Investigating Further

A few questions from the Upper Midwest Institute ended up on the bottom of my briefcase, and were found only when repacking for a trip out of town.  My apologies, and here they are:

After much research and preparation I was heavily criticized by Union counsel for asking open ended questions to an employee about that employee’s conduct.  Union claimed that I baited the trap and “caused” the employee to get into bigger trouble — the employee lie about illegal conduct and was fired, primarily for illegal conduct, not the lies–GOOD OR NOT?

It sounds like counsel was unhappy with the outcome, but I disagree that asking open ended questions is in any way improper.  Without beginning our inquiry with an opportunity for a witness to tell us THEIR story in THEIR words, we run a far greater risk of appearing to “put words in their mouths.”  If, in response to an open ended question, and employee truthfully and remorsefully “comes clean” with misconduct, it could actually end up with a more favorable disposition for the employee, so the open ended question, in essence, cuts both ways.

Do you recommend specifying that employees cannot have an attorney present in your (checklist?)

I don’t include this is in my checklist.  Most employees don’t ask to have an attorney present, and if they do, I explain the company’s policy.

Does an intake form need to be kept in a separate file from the employee file or the supervisor form?

I recommend that supervisors keep intake forms in a file that is chronological.  Once a year, the forms should be archived according to organizational policy.

What are the qualities of a good investigator?

Here are some of my top ones:

• Quick thinking
• Be analytical but also intuitive
• Extremely verbally facile
• Good multitasker
• Strong willed and courageous
• Adaptable
• Be able to see the big picture as well as the details
• Curious and inquisitive (aka nosey!)

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.

1-4 Almost certainly manageable internally

5-9 Consider using outside investigator

10 Recommend outside investigator

The table above can help you decide whether you need an outside investigator. Consider all of the dimensions listed, add up the score, and use the guide to help you decide.

I love the employment law institute — it is an opportunity to reach a large group of people with information that I love to share.  Today’s session was on investigative interviewing, and, as usual, there were more questions than I can answer.  So, here come some of the ones I was unable to get to.

Oh, and a quick, shameless plug– all of this and more are covered in my new book.  Just check the next post down for a prepublication discount!

Do you have recommendations regarding documentation of the interview?  What format?  How long?  How to retain?

An investigator’s notes serve many purposes, but none more than the essential and fundamental reason we take notes — so that we can accurately reconstruct what was said after a period of time has passed.  Every investigator develops their own style and approach to note taking (and that is a subject of a full seminar in itself,) but what is abundantly clear is that whatever they look like, they should not be destroyed.  Your original notes should go into the file and reside there for the life of the file.

Since some people are not up to taking notes with the kind of detail they would like, it is perfectly acceptable to go back through your notes and to make additional notations immediately following the interview.  You must, however, make these notations in a manner that distinguishes the after-added content from the original notes.  By doing this you can honestly attest to having written things following the interview, and you can demonstrate that the additions clarify but do not substantively change your notes.

Some people who take handwritten notes subsequently type them up.  This is fine, if time consuming.  Remember, the test is not whether the notes look pretty — it is whether they allow you, months or even years later, to reconstruct what was said.  Of course, notes should also contain the date, time and place of the interview, who was present and list any documents collected.

You should have a data retention plan that covers investigative files, and your notes should be part of that file.

How do you deal with a witness who wants to ask you, the interviewer, a lot of questions.

Hmmm.  My first instinct is to say “try to answer them,” but I read into this question the possibility that a witness is asking questions that would be inappropriate for the interviewer to answer, such as questions about sources of data, or questions about other matters that the witness is not entitled to.  As far as questions about the process, answer away.  The checklist I recommend often heads off a lot of those kinds of questions.  There are also a series of questions that you should expect to be asked - such as whether a person can have someone else present, whether they will get a copy of your report and whether they can tape record the interview.  If you don’t know the answer to these tough questions now, quickly find out the answers prior to your next investigation!

When questions begin to veer into territory that is unproductive or merely combative, you might say to the witness, “I know you have a lot of questions, and by the way you are asking them, probably some anxiety about what’s going on.  I will give you all of the information I can, but as these things go, sometimes we just have to recognize that as an employee, our employer expects us to cooperate, and sometimes without knowing everything we would like to know.”

Do you think it is better for HR or the manager to do an investigative interview

Assuming the manager is the “decision maker,” and will have to select a plan of action, I generally recommend that managers only conduct simple or preliminary interviews.  It is important that the person doing the interview/investigation can credibly show neutrality, or at the very least, an arms-length view of the subject.  Managers are too easily caught up in bias,  or lack sufficient time or training to conduct investigations without special and very focused training.

