Employment Investigations: ‘She Said, He Said.” Are we stuck?!

“A simple “he said, she said” might stop some HR professionals in their tracks, but implementing an Awareness Talk allows you to satisfy the need to address alleged behaviors, protect the accuser and protect the company.”

By Rod Lacey, Sunstone HR

With No Additional Witnesses? There’s Nothing We Can Do Here, Right? If you haven’t faced this yet, you certainly will in any employee relations role. Susan comes to human resources sharing details of Gary’s dastardly action. The accusations are big enough that HR makes this a priority and immediately starts an internal investigation. The one catch in this situation is that there were no witnesses. Let’s assume Gary’s alleged action was significant enough to warrant immediate termination, if validated.

Where there were no witnesses, the next logical step in the investigation would be to interview Gary and present him with an opportunity to share his story. What if, when presented with the accusation, the Gary says “I have no idea what you’re talking about. I didn’t do anything of the sort.

You’re stuck, right? There’s nothing more you can do, is there?

WHAT’S THE RISK?

Let’s consider the risk before we simply walk away with a shoulder shrug and assume that we’ll never get to the absolute truth (which may actually be the case).

If Susan is telling the truth, and Gary’s actions were in fact that bad, the company now knows about the alleged activity and has a duty to act to protect Susan. The company also now has a duty to make sure that Susan is not retaliated against, again, assuming that the allegations are valid. The company may also be held accountable for addressing Gary’s inappropriate behavior in a manner that would be enough to prevent it from occurring again.

On the other hand, if Susan made the story up, a false accusation could be extremely damaging to Gary, and no company wants to reinforce the value of a powerful untruth.

THE AWARENESS TALK

Despite the “he said, she said” nature of the ‘complete’ investigation, there is in fact something effective that can be done that respects both parties (Gary and Susan) and protects the company. I call it an AWARENESS TALK.

The Awareness Talk With The Accused

Once you’ve conceded that “she said, he said” represents the complete investigation, the Awareness Talk happens first with Gary (the accused) and might sound something like this: “Gary, we spoke earlier about the allegations we heard about your inappropriate behavior. I also recognize that you are denying that these things occurred. I am not accusing you of these actions, but (since we’re on that topic) let’s at least have an awareness talk about appropriate work behaviors and boundaries.”

The non-confrontational and non-accusatory approach of the Awareness Talk allows you to coach Gary, in detail, and record that this discussion has taken place.

That meeting needs to conclude with a review of a non-retaliation standard, especially if Susan’s name has been shared or is known. This can also be approached in a non-accusatory way like this: “Now Gary, before we finish, I’m sure you’re aware that employees have a right to bring concerns forward without fear of retaliation. I know you pretty well and can’t imagine that you would do anything like this, but just wanted to remind you of this. We’re not going to have any issues with this, are we?”

So, this is what we share with Gary, the accused. What do we share with Susan (the accuser)?

The Awareness Talk With The Accuser

After Susan is told that you were unable to validate the story, you are now in a position to confirm to Susan that “the behavior has been addressed and will not happen again” and that she will “not be retaliated against” in any way.

You should also ask Susan to immediately report any repeat behaviors and any sense of retaliation directly to her manager (or to HR). You can reassure her that these behaviors will not be tolerated in any way.

How does this protect the company? Let’s suppose that Gary was dishonest with HR and his behaviors were reported again in the future. If the company’s actions were scrutinized by an external party, it would be able to show that it actually did a pretty effective job of teaching policy and appropriate behaviors, despite the absence of a validated story-line.

Let’s suppose that Susan was being dishonest and just wanted to get Gary fired. The non-accusatory approach of the Awareness Talk prevents the company from being held liable for repetitional harm that might accompany a false accusation.

NEED MORE?

If you would prefer to strengthen the nature of the Awareness Talk, I would recommend implementing a tactic that I learned from Jathan Janove, called a ‘Same Day Summary.’ The Same Day Summary is a written document (which could be an email) to the individual that is delivered to the individual to summarize the day’s meeting.

