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HR Handled Right

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Between 2007 and 2012, the number of complaints filed with the EEOC increased by more than 50%, with the second most common disability claim under the ADA involving a psychiatric illness. In fact, mental impairments account for 11.7% of the ADA claims and include depression, anxiety, post-traumatic stress disorder and bipolar disorder.

Anxiety disorders, in particular, are exceedingly common. Although most people who develop an anxiety disorder feel alone, frightened and – all too often – “crazy,” the reality is that anxiety disorders are the most commonly experienced mental illness. Forty million people in the United States – 18% of the adult population – experience an anxiety disorder at some point in their lives.

Symptoms can range from a chronic sense of worry and tension to unwanted and intrusive obsessions and compulsions to spontaneous bursts of severe anxiety with accompanying physical sensations such as a racing heart or shortness of breath. Some sufferers can pinpoint the source of their anxiety; for others, it remains a mystery.

Bringing Anxiety to Work

One of the most frustrating aspects of many anxiety disorders is the unpredictability of their symptoms. For sufferers, this can feel like perpetually waiting for the other shoe to drop. For the employer, whose business depends on predictable and consistent performance and attendance, it can be disruptive and frustrating as well.

However, most anxiety sufferers perform well at work. Many do not need accommodations at all, having learned ways to cope with their anxiety symptoms through trial and error, treatment, or a combination of both. Others require minimal assistance, i.e., a short-term flexible schedule to adjust to a new medication or an organized supervision style with regular meetings, clear assignments, and advance notice of unexpected changes. In fact, given the prevalence of anxiety disorders, it is highly likely that you have a coworker who successfully manages symptoms that no one s/he works with is aware of.

Just Give Me More (and More) Time

Much less frequent is the employee who uses his or her diagnosis to create more favorable (or convenient) work conditions. This is the employee, for example, whose use of intermittent leave routinely happens on a Friday or around a holiday, or who routinely requests a change of supervisor because his current one makes him nervous (While a change in supervision style can be a reasonable, and often effective accommodation, a change in supervisor may not be).

The best way to eliminate these situations is to a) have a clear absenteeism policy with call-in guidelines; b) track absenteeism patterns and, during medical certification, include any unusual pattern with the employee’s job description and ask the physician whether the employee’s diagnosis would create this pattern, and c) make sure job descriptions clearly outline interpersonal expectations (such as getting along with peers and managers) as essential job functions.

Don’t Worry; I’m (Trying to Be) Happy

Then there’s the flip side; the employee who keeps insisting she’s fine when she’s not. This is the employee who keeps coming to work even though she repeatedly falls apart, seeks out several coworkers to help her, and has to be taken by ambulance to the emergency room. Whether it’s because she’s fearful of losing her job if she takes time off, or in denial about the seriousness of her symptoms, she just doesn’t seem to grasp the limitations that she currently has.

In this situation, a first step is to encourage her to get the help she needs. Consider open questions that will encourage an employee to request support or accommodation. At the same time, remember that your job is not to probe into an employee’s personal life, to diagnose a problem, or to act as their counselor (It’s possible to have a conversation about this without ever mentioning the word “anxiety” or “mental illness,” i.e., by focusing on her behavior at work and the impact it is having on the people she works with.)

Make available whatever company resources you have to assist her. If she decides to pursue FMLA, make sure you provide the doctor with a copy of the job description and the employee’s attendance record; as many as one out of every three anxiety disorder sufferers also have a substance abuse problem and a Friday/Monday pattern of absences may be an indicator. You might also want to ask for a very specific return-to-work note.

The Bottom Line

Invisible disabilities like anxiety can’t be seen but they are surely felt – by the sufferer as well as those around him/her. Fortunately, they are also highly treatable; in fact, all of us work with individuals who have successfully dealt with anxiety or depression. With a little flexibility and adequate resources, employers can help anxious employees return to a more productive and happy state by focusing on whether and how they can accommodate them rather than whether or not a certain medical condition is a disability.

Companies also better take a second look at their job descriptions and address, where appropriate, the emotional stamina requirements of a job. This is important because, under the law, employers do not have to eliminate essential requirements, only how they are performed. If a job requires the ability to work long hours or with little supervision, make it clear. Not only will this provide some legal protection, it can help applicants who aren’t able to meet these demands to opt out before they fail.

September, 2012. A newly fired employee brings a pistol into Accent Signage Systems in late September, killing six people doing work there at the time. Gunman Andrew Engeldinger, who family members said struggled with mental illness, then took his own life.

