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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.

 

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.

 

Interviewing an employee who has been accused of sexual harassment is not for the faint of heart. As we saw in Part 1, it is natural for the accused to feel defensive, angry and victimized – whether or not s/he is innocent or guilty. However, there are some specific strategies you can use that will help you get at the truth without antagonizing the accused.

Hyper Smash

The Beginning of the Interview

As an outside investigator, I’ve yet to interview an accused employee who doesn’t already have some clue of the allegations against him /her. This is because HR has often interviewed the employee already either 1) as part of the initial investigation and before the decision was made to outsource it; or 2) to let the accused know about the investigation and that I will be contacting him/her.

If you’re an internal investigator, though, you will be tasked with letting the person know about the complaint. At the outset of the interview, explain the company’s policy against sexual harassment and give the accused a general overview of the issue that needs to be investigated.

I’m often asked what to do if the accused refuses to cooperate. The first step is to try to get the accused to talk about why s/he is reluctant to participate in the process and try to alleviate these fears/concerns. (If one of the fears is that HR can’t be neutral, consider hiring an outside investigator). If the employee still refuses to cooperate, explain that you still have an obligation to investigate the issue and if he/she does not provide you with relevant information, you will have to rely on other information — from others interviewed — and that the employee’s willingness to cooperate will be noted as a factor in the investigation.

The Meat of the Interview

Effective questioning starts before the interview begins. You should have already interviewed the complainant; before you meet with the accused, ask yourself what you need to know from this employee, how to present the question so as to gain accurate information, and develop a possible list of questions to use if the interview bogs down. In addition:

  • Start the investigation with broad questions and proceed to more narrow questioning as the interview moves forward.
  • Don’t begin with hostile or tough questions; they can cause the person to become defensive.
  • Save unfriendly or embarrassing questions (such as specific allegations of sometimes obscene behavior) until towards end of the interview.
  • Ask questions that elicit relevant information and the relating of events chronologically. You may even suggest that the employee present his/her reactions chronologically if that approach is helpful to them.
  • Do not put words into the employees mouth by asking questions in such a way that they suggest answers.
  • Review your understanding of the information you are being told.
  • After obtaining as much information as possible, review your notes regarding the specific allegation and ask about each of those not previously addressed by the employee.
  • If the accused denies the allegations or claims that some or all of the accused’s behavior was mutual or otherwise welcomed by the complainant, ask for any supporting evidence or witnesses that the accused can identify. If the complaint is denied, explore with the accused whether the complainant would have any motive to fabricate a complaint.

Ending the Interview

In a sexual harassment investigation, confidentiality is a concern for everyone. At the close of each interview, remind the accused that s/he must not discuss the complaint with anyone s/he works with. Tell him or her to come to you with any additional questions, concerns, or additional information.

Try to create a sense of predictability as much as possible. For example, outline when you anticipate completing the investigation, what will happen when it’s over (for example, that a report will be submitted to_____, that they will be allowed to read and respond to that report, etc.) Lastly, remind the accused that, in this sensitive situation, even the most innocuous comment can be misconstrued so it is crucial that the alleged harasser not retaliate or treat the complaining employee in any negative way.

The Bottom Line

Sexual harassment investigations are pleasant for no one, but – done right – they can lead to a successful resolution and better work environment.