To illustrate how a Same Day Summary works, after HR met with Gary, an email would be sent to Gary on that same day that summarized the nature of the conversation. The tone could continue to be non-accusatory, but would detail the scope of the discussion. “Gary, as you are aware we met today to discuss appropriate behavior in the workplace and more specifically reviewed these six topics . . . Please let me know if this summary does not match your recollection of the meeting or if you have any questions.”

SUMMARY

A simple “he said, she said” might stop some HR professionals in their tracks, but implementing an Awareness Talk allows you to satisfy the need to address alleged behaviors, protect the accuser and protect the company.

An Awareness Talk coupled with a Same Day Summary gives you double the teaching opportunities and provides even additional documentation, should the company’s practice ever be brought into question.

A seasoned employee relations person recognizes that there are always two sides to every story, and that rarely do all of the facts line-up. Having an Awareness Talk in your bag of tools will be a helpful practice for any HR professional, especially when we’re stuck with very different stories.

For more information on Rod Lacey or Sunstone HR, click here!

Don’t Let Your Compassion Start a Zombie Outbreak at Your Company

By Rod Lacey, Sunstone HR

Yes, you heard me right, too much compassion in an organization can create a zombie outbreak. Curious?! Please let me explain.

Let’s assume that Roger has been identified for termination, due to work performance. You could also swap-out ‘work performance’ for a simple layoff and the story remains basically the same.

As you sit with the CEO and COO to review how to orchestrate Roger’s departure, the COO identifies that he lives near Roger, and that he knows Roger and his family are going through some hard times. He doesn’t ask to reverse the decision (because it’s a good business decision), but does ask if there is some sort of compassion that could be showed to Roger.

What is decided is that Roger should receive what I refer to as a ‘work-out’ period. Roger will be told that he’s being let go, but given 45 days to remain employed and look for work. The compassionate manager felt that it would be easier for Roger to gain employment if there weren’t any gaps on his resume. They also considered how the extended dates would positively impact Roger’s benefits and hopefully ease him breaking the news to his spouse.

THE KIND (SOFT) MANAGER

You know this type of manager! There are ultra-compassionate managers who simply can’t make these hard decisions, and when they must, they try to create as much padding as possible to soften the messaging.

ZOMBIE OUTBREAK

Allowing an employee to continue working, after he has been notified of his termination, creates a period of time where I call him ‘the walking dead.’

Whether it’s the popular TV show on AMC, or the line from The Green Mile “Dead Man Walking” – we know what that means. We have someone of short-term, or no value walking our halls.

What can you expect from the walking dead in your building? After your compassion, only a small percentage will give their role full effort and energy. If the reason for termination was performance, that means you’re getting even less of the sub-par performance than ever before. How would this be a win for the employer?

WHAT ARE THE RISKS?

Here are just a few of the risks associated with giving notice, then allowing the walking dead to roam your halls:

  • Roger could get another job and start to recruit your employees to follow him.
  • Roger could suffer a work-related injury that won’t go away as fast as his termination date.
  • Roger and his entire family could undergo surgeries that would run-up the company’s medical cost.
  • If Roger understands Medical Flexible Spending Accounts, he would likely spend all of the account, even if it’s early in the year and the account isn’t fully funded.
  • Roger could harass coworkers, creating a hostile work environment that could expose the employer.

What does Roger have to lose? Why would he be expected to remain committed to the organization?

I believe it’s clear that I am not an advocate for work-out periods because each of the above “risks” have happened to organizations I’ve been with.

In one situation, an individual that was terminated and allowed to pack his desk, and quietly left the building within 30 minutes of termination. In that brief, but unsupervised 30 minutes, he advised an active, high performing employee that she should get an attorney. Even a 30 minute work-out period failed!

ALTERNATIVES

Now before we commit to be fully heartless or cruel, let’s discuss a couple of different approaches

that simply work better.

First, if performance is the issue, please address it. Allowing an under-performing employee to remain employed makes little sense (if we’re to the point of termination), so simply let him go. Don’t delay, and don’t allow the walking dead to roam the halls for weeks.