October 2012. Days after hairstylist Zina Daniel Haughton obtained a four-year restraining order against her husband she planned to divorce, he stormed into the upscale Azana, killing her and two of her coworkers (and wounding four others) before killing himself.

November 2012. Lawrence Jones, a meat-packing employee who had been discharged from parole six months previously, methodically shoots coworkers at a Fresno, California plant, killing two instantly and critically wounding others. When his ammunition runs out, he goes back to his truck, reloads, and kills himself.

A Different Meaning of Workplace Safety

Many of us still think of faulty equipment or dangerous job assignments when we think of worker fatalities. However, the latest statistics from the U.S. Department of Labor show that nearly 1 in 5 workplace deaths are due to intentional violence, not accidents. In fact, thousands of employees are harassed, intimidated, threatened or physically attacked each day. And, just as employers can face fines and penalties for not following OSHA safety standards, so, too can they suffer financially if they fail to take steps to protect their employees from a potentially dangerous coworker.

In fact, employers who fail to conduct a workplace investigation when faced with a threatening situation often lose any claims or lawsuits brought by the employee or their families after a violence incident occurs. The average out-of-court settlement is over $500,000.00.

What is a Threat?

Mass murders, while horrific, are rare events. Much more common are the threatening or bizarre behaviors that precede it – the veiled threat, talk of suicide, intimidating interactions, or angry or erratic responses. Dealing with threats and/or threatening behavior—detecting them, evaluating them, and finding a way to address them—may be the single most important key to preventing violence. Webster’s Dictionary defines a threat as “a statement or expression of intention to hurt, destroy, punish, etc., as in retaliation or intimidation.” But who determines when an intention to hurt has been expressed?

On the one hand, a purely subjective determination—a threat is whatever makes someone feel threatened— doesn’t help much, since different people can respond differently to the same words or acts. Employers need to provide some guidelines on what behaviors can reasonably be perceived as alarming. On the other, employees can and should be held responsible for a reasonable regard for the feelings and concerns of coworkers and others in the workplace, and employers properly have an obligation to make sure employees do not feel frightened or intimidated. The best definition of a threat must provide explicit standards of behavior and as well as a respect for the employee’s feelings.

Assessing the Threat

The goal of threat assessment is to assess the likelihood that the threat will be carried out and, based on that determination, plot an appropriate course of action. It involves both an evaluation of the threatener as well as an assessment of the threat itself. Here are five of the main areas I evaluate during a workplace threat assessment and some of the questions that help me find the answers I need:

  1. The exact nature and context of the threat and/or threatening behavior.
  • Has the offender spoken of homicide or suicide?
  • What has been said to others, i.e. friends, colleagues, coworkers, etc., regarding what is troubling him?
  1. The identified target (general or specific).
  • Has the offender identified a specific target?
  • Has he communicated with others his thoughts or plans for violence?
  • Is he obsessed with others or engaged in any stalking or surveillance activity?
  1. 3. The threatener’s apparent motivation.
  • Why has the offender threatened, made comments which have been perceived by others as threatening, or has taken this action at this particular time? What is happening in his/her own life that has prompted this?
  • Has he received unfavorable performance reviews or been reprimanded by management?
  • Is he experiencing personal problems such as divorce, death in the family, health problems, or other personal losses or issues?
  • Is he experiencing financial problems, high personal debt, or bankruptcy?
  • Does he feel he is being treated fairly by the company?
  • Does he have problems with supervisors or management?
  • Is he concerned with job practices and responsibilities?
  1. 4. The threatener’s ability to carry out the threat.
  • Is there evidence of substance abuse or mental illness/depression?
  • Has the he shown an interest in violence through movies, games, books, or magazines?
  • Is he preoccupied with violent themes; interested in publicized violent events; or fascinated with and/or recently acquired weapons?
  • Does he have a past criminal history or history of past violent behavior?
  • Does the offender have a plan for what he would do?
  • Does the plan make sense, is it reasonable, and is it specific?
  • Does the offender have the means, knowledge and wherewithal to carry out his plan?
  1. 5. The threatener’s background and personality.
  • The threatener’s work history, criminal record, mental health history, military history, and past behavior on the job.
  • How does the offender view himself in relation to everyone else?
  • Does he feel he has been wronged in some way?
  • Does he accept responsibility for his own actions?
  • How does the offender cope with disappointment, loss or failure?
  • Does he blame others for his failures?
  • How does the offender interact with coworkers?

