Workplace investigations can be complex and time-consuming, fraught with difficult emotions and sensitive issues, but they’re a vital part of a fair and respectful workplace. In cases of alleged misconduct or discrimination, they’re your route to uncovering the truth. They’re also your organization’s first line of defense against litigation, which is why it’s so important to get them right.
There are many employee issues that warrant an investigation, but in today’s post #MeToo world, sexual harassment is the most high profile. Unsurprisingly, since #MeToo went viral in November 2017, there has been a significant increase in the number of employees coming forward with harassment claims. When we spoke to ER professionals at 158 enterprise organizations late last year for our special #MeToo in the Workplace Report, 53% reported a rise in harassment allegations, with a similar percentage (45%) expecting the number of allegations to grow in the coming year.
Clearly, more employees making allegations means a greater requirement for organizations to step up and investigate the claims. And while every employee investigation is unique, your team can ensure a fair outcome by following the same fundamental principles.
Create the Right Environment
Prevention is better than cure, and workplace policies are essential in establishing what is and isn’t acceptable behavior in the workplace. Policies should also outline a clear process so that people know exactly how to file a complaint, to whom it should be filed and what steps will be taken if they do. However, policies alone aren’t enough. According to Jonathan Maude, Partner in the Labor & Employment group at global law firm Vedder Price, businesses need to have ‘live’ policies that staff know exist for their use. Managers are crucial in bringing HR policies to life and the right training helps ensure they understand what they are and how to implement them fairly. Your onboarding process should also cover company policies so that new employees know what’s expected of them from the get-go.
Generally the first sign of a serious issue or policy violation is an allegation. The key is to create the kind of environment in which employees feel they can come forward and will be listened to, without blame and without retaliation. Employees’ other option is to make a complaint to a third party like the Equal Employment Opportunity Commission (EEOC), but by encouraging them to report issues internally, you have the opportunity to understand what is wrong and to ultimately resolve it.
As one example, healthcare organization Texas Health Resources actively promotes a ‘speak up’ culture. Employees are expected to report harassment when they see it, even if they aren’t personally involved. Managers, in turn, are required to report the allegation to HR.
Making it easy for employees to report issues can also make a difference, and a growing number of organizations are turning to technology to help. Google, for instance, has launched a new internal portal in response to demands from its employees for ‘a clear, uniform, globally inclusive process for reporting sexual misconduct safely and anonymously’. A whole host of apps and platforms are also emerging, designed to help employees overcome their fear of reporting issues at work. One particularly innovative solution is from British start-up Vault. It uses blockchain technology to provide a permanent ‘vault’ for employees to record an issue and store any evidence, which they can send to HR at any time. Vault also flags up if someone else in the same organization has reported a similar incident or individual, giving people the courage to come forward.
DNA of an Effective Investigation
There are some instances when a workplace investigation isn’t necessary, such as if the complainant and accused agree on what happened. However, if you do need to investigate, which our infographic can help you determine, the benefits of getting it right can’t be understated.
A well-run investigation not only helps decide whether any action needs to be taken, it also builds trust with employees who feel that their concerns are being taken seriously while limiting your organization’s exposure to liability. Currently, only 41% of organizations have required practices in place for conducting workplace investigations. However, our research suggests that this will improve, with an additional 10% planning to make the transition to required practices in 2019.
Organizations are also upskilling their staff to conduct investigations more effectively; 49% have enhanced their investigations skills training, or are planning to in the next year.
So, what are the core components of a solid, defensible investigations process?
Thorough and efficient
Timeliness is of the essence. In situations of conflict, the temptation may be to delay difficult conversations. But when an allegation has been made, being responsive and taking prompt action is key. Failing to act quickly could be considered prejudicial to the employee and result in potential claims; it can also allow bad behavior to fester.
Taking swift action doesn’t mean rushing, though. You still need to take the time to define your objectives and develop a proper plan. Your plan should identify all aspects of the investigation including: what will be investigated; who will be conducting the investigation; what evidence needs to be collected; what documents need to be reviewed; and who will be interviewed and in what order.
Impartial, without judgement
It’s important for HR to remain impartial and consider both sides of every allegation, without prejudice. The age discrimination case launched by former IBM VP James Castelluccio is a cautionary tale of what can go wrong when bias creeps in. The judge harshly criticized IBM for its internal, one-sided handling of the case, to the extent that he blocked HR from submitting its report as evidence in the trial which, incidentally, ruled in Castellucio’s favor.
To ensure objectivity, consider your choice of investigator with care. If you don’t feel able to remain impartial, identify a suitable colleague who has no personal involvement in the case or, if this isn’t possible, consider bringing in external help.
Whatever the allegation, you should approach each investigation in a standard way. It is not uncommon for employees to perceive HR as working towards the outcome that is most favorable for the company, which can skew the employee’s views of the legitimacy of the investigation. Following a consistent process keeps any such concerns at bay and demonstrates to interviewees that you are dealing with the issue fairly, leading to impartial and consistent outcomes.
An employee relations technology solution is an effective way to ensure that you use the same, standard approach every time. It can even guide you through the key steps, providing interview protocols and templates to keep you on track and provide peace of mind. Currently, 38% of organizations today are using technology specifically developed for employee relations management.
Clear communication is vital throughout the investigations process to provide transparency and maintain the trust of everyone involved - the complainant, the accused and any witnesses.
