Subscribe To Us

Follow Us on Facebook

HR Handled Right

Purchase Dr Joni Johnston's eBook "HR Handled Right: Dealing with Dress Code Nightmares without Getting Sued" for only

$79.99

internal investigation

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.

 

Most internal investigation courses do a great job talking about the law and how it applies to offensive behavior complaints, but fail to educate their students on the psychology involved. Here are a few ways in which an investigator can follow the letter of the law and still lose:

Treat Your Employee as a Plaintiff

You may have the most laid-back company on earth, but as soon as an employee complains of sexual harassment, it’s a whole new ball game. Employment attorneys, whose job it is to CYA, immediately jump into litigation mode and begin to anticipate every possible legal curve ball that your employee could throw at them. This creates anxiety in HR professionals, which changes how they interact with the complainant.

The employee, who is already paranoid about what will happen now that she’s opened her mouth, has her worst fears confirmed. She feels like a pariah, she is left in the dark about what’s happening, and she is convinced that the retaliation she feared would happen has begun.

Ignoring the perception of bias

It doesn’t matter if you have the calm of the Budha or the rational mind of Socrates, if the parties involved think you are biased, then, for all intent and purposes, you are. Never think your stellar investigation will persuade them otherwise. There are ways to assess this at the beginning of the investigation; make sure you do. Otherwise, you run the risk of conducting an internal investigation, having a dissatisfied party, and then calling me to do another one.

Talking Like a Lawyer

“You are being terminated for sexual harassment.” Really? Last time I checked, sexual harassment is a legal finding that can only be determined in a court of law. The accused may be guilty of a violation of company policy or misconduct, but don’t call it sexual harassment. Only a judge or jury can decide this.

Focusing on the Wrong Issue

Yes, it is unbelievably frustrating when you’ve done everything in your power to encourage your employees to speak up – conducted highly interactive harassment prevention training, routinely asked your employees how things are going, queried about any interpersonal problems as part of the performance review – and your employee is silent as death. Silent, that is, until his performance is under the gun or you’re speaking to her about her tendency to under-dress.

However, now is not the time to express that frustration. I can’t tell you how many times I’ve been conducting an independent investigation and the complainant kept telling me how “all the HR person focused on was why I didn’t say anything before now.” Yes, the fact is relevant – it is pertinent when assessing the complainant’s credibility, it is relevant to possible motives, etc. However, don’t spend time interrogating your complainant about why she kept her mouth shut until now; it will come back to haunt you.

The Bottom Line

Conducting a good offensive behavior investigation isn’t just about following the law; it’s about understanding the psychology behind it.

One of the biggest challenges investigators face during sexual harassment investigations is deciding whether or not a witness is telling the truth. In fact, according to a 2009 article in Legal and Criminological Psychology, even judges aren’t’ so hot at it. And one of the reasons is the way most of us go about making credibility assessments.

For one thing, research indicates that we are heavily influenced by schemas (cognitive maps) we’ve developed based on our past experiences with similar individuals. The old adage, “to a policeman, everyone is a criminal” is an example of the tendency we all have to judge new people based on our past experiences with others. This can be problematic for those of us in HR who get railroaded into being the head of the unofficial “employee complaint department.” Dealing with minor (and seemingly ridiculous) employee complaints day in and day out can unconsciously skew our view of new or legitimate complaints in the direction of skepticism and disbelief.

Second, we all have some pretty understandable – and false – beliefs about how to actually evaluate someone’s truthfulness. It is common wisdom, for example, that liars often exhibit nervous gestures (longer pauses, not looking the other person in the eyes, speech disturbance) when research actually suggests the opposite. Throw cultural differences into the mix and the usefulness of relying upon body language to detect deception is virtually nil.

Third, most of us make snap judgments of the general trustworthiness of a witness immediately upon seeing him or her for the first time. Not only is this intuition unreliable, it can influence how we gather, and interpret, future evidence. In a study of criminal investigators, those who presumed guilt were more skeptical about evidence that suggested innocent than they were about information that confirmed their preexisting belief. In other words, we tend to see what we believe.

Here’s the good news. First, we need to throw out any ideas we might have that credibility assessment is a common sense matter and that our intuition is a useful guide. Second, we need to let go of any notions that we can tell someone is lying by his shifty gaze or nervous hand wringing. We need to be aware of how our past experiences with complainants might influence our approach to a new sexual harassment investigation. And we need to build in safeguards (a second opinion, critical thinking that objectively evaluates all evidence, clearly thinking through and documenting why we are taking each step in an investigation). This doesn’t guarantee that we’ll make the right decision; but it does raise the odds that we’ll make a fair one.