The Bottom Line

In spite of the increased awareness of workplace violence, many companies tend to treat threatening situations internally. In fact, according to the Bureau of Justice Statistics, less than half (only 44.2 percent) of violent victimizations that happen at work are reported to the police. This is alarming given the risk that these smaller incidents can escalate into more violent ones. By failing to utilize external resources trained to assess workplace threats, employers are rolling the dice with their employees’ safety.

Fortunately, the odds are in their favor; most workplace threats don’t lead to mass murder. However, the stakes are unacceptably high. it only takes one lapse of judgment for a manageable threat to lead to homicide.

You’ve seen him in movies on TV; the veteran who returns home a loose cannon, unpredictable and violent. You’ve read about him in the news; the soldier who goes berserk and kills 16 innocent civilians or mows down his comrades. And now you’re worried he (or she) might show up at your office for the next job interview.

Hidden Fears of Hidden Wounds

An estimated 17 percent of Iraqi and Afghanistan war veterans come home with post-traumatic stress disorder. Eight out of every 100 civilians also suffer from it. So we can look at the glass as half-empty or half full; the vast majority of returning soldiers don’t have PTSD, or combat veterans are twice as likely to have it in comparison to non-military peers.

The unemployment rates for veterans suggest that many hiring managers prefer to err on the side of caution. Their average jobless rate in 2010 was 11.5 percent compared with 9.4 percent for nonveterans. Younger veterans fared even worse — 20.9 percent compared with 17.3 percent for nonveterans.

In some respects, employers feel caught between a rock and a hard place when it comes to hiring returning combat veterans. On the one hand, most of us feel grateful to our brave soldiers, who have been on the front lines fighting to preserving our freedom. In addition to the patriotism than can lead employers to favor hiring veterans, we also recognize the character traits military service builds that can make them excellent employees.

On the other hand, this same sense of gratitude and duty can work against our returning veterans by making employers reluctant to seek out accurate information; after all, who wants to question the mental health of our military? All too often, this means ignoring the elephant that’s already in the room. In an anonymous June 2010 poll by the Society for Human Resource Management, more than half (53%) of responding HR professionals said they didn’t know if workers with PTSD are more likely to commit violence in the workplace. And a 2011 survey of 831 hiring managers by the Apollo Research Institute found that 39 percent were “less favorable” toward hiring military personnel when considering war-related psychological disorders

Let’s be honest; with weekly news stories about employees “going postal,” is a hiring manager who’s uncertain about the link between PTSD and violence going to take that chance?

Post-Traumatic Stress Disorder and Violence

First of all, the majority of people who experience a traumatic event don’t develop ongoing psychiatric problems. Those who do experience symptoms do so to varying degrees. These symptoms include severe anxiety, sleeplessness, nightmares, social isolation, emotional numbness, irritability and a feeling of being on guard. A key symptom: The individual relives a traumatic event when confronted with reminders or thinks about it when trying to do something else.

Among those who do experience post-traumatic stress disorder, the link between is unclear and indirect. For instance, a new study in the Journal of Consulting and Clinical Psychology found a correlation between some of the untreated symptoms of PTSD and criminal misbehavior. Interestingly, though, it wasn’t the PTSD diagnosis per se that was related to criminal arrests but rather PTSD sufferers who had a high degree of unaddressed anger and irritability. Similarly, there are plenty of pre-existing factors that can muddy the waters when trying to clarify the relationship between PTSD and violence; growing up in a violent home and a prior history of substance abuse increases the risk of aggression in veterans and civilians alike.

In reality, violence is uncommon among people with mental illness, and the rare instances that do occur are most often associated with other factors, such as active substance abuse or refusing to take medications. There are also protective factors that significantly decrease the likelihood of violence, such as effective mental health treatment, stable employment, and a strong support system.

The Bottom Line

Most veterans don’t develop PTSD, and the minority who do have the same kinds of reactions of people exposed to a hurricane or a car accident. Furthermore, it is treatable and rarely leads to violence. Employers who let their fears guide their hiring decisions are missing out on a wealth of talent (and may act counter to the law, a topic for another article). The best gift we can give our returning heroes is to hire those who are qualified for the job (not out of pity or indebtedness), assume they are mentally healthy (unless we are told or have evidence that suggests otherwise), and, if problems arise, focus on the behavior at issue rather than a diagnosis.