Second, if you feel a need to be compassionate, don’t pay for 30-45 days of non-productive work that creates significant risk. If you insist on compensation, pay the individual something AFTER he’s left the building. If you’re just going to create risk with a work-out period, don’t do it! Offer the employee a lump-sum or schedule of payments, but probably in exchange for signing a waiver and release.

CONCLUSION

In my career I have had countless requests for work-out periods and have pushed-back on them all, but allowed several. I can honestly say that a couple of them turned-out okay. The vast majority, however, were a dismal failure. Most of those managers learned the hard way that their compassion came back to bite them, or the company.

When considering terminating an employee, work-out periods may seem compassionate, but they actually significantly increase the risks the employer may face related to that termination decision. If the decision is to terminate, get the employee out the door and avoid the zombie outbreak!

For more information on Rod Lacey or Sunstone HR, click here!

HR Playbook: Responding to a Harassment Claim

“. . . you’ve all had that employee relations moment when a woman comes in and shares a story that freezes you in your tracks. Your mind thinks the words “Oh s*#!” but you remain visibly calm as she shares her story.”

By Rod Lacey, Sunstone HR

What I love about a career in human resources is that ‘people’ keep things very interesting. I will never be able to say that “I’ve seen it all” because even when facing a similar scenario, how an individual responds or behaves makes it an entirely new situation.

If you’ve spent time in management or human resources, you’ve all had that employee relations moment when a woman comes in and shares a story that freezes you in your tracks. Your mind thinks the words “Oh s*#!” but you remain visibly calm as she shares her story. She shares that she’s been offended by an incredibly crude comment made by a coworker. She’s visibly upset and expresses that she’s ‘had it’ and ‘will not work with that man again.’ She then tells you that she’s going home for the day and walks out.

A quick clarification before we proceed:   I refer to the harasser as a “he” and the harassed as a “she” for a reason.

  • Men of the world, the sad truth is that most of the harassment in business is men. Until we clean-up our act, the gender in my harassment illustrations will remain this way.
    • To illustrate, in 2015 6,822 sexual harassment complaints were filed with the Equal Employment Opportunity Commission. Only 17.1% of charges were filed by males.
  • Legal disclaimer: I am not an attorney . . . blah, blah, blah.
    • If you’d prefer a more technical description than my storyline, the EEOC provides a great summary on what constitutes sexual harassment at this link.

Faced with this situation, here’s a simple step-by-step approach to assessing the risk and resolving the problem.

ASSESS THE RISK

  • Assure the offended employee that you will address and fix the problem. You are in a better position to improve your situation if she remains employed. If she leaves the organization, damages could potentially include lost wages and more.
  • Gather all of the details possible from the offended employee while it’s fresh on her mind. Ask for evidence, witnesses, or anything that might help to corroborate her story or provide supportive insights.
  •  Investigate the alleged offender’s side of the story. Do your best to identify exactly what was said (or done), when it occurred and how often. Witnesses are still key, as are dates, times and evidence. Collect everything that is available in a quiet, professional way, out of respect for both parties.
    • If the stories don’t line-up and there are no witnesses (worst case scenario), please read my “She Said, He Said” blog post for instructions.
    • Assuming that you are able to reach a level of confidence that you know what was said (or done), here are some of the important questions that need to be considered:
      • Was the behavior isolated? Is this a one-time occurrence, or a pattern of behavior? Has the offended employee asked the other individual to stop or quit at any point? A one-time event may be in the favor of the employer, where a pattern is cause for concern.
      • Was the behavior pervasive? Even an isolated incident can be big enough to warrant a more serious review.
      • Would a reasonable person have been offended? Objectively looking at what has occurred, you should ask whether a reasonable person would have found the same event offensive. There are occasions where individuals are highly sensitive, and other situations where a misinterpretation or misunderstanding might occur.
      • Was the individual in a supervisory role, or position of influence? If the individual was in some sort of managerial role, or had some influence over the offended employee’s work, that can greatly impact the exposure for the company.
      • A ‘strike’ in any of the above factors is significant, and action should be taken by the employer. Multiple strikes makes the decision to terminate the offending employee a little more clear.