This starts with setting clear expectations of what the investigation will involve and ends with communicating the outcome once the investigation is complete, with lots of clear and open communication in between. A thorough investigation takes time and the wait can be both frustrating and stressful for all those involved. It’s good practice to check in with all parties periodically, so that they know they haven't been forgotten and that you will be monitoring the issue even after the investigation is over.
Interview Best Practices
Interviews are the cornerstone of employee investigations. Done well, they can provide a clear understanding of an incident, corroborating or disproving an allegation, and help you decide if and what action should be taken. Performed badly, they can expose your business to claims of unfair treatment and litigation.
Prepare, prepare, prepare
Successful interviews hinge on careful planning, and that begins with considering who you need to interview and in what order.
As a general rule of thumb, HR attorney Jessica Walberg of Ford & Harrison, LLP recommends interviewing the complainant, the accused, any witnesses and then finally the complainant again. This allows you to re-examine their original account using information revealed in the interviews. However, every situation is different and will need to be assessed relative to the allegation.
You also need to think through the questions you’re going to ask the interviewees. To help create an even playing field, you should have a standard set of questions that you use during investigation interviews. You can then supplement these with questions specific to the case.
Uncover the facts
Start interviews by outlining the candor and integrity you expect from all parties when answering questions – and the consequences if they fail to comply. This lays the ground rules and demonstrates that everyone is being held to the same standard.
Asking strategic, well-crafted questions will help you uncover the truth. Questions that require a simple ‘yes’ or ‘no’ response will only take you so far. The best approach is to start broadly and ask non-threatening questions before moving on to the details. In a SHRM article on detecting lies and deception, Michael Wade Johnson, founder and CEO of Clear Law Institute, recommends using a relaxed conversational style to encourage interviewees to open up. He also suggests asking interviewees to tell their story in reverse order, from finish to start, which is easy if they’re telling the truth but more difficult if they’re working from a memorized script.
Asking follow-up questions or rephrasing questions is a good way to examine and verify the facts for greater accuracy. You should also review the interviewees’ accounts against available evidence – which might be in the form of emails, records, or other documentation.
We outline more tips for getting to the truth in employee investigations on the HR Acuity blog Key Steps to Ensuring Honesty During Investigations.
Bear in mind that it’s not just what the interviewees say, but how they say it, and how they act, that is revealing. Paying special attention to body language can highlight when an interviewee is being less than truthful, indicating when you should dig deeper.
Document to substantiate
It’s not enough to do the right thing in an investigation. You also need to evidence it by keeping clear and detailed documentation throughout. A defensible workplace investigation case file should include a comprehensive investigation report, with legible and logical interview notes and supporting documentation – with names, dates and locations – and the actions you intend to take.
Having the right documentation provides a formal record of the entire investigation. It also demonstrates procedural fairness, protecting your organization in the event of legal action.
Reach a resolution
With the interviews complete, you now need to decide on the merits of the claim and, if you find evidence of misconduct, the most appropriate action – whether it’s a written reprimand, a short suspension or even termination.
To help ensure fair and consistent remediation, take a close look at any data you hold on identical or similar cases in your organization and how they were handled. For example, if you previously suspended a manager who made sexist comments but are now firing a supervisor for making equally inappropriate remarks, you may open yourself up to possible litigation.
Whatever you decide, it is important to document the conclusions you reached, the rationale behind them and any remedial action. This shows that you exercised due diligence and acted fairly.
Updating all parties on the outcome helps close the loop. This includes letting the complainant know if you found merit to the allegation and, if you did, the steps you’ll be taking to address it. Follow up with the involved parties a few weeks later to check that the offending behavior has stopped, no retaliation has occurred and remediation was successful.
The Best Investigation is No Investigation
In an ideal world, organizations would avoid, or dramatically reduce, the need for investigations in the first place. In the case of sexual harassment, progress rests on a fundamental shift in culture – and that’s going to take time and effort.
When we spoke to ER professionals for #MeToo in the Workplace: A Special Report, we were surprised that more organizations aren’t taking the opportunity to reach out to employees about #MeToo through communications initiatives or to review and update their policies.
What they are doing, however, is stepping up their efforts to track and report on harassment. Almost 60% told us that their organizations have initiated enhanced tracking or are planning to begin tracking harassment numbers in the coming year, while over 45% of those organizations publish or plan to publish metrics on harassment incidents. This is encouraging; it shows that organizations are taking #MeToo seriously and being more transparent about what is going on in their workplace. Tracking where they are today also provides a yardstick they can use to measure future progress. Training is another area where we’re seeing change, with companies focusing not only on investigations skills but also on bystander and unconscious bystander training.
These are all steps in the right direction but it’s going to take more action from more organizations to make a real difference. Even then, you can’t stop every employee relations issue from happening. However, you can do what is right to protect your people and your reputation. Now is the time for our industry to step up and ensure that workplaces today are safe, respectful and fair for all employees – whoever they are.
Ready to manage employee relations the right way? Schedule a demo to learn how HR Acuity can equip your organization with a better way to handle your workplace investigations.
Deb Muller is the CEO of HR Acuity, a technology solution that combines documentation, process, and human expertise so organizations can meet the challenge of managing employee relations in the modern world. Be proactive. Manage risk. Create a safer workplace.