On May 23, 2003, John Ponsi, a teacher at Cliffside Park High School, was unexpectedly called into the principal’s office for a meeting with two students, who accused him of making racial and lewd remarks earlier that week. Another teacher at the same meeting accused Ponsi of pushing her. Four days later, the Board of Education notified Ponsi that he was suspended with pay, pending the outcome of an investigation and psychological examination.

However, no investigation was conducted. Ponsi was referred to a psychiatrist by his physician due to the depression and anxiety resulting from the accusations and suspension. In September 2003, Ponsi was also evaluated by Dr. Meyerhoff, a psychiatrist appointed by the school board, who concluded that Ponsi was unable to teach for the foreseeable future. As a result of that examination, the Board notified Ponsi that he was ineligible to teach until he provided proof of recovery and that, if his absence exceeded two years, his employment would be terminated.

On January 31, 2005, Ponsi’s psychiatrist notified the school in writing that he was ready and able to return to teaching. Not convinced, the Board sent Ponsi back to Dr. Meyerhoff, their psychiatrist, who concluded that, while his mood disorder had abated, he was unfit to return to work because he showed no repentance or remorse over the alleged lewd and racial remarks, or the pushing incident. In essence, the Board’s psychiatrist accepted all the allegations against Mr. Ponsi as true (even though no investigation had been conducted) and, in fact, interpreted Mr. Ponsi’s assertion to the contrary as evidence of paranoid delusions. Concerned, the Board decided not to reinstate Mr. Ponsi.

Why Should I Believe You if You’re “Crazy?”

The true story cited above illustrates one of the challenges (and potential pitfalls) employers face when investigating psychiatric disability discrimination claims. All too often, the stigma of a mental illness clouds how that person is perceived, not only by managers who don’t understand psychiatric disorders but professionals who should know better. In other words, the complaint process itself becomes tainted by the underlying assumption that the complainant, because of his or her mental state, isn’t able to see reality clearly and is thus distorting what happened or misinterpreting the evidence.

Just Go See the Shrink and Get Yourself Straightened Out

Employers can also fall prey to the assumption that a trip to the psychiatrist’s office is all that is needed to get the complainant to see the light. Certainly, there’s nothing wrong with offering up an employer’s EAP to a complainant who is dealing with the inevitable stress that filing a complaint generates. The devil, however, is in the details. Employers need to be clear that their recommendations or suggestions about psychiatric treatment aren’t interpreted as a thinly disguised version of blame-the-potential-victim.

They also need to be sure that the questions they ask in their investigation don’t cross the line into sensitive medical information or stray into unwarranted territory. Asking coworkers if they’ve ever felt that Bipolar Employee X was dangerous is understandable if you’re investigating alleged threats made by this employees; it’s completely inappropriate if you’re investigating complaints of cruel comments or teasing made to this employee.

The Bottom Line

Investigating psychiatric disability harassment or discrimination claims can be especially challenging, although not necessarily for the reason many of us assume they would be. Yes, some employees with psychiatric disabilities can be difficult complainants, but so can employees without a mental illness. In fact, in my experience, it’s the stigma and fear surrounding mental illness that gets in the way of a fair and objective investigation much more often than an irrational or “crazy” complainant.

However, employers must make sure that we are basing our employment decisions on the facts rather than beliefs and opinions, even when those beliefs and/or opinions come from mental health professionals. Employers who substitute professional opinions for investigations do so at their own peril. When you do need professional input, make sure you provide them with accurate and objective information is being provided.

I spent the first two years of my professional life working with people who initially saw me as the devil. These were mothers and fathers who had been ordered by the courts to either come see me or face losing permanent custody of their child, who was already in foster care due to allegations of abuse or neglect. My job as a clinical psychologist was to see whether or not the family was salvageable and, if so, to see if I could help put it back together.