DAMAGE CONTROL

Now that an assessment of the issue has been made, it’s time to do damage control. The right response from an employer can minimize and even eliminate the exposure created by the poor behavior of the employee. Here’s what the employer should do.

  • Act promptly. This is not the time to play bureaucracy, wait until the CEO returns from overseas, or establish a review committee. The more swiftly the employer acts, the better its actions appear.
    • It appears that the complaint was taken seriously.
    • It addressed and eliminated the behavior quickly.
  • Fix the behavior. You need to consider what it’s going to take to absolutely prevent that behavior from occurring again. On the mild side, it means coaching the offending employee and getting him to commit to cease-and-desist. On the more aggressive side, it may mean termination. Transfers, reassignments, written warnings and everything else is also a consideration. Just make sure whatever you decide to do prevents the behavior from occurring again.
  • Prevent retaliation. Offer assurances to the offended that this behavior will not occur again, and that there will be no retaliation for her reporting this information. Ask her to immediately let you know if she senses any sort of retaliation. If the offending employee is going to remain employed, be very candid about your zero-tolerance for retaliation.

SUMMARY

When an employee comes in and has the courage to report the “H” word, be a respectful listener, gather facts, act quickly and offer assurances that this behavior will never occur again.

Your prompt and sincere attention to the issue is your best chance at addressing the issue, damage control and could ultimately save your employer the embarrassment and expense of a harassment lawsuit.

For more information on Rod Lacey or Sunstone HR, click here!

If You Can Read This, You’re In Trouble!

There are many measurements of time, one of the shortest being the nano-second. There is a new time metric that has been defined as the “ohno-second”, or the time between when you click “Send” and you realize that you’ve just made a huge mistake. Maybe you’ve ‘replied to all’ by accident, or sent confidential information to the wrong “John.”

By Rod Lacey, Sunstone HR

Carved In Stone

One of my favorite activities on a vacation is to look for ancient petroglyphs. These carvings in rocks have lasted hundreds or even thousands of years. What was written long ago still exists today. We may not understand the meaning or original intent, but those images and once-important stories are on track to last forever.

With the current, heavy reliance on written communications in business, and the ease that has been created by text, email, social media and instant messaging, the face-to-face conversations are slowly losing their valuable place in our communication style. “Why should I walk over to see you when I can IM and get a quick reply?” “Why should I call you when an email allows me to click “send” and quickly move on to my next task?”

Here’s some statistics related to how our electronic communications are growing:

  • In 2013 over 100 billion business emails were sent and received per day.*

Even more alarming are the poor practices that occur in business:

  • 50% of employees have sent or received emails that include jokes, stories or pictures of a “questionable” nature.**
  • 6% of employees have emailed confidential company information that they should not have.
  • Although 92% of employees said they had never sent an email that put their company at risk, however 68% in fact had.**
  • More than 25% of companies in a recent survey have fired an employee for email misuse; most of the terminations were for inappropriate or offensive language and violation of company rules.**

Elliot Spitzer, former NY Governor and lawyer said “Never talk when you can nod and never nod when you can wink and never write an email because it’s death. You’re giving prosecutors all the evidence we need.”

Have you ever worked for a company when the discovery-hold notice from Legal is circulated? If your communications related to that topic were written, they may as well have been carved on stone – they’re on track to last forever.

Back to some statistics:

  • 24% of employers have had email subpoenaed by courts and regulators and another 15% have battled workplace lawsuits triggered by employee email.***

The same rule applies to social media posts. Unless you have completely misrepresented your identity, there is no imaginary shield that protects your online activity from discovery. There is also a fuzzy line that defines when you are acting independently, or acting as a company representative. Be careful what you carve in stone in any forum.

As a seasoned human resources professional I have had meetings with employees at all levels of the organization about their online activities. Most of these individuals were just coached but some were fired.

