuation procedures should be as routine as fire drills. Building security should always be a concern, and keys and passes should always be collected from departing employees. Supervisors should be well trained to understand high risk situations and be able to seek assistance in managing them. People who engage in workplace violence have access, familiarity with the environment and the factor of surprise and lack of preparation in their favor. Particularly when there has been a recent termination, the measures described above should be enforced.

Not every incident of workplace violence can be prevented, and certainly nothing contained here is intended to blame the tragic victims here in Minneapolis or anywhere else. Rather, let’s use this as an opportunity to remember that so often, when these crises happen, people look back and say “I knew something was amiss.” Review your plans, train your supervisors, and screen your employees well.


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.


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


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