Workplace investigations aren’t as adversarial as the court system but they do have some things in common – high stakes, multiple perspectives, and – sometimes –a strong motivation to lie. Two things I’ve learned from working with people under difficult circumstances – 1) people don’t talk to someone they don’t trust, and 2) even under the direst circumstances, most people will respond to genuine attempts to understand them. That being said, here are some of the strategies that help me establish rapport when I’m conducting an independent investigation:

  1. Acknowledge the emotions each person is feeling. Each person involved in an investigation has feelings about his or her involvement; the complainant may feel humiliated or scared, the respondent defensive or guilty, and witnesses may be confused or annoyed. Clues to these feelings are found in the way s/he tells his or her story; to ignore them is to ignore the elephant in the room. Acknowledging the emotional tone as well as the content of what someone is saying lets them know you’re trying to see things from his/her perspective – regardless of whether or not you agree with it.
  2. Establish your right to be there. You aren’t the only one with questions. At the top of the interviewee’s list is, “Why should I trust you?” Tell your interviewee why you have the right to be there based on your experience, expertise and empathy. I typically tell interviewees a little bit about my background as a private investigator and psychologist, specifically focusing on my experience as an unbiased, neutral party. If I’ve done work for the company before, I make sure s/he knows (without, of course, revealing specifics). If the HR person has a good rapport with the interviewee, I might have him or her introduce us. During the interview, I look for shared experiences that might help us connect, whether it’s the tough traffic we both experienced driving to work or a common educational experience. In other words, I do whatever I can to let the person know s/he is in good hands.
  3. Show an interest in the person, not just the process. After the introduction, I typically start an interview by asking general questions about the person’s day to day job functions or history with the company. If the interviewee has a difficult or unusual name, I ask him or her how to spell it. Yes, I already know the answers to these questions; I’ve already reviewed personnel files. However, the purpose of these questions is not to get answers; it’s to let him or her know I’m interested in him or her as a person, not just in relation to the specifics of the complaint.
  4. Remove physical barriers. There are countless psychological studies that show the unconscious impact physical barriers can have on our ability to connect with another person. Take them out of the equation; don’t sit behind a desk and choose a seat that is facing in the same direction as your interviewee. Similarly, think long and hard before putting objects between you and the interviewee; tape recorders often inhibit a person’s willingness to speak freely. This is one of the reasons I prefer to take notes instead.
  5. Forget mirroring. I always bristle when I read advice like, “Mimic the other person’s body posture and gestures.” It sounds so manipulative. Also, can we really be listening to the other person if we’re preoccupied with wondering whether enough time has lapsed before we can cross our right leg over our left just like our interviewee has just done? Trust me; if you’re really paying attention, your body will automatically communicate this – you’ll look the interviewee in the eye, you’ll lean forward slightly when the other person is talking, etc.

The Bottom Line

Interviews are the most important part of a workplace investigation and the ability to establish rapport one of the most critical skills. Establish rapport by easing into the interview, acknowledging the emotions as well as the content of what the interviewee is saying. Let him or her know why you have the right to be there and why he or she can trust you to be fair and objective. Make connecting with your interviewee just as important as getting “the truth;” after all, without the former, you won’t get to the latter. No one confides in someone s/he dislikes.


Workplace investigations are tough enough without the office grapevine gossiping about who did what to whom. As such, it’s standard practice to ask anyone who participates in an investigation to keep their mouths closed about what is discussed behind the closed doors. A new ruling from the National Labor Relations (NLRB), however, suggests that a blanket “keep your mouth shut” mandate may be improper.

The Case behind the Concern

Like many investigators, the HR director for Banner Heath Systems asked workers involved in an in-house investigation to not talk about the investigation with their co-workers. However, James, one of the employees involved objected that this request violated the rights of employees to discuss the terms and conditions of their employment with their coworkers. The National Labor Relations Board sided with James, saying that blanket requests for confidentiality during an investigation are overly broad and might have a chilling effect on appropriate – and legally protected – communications.

So what’s an Investigator to do?

This is a new ruling (July 30, 2012) and time will tell what this means from a practical standpoint. However, the NLRB’s ruling does offer some guidance. First of all, investigators can still ask witnesses to keep quiet as long as they have a legitimate business interest in making the request. This business interest must extend beyond the usual “we’re trying to protect the integrity of the investigation” reasoning.

So what business interest is legitimate? It is one that arises from that particular investigation. Perhaps, for example, the facts you’ve uncovered so far suggest that the accused might try to intimidate witnesses if s/he learns they will be talking to an investigator. Perhaps you haven’t had a chance to retrieve some valuable evidence and are concerned that, if the investigation leaks out, it might be destroyed before you have a chance to do so. Or perhaps you have reason to believe (again, based on what you’ve uncovered) that a group of witnesses might get together and “get their stories straight” before you have a chance to interview them individually.

In addition, when you do feel requests for privacy are warranted, limit the scope as much as possible. For instance, ask that the witnesses not discuss the investigation as long as it’s active or during work hours or on company property.