A good communications policy can protect the company to some degree, but if you consider that the average employee sends or receives over 100 emails per day*, even the best of policies still leaves the company exposed.

Understanding and respecting that written communications are a necessary and productive work forum, here are some helpful tips to consider before any written communication is sent (aka: carved in stone):

Consider the Weight

As a general practice, and assuming you aren’t corresponding under attorney-client privileges, the weightier the topic, the more verbal communication should occur. When the email chatter gets more serious, a simple “I’ll be right over” or “Call me” would be more appropriate than continuing to circulate sensitive information.

Be wary of the unintended consequences of e-discovery. Ask if you would want your email read out-loud to a jury in front of your CEO and General Counsel.

Consider All Potential Audiences

Never send anything that could be offensive to anyone. I was once involved in the firing of an employee at another company. Back-in-the-day when everyone mass-forwarded the ‘joke of the day’, a racially insensitive joke began to circulate in my company, which was brought to my attention by an employee, in a protected class, who was offended. As I worked to clean-up the mess in my own company I was able to identify the chain of emails and exactly who had first sent it to an employee at my company. I contacted the HR department at that company (as the individual sending the email used his/her work email) and informed them of the email and its impact on one of my employees. I left the discipline up to that HR team, but learned days later that the employee had been fired.

Never E-Fight

You know what I’m talking about. Whenever I’ve encountered the ‘rage email’ in my inbox, I never reply. Instead, I immediately walk down to that person’s office, close the door and say “Sounds like we need to talk.” Without exception, the issue has never been as big as was expressed in the email.

If you’re typing is in ALL CAPS, or your tone feels that way, don’t send it!

Avoid E-Threats

Never threaten harm or undue consequences to another employee, especially in writing. Performance expectations are a good practice to communicate in writing, but let’s limit consequences to subjects related to performance management.

Pause Before You Send

There are many measurements of time, one of the shortest being the nano-second. There is a new time metric that has been defined as the “ohno-second”, or the time between when you click “Send” and you realize that you’ve just made a huge mistake. Maybe you’ve ‘replied to all’ by accident, or sent confidential information to the wrong “John.”

Even in our busy lives, it is well worth the time to pause, take a deep breath, proofread one more time and triple-check our work before “send” is clicked.

Avoid Names Where Possible

Wouldn’t it be embarrassing if you named an employee with performance challenges in an email and in a whirlwind of forwards through management, that employee eventually was copied on your note? Or, what if you expressed exasperation with an employee, by name in an email to the manager, for her use of FMLA, and your email was subpoenaed for her later EEOC claim?

If the receiver knows who you are referencing, you could refer to the ‘current situation’ or something generic (although please not derogatory) rather than naming the employee. If the material is super sensitive, it should be reserved for a face-to-face conversation anyway.

Be Careful with Sarcasm

Meaning is difficult to convey in writing, so sarcasm may or may not be fully understood. Even if that’s your go-to communication style, business emails should be written professionally and your sarcasm should be saved for a forum where you get the pleasure of the real-life ‘laugh-out-loud.’

Never Vent in Writing

If you need to vent, walk to your friend’s workstation and ask if they have a few minutes to talk. Negatively communicating via any medium with names, roles, titles and functions attached could have negative consequences.

Conclusion

In high school I was on the wrestling team. On the walls of that sweaty wrestling room were dozens of motivational posters. The one that stands out to me the most is the one that I hoped never to read. The only poster on the ceiling of that room read “If You Can Read This, You’re in Trouble.” A wrestler reading that would have to be on his back, looking up at the ceiling, struggling for his existence, and very much in trouble.

Considering that written business communications today are essentially carved in stone, I keep a mental image of that wrestling poster in my mind before I click Send or Submit.

I do my very best to never to send anything that would cause me to fear “If you read this, I’m in trouble.

For more information on Rod Lacey or Sunstone HR, click here!

References:

*Email Statistics Report, 2013-2017 The Radicati Group, Inc.

**Lisa Guerin, “Smart Policies for Workplace Technologies”

***American Management Association, “2007 Electronic Monitoring & Surveillance Survey.”