Should the employee have legal representation at the interview?

Most employers take the position that employees are not entitled to legal representation in an internal investigation.

Our organization has a policy that all supervisors have full glass doors on their office — presumably to avoid allegations of impropriety with employees that they supervise.  Why move an employee meeting to a private area when the office is the designated place for such meetings.  Which risk is greater?  Accusation of impropriety or privacy during a conversation.

This question comes in response, I believe, to my assertion that interviews should be conducted in a private area.  I do believe that investigative interviews are distinct from “conversations.”  The organization is bound to operate on a “need to know” basis, and it does not seem that every employee walking by needs to know who is being interviewed as part of an investigation.  Secondly, claims of misconduct bring about emotions such as fear, sadness and anger.  The expression of these feelings in an investigative interview is commonplace.  Most employee would feel exposed or embarrassed in a semi-public setting either showing these feelings or seeing someone else in an emotional state.  Thus, my fear would be that being exposed to the world might chill or suppress some honest disclosure.  Finally, if I think about, say, complaining about my coworker, the idea that the very same coworker could be standing outside watching me do so is a very unattractive idea.  In twenty years of doing investigations, my conduct during the interview has been raised fewer than five times — so I guess if I had to pick privacy v. accusations of impropriety, I’d take the former.

That’s all for tonight folks.  More tomorrow and over the weekend!

It is here!  My new book, a comprehensive guide to conducting employment investigations, is now available for pre-publication purchase!  See the details and an excerpt here.

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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.

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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Sepler & Associates

PO Box 16364

Minneapolis, MN  55416

Phone: 952-646-6181

Fax: 952-646-6182

I don’t like to think of myself as cynical. Furthermore, I am a huge proponent of creating workplaces that allow people to be creative, empowered and engaged. Nevertheless, I find myself repeatedly listening to high-aspiration employers who describe their cultures in glowing terms, but are confused, bewildered and betrayed when unhappy or departing “team members” suddenly transform into plain old angry employees. Having built brilliant and progressive cultures focused on the talents and skills of their “family,” they have been blindsided by the stark reality that when things are good, we are a family, but when things go wrong, they are the employer.

Take, for example, a company I worked with a few years ago; although most of their work was unskilled, repetitive labor, they had embraced a lot of upscale thinking about workplace culture. They had bought the videos, trained the team leaders and done the cosmetic things that shout “we are a great company!” Some of the giveaways of this kind of thinking tends to be “creative” workspaces, generally very colorful, open and egalitarian; casual attire, goofy ’stuff,’ in this cases lots of bicycles, razor scooters and in-line skates hanging by the doors for employees to whip around the warehouse, and video games in the break room. Monday morning huddles and open door policies were matched with generous fringe benefits and killer company events. Jan and Dave,The owners were positive, visionary, energetic people who were rightly proud of the dynamic, exciting workplace they ran, and their record of retaining people for nearly thrice the industry average.

The problems began when Roger, a long time team member, began to slack off. Roger had been hired as a line worker, had steadily progressed through promotions and was now a team leader. He was a big man, colorful and funny, and viewed as a key player in sustaining a positive culture. His marriage was on the rocks, his eldest child was in trouble with the law, and his attendance and performance were slipping. Ever supportive, everyone pitched in to help Roger through his rocky time, but after 6 months of declining reliability, the support was wearing thin. Jan had taken Roger out for lunch and told him things needed to shape up, but also averred that she herself had gone through a rough patch with Dave some years ago, and was extremely sympathetic. She granted Roger a one month leave of absence with pay so he could work things out. Upon his return, however, things were no better and Roger had begun to speak negatively of his employer. Dave and Jan expressed their disappointment in him, and hired a powerful leadership coach to work with Roger. The coach told them that Roger needed “time and patience.” Every loyal to their long-term team members, Jan and Dave waited.

One year after problems with Roger began, a highly recruited new employee came to Dave and indicated that he was resigning. He told Dave how disappointed he was with the “real” workings of the company and its failure to live up to its cultural promise; he described demoralized coworkers, sarcasm and cynicism over cultural symbols and rituals, and serious problems with product quality and reliability. While Dave first dismissed the departing employee’s feedback as inaccurate, he and Jan decided to “take the temperature” of their workforce. After talking informally with some workers, and following up with tight scrutiny of their operations, it became clear that many of the problems in their production area (and there were VERY many) could be tracked to Roger’s performance. Reluctantly, they decided it was time to let Roger go. With what they considered to be great respect for Roger, they terminated him, offering him outplacement counseling, a month’s severance and a positive recommendation. Read the rest of this entry »

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!