The Bottom Line

In every investigation, investigators walk a tightrope, trying to balance a number of competing interests. This recent ruling extends those competing interests to include the need to maintain confidentiality and employees’ rights to discuss the conditions of their employment. For now, the best solution during an investigation is to avoid blanket requests for privacy, articulate valid reasons for privacy requests when they occur, and make sure your requests are as limited as possible.


We’ve all worked with someone who seems hell-bent on destroying his career or someone else’s. Perhaps it’s the boss who is so narcissistic that she is unable to tolerate any hint of constructive criticism or negative feedback (and will hold a grudge if you’re brave enough to give it). It could be the employee who cannot see that his pervasive suspiciousness and distrust of others actually causes the hostile reactions he already expects from others. Or, it might be the subordinate who is unable to make even the simplest decision without the constant reassurance and input from others.

A personality disorder lies at the extreme end of the behavior continuum. No matter how maladaptive the thought, feelings and behaviors, the sufferer clings to them. This is true no how much external pressure there is to change, no matter how many problems the behavior creates. It’s as if the person is stuck in a rigid, ineffective way of relating to others and, instead of realizing the costs associated with it, blames others for the outcome.

Personality Problems and How They Grow

We don’t really know what causes personality disorders. We know they start to develop early (and are usually in place by late adolescence or early adulthood) and are probably a combination of some in-born behavioral dispositions in combination with stressful environmental circumstances. What we do know is that they develop independent of a person’s intellectual level (a highly intelligent person can have a severe personality problem) and are accompanied by a lack of insight.

Recognizing a Personality Disorder

I’m not a particular fan of psychiatric diagnoses unless there are very specific reasons (treatment recommendations, insurance reimbursement) for giving one. Certainly there’s never a need for us to diagnose a work colleague.

However, because of the interpersonal problems that can arise with these disorders, it can be useful to be aware of why a seemingly intelligent coworker or boss continues to act in a seemingly maladaptive fashion over and over again. And, of course, we must know how we can minimize the impact of our own career, especially if the problematic work colleague is our boss.

We’ll be taking a look at specific personality disorders and how to deal with them, but for now, here’s the take away:

  • A person with a personality disorder cannot, or will not, modify his or her behavior based on your feedback. As such, let go of any thoughts you may have of changing this particular person. You must focus on what you need to do to take care of yourself.
  • A person with a personality disorder is not a happy person. This is also not a person who is trying to torture you deliberately; s/he is trying to survive in the best way s/he has learned to do so.
  • Do not expect this person to operate by the same rules you do. This means that you must be prepared to set boundaries, back up communication with documentation, and, if necessary, find ways to remove yourself from the situation.
  • Employees with personality disorders always have positive personality traits and characteristics — otherwise, they would not have been hired in the first place — but the maladaptive and inflexible patterns can emerge under stress. As such, this is a time to especially be on guard.

The Bottom Line

We all know that doing the same thing over and over will get the same result. For some people, though, that “same thing” is all they know how to do. And, if you’re not careful, they’ll blame you for the result.


There isn’t a person alive who hasn’t said something in the heat of an argument that s/he didn’t really mean. Often times it’s a threat; a parent threatens too big a consequence or a spouse threatens to leave. Issued too often, these empty threats can certainly undermine a parent’s authority or a spouse’s credibility. However, all parties involved usually know the likelihood – often very slim – that the threatener will actually follow through.

But when threats enter the workplace, it’s a whole new ball game. There are jobs at stake, potential lawsuits to ponder, and two sides to every story. Over-react and you could lose a good worker (or a better lawsuit); under-react and you could lose lives.

Verbal Threats: When are They Serious?

The most serious verbal threats are those that are genuine, credible, and directed specifically at someone in the workplace; in fact, immediate termination should be the rule rather than the exception when it comes to the best response to these kinds of threats. However, evaluating the seriousness of even the most direct threats requires something of a judgment call.

For example, threats accompanied by specific plans about how the employee will carry them out are serious. Obviously, for an employee to provide that kind of detail suggests that this is not a spontaneous remark; this is someone who has thought this through. Similarly, threats of violence that are directed at, or include, members of the intended victim’s family are not the kinds of statements you would expect from a generally even-keeled worker.

