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HR Handled Right

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misconduct

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.

 

One of the biggest frustrations I hear from my plaintiff attorney colleagues is this; jurors (and most people for that matter) have a very hard time understanding why anyone would put up with sexual harassment for weeks or months without doing anything about it.

In fact, ask 100 people on the street what they would do if some creep at work was coming on to them and 90 of them will say they would take some kind of action – tell the person to knock it off, go to HR or punch the guy (or gal) in the mouth. However, if you ask 100 people who have been in that situation what they actually did, you’ll get very different answers. The vast majority will tell you they either a) tried to ignore it; b) tried to stay away from the person; or c) found another way to get out of there (asked for a transfer or quit).

The Top Reason Employees Keep Their Mouths Shut

So why don’t intelligent, usually assertive employees speak up right when the offensive behavior starts? Hands down, the number one reason is this: “I’m afraid of what will happen.” Most employees realize that once the proverbial cat is out of the bag, there’s no way to put it back in – and they no longer have control over where it goes.

Just about anyone who’s thought about speaking up is terrified of what will happen if they do. Before s/he speaks up, s/he is just a regular employee. However, the minute the employee complains about offensive behavior, s/he becomes something far more sinister in many executive’s eyes. A complainer. A prospective litigant. A financial threat. And, all too often, the corporate fear surrounding this new role gets communicated in a myriad of ways.

When the Fear is Justified

Unfortunately, some employees can cite very good, company-specific reasons why they should keep their mouths shut. “I saw what happened to the last person who complained.” “My manager does the same thing and no one cares.” “HR can’t keep their mouths shut.”

It’s not just about how previous sexual harassment complaints have been handled; employees are all too aware of how employee complaints in general are dealt with. An employee who walks through a manager’s open door policy only to encounter a closed mind behind it learns pretty quickly the difference between policy and practice.

So What’s HR to Do?

Fear of retaliation is natural. I don’t think there’s any way to completely alleviate it. However, there are some things HR can do to minimize it, both before and after a complaint:

  • The most important step senior executives can take in this area is simply to communicate ethical expectations more clearly to employees. In fact, research suggests that improving clarity of expectations and disciplinary guidelines can reduce misconduct levels by more than 40%
  • Managers and supervisors should be trained on how to handle employee concerns and how to instill a corporate culture in which employees raise concerns without fear of reprisal. Employees not only expect their managers to know what to do when faced with an offensive behavior complaint, they expect them to do it with tact and sensitivity.
  • All employees should be put on notice (e.g., through training and the employee handbook) that, if they punish another employee for raising a concern, they will be subject to disciplinary action.

Any manager who thinks employee silence is golden should consider that the longer offensive behavior goes on, and the harder a company makes it for an employee to complain, the more likely it is that what’s golden will be the bank accounts of the attorneys involved.

For each harassment complaint you’ve investigated, odds are you’ve dealt with ten times as many equal opportunity jerks. The boss who constantly criticizes, demeans, and undermines his employees. The supervisor who takes delight overworking and exploiting subordinates, or the employee who taunts and intimidates his coworkers. In short, the workplace bully.

Hypersensitive or Held Hostage?

With the continued escalation in harassment complaints, the last thing H.R. professionals need is another behavior problem to deal with. And, given the stressful work environment these days, it’s easy to think that rudeness or incivility is an inevitable part of people working together; after all, who hasn’t been snapped at by a stressed-out boss or coworker?

Bullying, though, is not the occasional sharp retort or sarcastic putdown. Nor is it a misguided attempt to get things done through tough management. Bullying is an ongoing and systematic campaign of interpersonal destruction. It tends to be an accumulation of many incidences over a long period of time; on its own, a single incident would not necessarily constitute grounds for disciplinary action. Taken together, these instances add up to persistent, abusive behavior designed to make the target feel upset, humiliated and threatened.

For example, according to the U.S. Hostile Workforce Survey 2000, the most popular bullying tactics include:

  • blaming others for errors
  • raising false concerns about or criticizing the work of others
  • making unreasonable demands
  • yelling and screaming
  • threats of job loss, insult, or put-downs
  • inconsistent enforcement of arbitrary rules
  • social exclusion
  • stealing credit for another’s work

Studies vary as to who is most likely to be a bully – some studies say that both men and women are equally likely to misbehave while other studies indicate that 70 percent of all bullies are men. There is little controversy, however, that the bully is most likely to be the boss and that, male or female, the victim is most likely to be female. There’s also consistent evidence that workplace bullying is common – and that it hurts the bottom line. In fact, a recent study suggests that simply being a witness to workplace bullying is linked to sleep problems and increased stress.

The Psychology of Bullying Versus Harassment

Unlike illegal forms of harassment and discrimination, bullying isn’t directed at a person because of his or her religion, gender, age, race or other demographic variable. S/he isn’t interested in obtaining sexual favors or dominating a vulnerable group. In fact, the target of bullying is most likely to be selected because of her popularity and competence, which is perceived as a direct threat to the bully.

Unlike a sexual harasser’s need to take advantage of someone in a vulnerable position, bullying is an effort to control a threat (and prevent exposure of inadequacy). Unlike the power motive behind harassment and discrimination, envy and jealousy are the primary drivers of bullying behavior. And, unlike the racial slurs or sexual comments found in illegal forms of harassment, workplace bullying tends to appear as petty criticism, the withholding of critical information, and/or false allegations of underperformance.

Another difference between generic bullying and harassment is the available legal remedies. U.S. laws aren’t set up to deal with an incompetent or cruel supervisor bullying a subordinate unless it is linked to a protected demographic or is so outrageous that it causes diagnosable emotional distress.

However, bullies may not completely escape the long arm of the law. In the United States, I see more and more stress-related workman’s comp claims and intentional infliction of emotional distress lawsuits because of workplace bullying. For example, two employees in Texas were awarded $250,000 in damages after a supervisor continually yelled at them, put his head down and “charged at them like a bull,” and made at least one employee wear a sign that said “I quit.”

Is There a Bully in your Midst?

Having conducted numerous morale investigations for employers, it never ceases to amaze me how one person’s dysfunctional behavior can permeate the entire organization. Employers may not face the same legal consequences as they would for discriminatory behavior, but the lost productivity and turnover costs are enormous.

Because victims are often afraid to speak out about their experiences and witnesses reluctant to stick their heads out, it can be hard to know if a bully is poisoning your workplace. Here are three ways you can begin to assess how bully-tolerant your work environment currently is:

  1. Conduct an anonymous employee satisfaction survey, asking questions specifically about employee experiences of common bullying tactics.
  2. Conduct regular exit interviews and ask specifically about interpersonal problems that might have led to their resignation. It can be useful to follow up a few months after the employee has resigned; in my experience, they’re more likely to be candid after some time has elapsed.
  3. Keep track of turnover statistics by department, by manager, and by unit. If you spot an anomaly, consider hiring an outsider to conduct an independent morale investigation.

Of course, there’s only so much HR can do; bullies thrive where authority is weak. Until there’s a commitment from top management, a policy is only words on paper and an investigation is meaningless unless there’s some teeth behind it. Still, as an HR professional, you are in a uniquely powerful position to advocate for employees by showing the powers-that-be why – and how – bullying in the workplace impacts the bottom line.