Of course, it’s not only what workers say but how they say it. Threatening gestures add power and credibility to verbal threats. Telling a coworker, “I’m going to bash your head in” is going to feel a lot more threatening when uttered while waving a hammer. It’s also important to consider the worker’s track record; courts typically give normally well-behaved workers the benefit of the doubt while workers with a history of conflict or violence get less slack for a threatening comment. The same should be true of employers.

Err on the Side of Caution

When in doubt, it’s always better to take a threat seriously than not. No matter what the circumstances (family problems, history of mental illness), employers are not required to tolerate threats in the workplace and, in fact, can be held liable if they do.

Practically, this means taking whatever steps are necessary to ensure employees are safe. When immediate termination isn’t warranted, employers still have a lot of leeway in terms of ensuring a safe work environment. For example, as a condition of continued employment, an employee can be required to attend counseling, allow the employer to relate to the counselor what the work behavior has been, allow the counselor to confirm that the employee is complying with treatment, and sign a last change agreement. (The last chance agreement should spell out the communication between the employer and counselor, the expected behavior, and clearly state that dismissal for repeated behavior is not negotiable. You can also require a fitness for duty certification from the counselor, just as you would a medical doctor for a medical illness.

Teach Your Employees How to Report

HR often complains that employees don’t report workplace threats until it’s too late. Employees complain that managers, and HR professionals, don’t take their reports seriously. One way to bridge this gap is to educate your work force, not only on what behaviors should raise concern, but what information will be useful to HR in terms of deciding upon the appropriate response. As a minimum, threatened employees should report:

) When, where and at what time the employee received the threat;
2) What was the exact wording, if possible, of the threat;
3) What was his/her initial response to the threat;
4) Have there ever previous incidents with the threatening employee; and
5) Has the employee ever made any other threats?

The Bottom Line

Preceding the 2 million workplace assaults each year are 6 million instances of employees being verbally threatened. Clearly, being threatened by an employee is not that unusual; an effective response can ensure that the violence ends there.

Managers often fail to utilize one of their best weapons against discipline-related lawsuits – the manager’s unofficial employee file. There are many reasons this happens – the matter seems trivial, the conversation was informal, or the manager is busy. Regardless, a failure to create a paper trail of significant interactions with an employee can come back to haunt us, particularly when it’s time to lower the boom on an unproductive or insubordinate employee.

The Employee File

Employee files should be kept on everyone a manager manages. This file should be kept in a locked cabinet in a supervisor’s office; if a manager uses a computer to type his/her notes, they should not be on a shared drive. These notes are for the supervisor’s eyes only.

These employee files are extremely beneficial for keeping information chronologically up to date. When counseling is necessary, or performance appraisals or due, we’ll have information at our fingertips and need not rely on our past memory. This can also help us avoid the recency effect, i.e., the tendency to rely only on the most recent information when giving a performance review.

How to Document a Conversation

Virtually all managers give their employees oral notice about poor performance or minor misconduct. This notice can range from correcting an employee’s performance to noting an employee was tardy to verbally “warning” an employee that certain conduct is inappropriate and will not be tolerated. These warnings, given contemporaneously can be very effective in showing performance problems because of their immediacy. In fact, in cases where a manager contends that an employee had “some type of performance problem almost every day,” documentation of exactly these kinds of problems can be the most useful evidence.

Effective managers use different formats when taking notes for their employee file. In addition to documenting specific conversations, some managers keep lists of critical incidents (good and bad) that happen – accomplishments and contributions, problem areas and errors, and strengths and weaknesses. It can also be useful to keep track of an employee’s stated goals, ambitions and aspirations.

Such documentation should:

  1. Be as close in timing to the incident as possible. Ideally conversations should be documented on the same day they occur.
  2. Create a context for your conversation. Include the date of the conversation, the manager’s name and title and the employee’s name and title.
  1. Stick to the facts. Write down exactly what you said and exactly what the employee said.
  2. Include the “take away.” State the action plan you told the employee, being clear about the expectations you set for the employee to follow.
  3. If the conversation is a verbal warning, document this. In particular, be sure that you make notes of conversations even when it involves a meeting in which you presented the employee with a written disciplinary document or action plan. The document you gave the employee does not reflect the entire conversation about the issues discussed.

Too Much of a Good Thing

While most managers err on the side of neglect when it comes to documentation, it is possible to err on the side of overkill. Here are three examples:

1. Focusing only on the negative. Managers are often taught that documentation is for problems and, as such, fail to keep track of the positive. Not only can this skew an employee’s performance appraisal, juries don’t like to think that a manager is gunning for an employee.

2. Exaggerating. In an effort to highlight their concerns, managers often use dramatic words such as “always” and “never,” when documenting performance concerns. However, in reality, these can undermine your credibility (the employee is sure to point out the one time s/he was on time or exceeded expectations) and hurt you in court. It’s much more effective to stick to the facts to get your point across (Joe was late by at least 15 minutes on 13 out of the past 14 work days).

3. Over-documenting. A manager who documents everything may be perceived as harassing an employee through micro-management. While this isn’t against the law, anyone reviewing a file that apparently documents every insignificant detail is more likely to conclude that the organization is not a nice place to work or that the documenter has a clear agenda. This is especially true when a manager has over-documented one employee’s performance, but has provided relatively little documentation regarding other employees.

The Bottom Line

HR managers can play a critical role in helping their managers develop a documentation system that includes informal conversations, contributions and problems. Obviously, no manager should document every conversation with an employee. But where a problem exists that would justify discipline if it was recurring, some type of written documentation is needed.

Consider the following three scenarios:

Your manager finally sits down with Employee A to discuss her lack of clothing in the workplace. Instead of the satisfactory resolution you envision, she responds by complaining of sexually harassing comments by several of her coworkers. This is the first anyone has heard of it, in spite of the fact that you recently conducted a series of informal employee satisfaction interviews in which you specifically asked members of her team about inappropriate conduct.

Employee B’s hours were recently reduced because he refused to be cross-trained for another position to fill his time. He also has several reprimands in his file and, according to his manager, he was just told he was in danger of losing his position altogether. Today you receive a certified letter accusing several employees of sexual harassment.

Employee C was promoted to manager a year ago because of her outstanding work ethic and amazing technical skills. However, it has become increasingly obvious that her interpersonal skills are getting in the way of her ability to lead. According to her manager (who has come to you in desperation for help), he has bent over backwards trying to get her to soften her feedback to her direct reports and spent excessive time mediating between this manager and managers she is supposed to coordinate with in other departments. When you meet with this employee, she is initially defensive about her manager’s concerns. Then, out of the blue, she tells you that she believes her manager is retaliating against her because she has turned down his requests for dates.

Timing Matters

You have a very clear sexual harassment policy in place. You’ve trained your managers (and, hopefully, your employees) on what is unacceptable conduct in the workplace. You’ve encouraged them to come forward with any concerns. So, when mum’s the word until an employee’s back is up against the wall, it can be very hard to view a sexual harassment complaint with an open mind.

However, some investigators automatically assume that a complainant’s prior poor work performance or poor credibility on other issues is enough to support their decision that the complainant is lying. This is a big mistake. Even poor performers can be harassed, and there are a myriad of reasons – legitimate and otherwise – why a sexual harassment victim might wait until her job is in jeopardy before filing a formal complaint.

But Not as Much as the Facts

Much more relevant is the credibility of the complainant as revealed by the facts of the specific complaint. For example; a complainant tells you her deteriorating work performance is due to the sexual harassment she has suffered over the past several months and names several coworkers whom she has allegedly talked to during this time. Yet, when you interview them, you discover a) that the focus of these conversations centered around her pending divorce, b) at no point did she mention inappropriate sexual conduct and c) her difficulties with the allegedly harassing manager seemed to be due to his refusal to transfer her to a job site closer to her home.

On the flip side is the manager who denies ever engaging in inappropriate conduct in spite of the evidence against him. What comes to mind is the investigation I recently completed during which an employee accused her manager of inappropriate touching, a claim which the manager staunchly denied. There were no witnesses, the manager had a long and productive history with the company, and the families of the two parties were friends. And yet, in spite of the serious doubts about the complainant’s credibility, routine video surveillance clearly revealed the alleged conduct.

Avoiding Retaliation

If it is extremely clear that an employee filed a false complaint, then she/he can never be trusted. However, if there is doubt, and you now accuse the employee of making a false complaint, you will likely face a charge of retaliation. If you doubt the complainant’s veracity because of prior work related issues, have an independent investigation be conducted by a neutral organization. Allow that organization to draw its own conclusions without knowing about whatever credibility concerns that you have.

The Bottom Line

The timing of sexual harassment accusations is something that judges and juries take into account when assessing the credibility of accusations, but it’s only one element. If there’s strong evidence that sexual harassment took place, the case could survive the suspicious timing of the allegations. If the evidence is weak, the timing will work in your favor.