Last week, we covered three How-tos for employee investigations. This week’s blog addresses Part II of the “ABCs of investigations” – an important, timely, and fact-filled topic. Because of the criticality of this topic, and the detailed conversation in this post about how to proceed, it is long. Be sure to have time to read it when time permits. Grab a cup of coffee, relax and read on. Questions, comments? Feel free to leave a comment on my website, which is www.dianapetersonmore.com, or email me at email@example.com.
As a refresher, in last week’s post, seven items were set out on what the employer should consider:
- The investigation must be undertaken soon after the complaint is made;
- The investigation must be neutral;
- A decision on how to handle the employees involved during the investigation should be made;
- Both the employees to be interviewed and the questions to be asked should be determined;
- A decision on credibility – who is/are the truthteller/s – must be made;
- A determination must be made on what, if any, disciplinary action is appropriate;
- How to address the fear of retaliation or retribution; and,
- The employer needs to decide what to tell the so-called victim at the conclusion of the investigation.
We covered items 1 through 3, saving items 4 – 7 for today. Further, we’re adding an 8th item today on how to handle fear of retaliation/retribution.
Item #4: The Interview Process Itself: Who Should be Interviewed and What questions Should be Asked during Investigations?
Clearly, both the alleged victim/s and the alleged perpetrator/s should be interviewed, along with anyone else any of the parties recommends as someone who witnessed the conduct in question, or someone the so-called victim/s might have told at the time. Also, other potential interviewees, the investigator determines merits a conversation that might add information. Further, the investigator retains the right to interview a second time a witness after hearing different information from another witness.
Interviews typically commence with background questions about the individuals’ overall work experience, length of service in the current job, and her or his progress within the company. Next, engaging in an informal chat – based upon a topic the interviewee has already mentioned — is helpful. This can serve to put the person at ease; indicate the interviewer is listening to what was said; and, it can also demonstrate that the interviewer is interested in what the person has to say and is a trustworthy interviewer.
Investigatory interview questions should be open-ended, allowing all parties to tell their recollections of the events. Open-ended questions are those that do not end in “yes” or “no,” rather call for the interviewee to give full sentences, paragraphs, etc.
Digging Deeper – Who to Interview:
- Both to enable the investigator to speak to all with knowledge on the matter or matters, and to ensure that both the so-called victim/s and perpetrator/s believe the investigation has been thorough, complete, and fair, it is critical to interview all of those the parties indicate should be interviewed.
- The second to last set of questions to be asked should be: who else should I speak to that saw this happen, or who you might have told at the time? (The last question being “what else do I need to know that we haven’t yet discussed to ensure I understand what took place?”)
- While investigators disagree, my preferred order of interviews is: first, the victim/s; next the perpetrator/s; after that anyone with first-hand knowledge, e.g. those who witnessed the event/s; and, finally all others named by the principal parties. I do this because after interviewing the victim/s and the perpetrator/s, I go through the notes I took from the victim/s and read them to the perpetrator/s and ask them to verify or deny. This is also a good way to get a sense of trustworthiness, by careful observation of the reaction or reactions, and asking follow-up questions.
- It is important if the facts enumerated by the victim and the perpetrator are close, yet dissimilar enough to cause a reasonable person to draw a different conclusion as to what took place, to interview a second time the victim, read him or her the facts as stated by the perpetrator and to gain additional information, if any, or to hear the victim stick to his/her version of the facts.
Digger Deeper – Interview Questions:
- If the person mentions having a job in her work experience from another employer, one could ask: “I didn’t know that you worked at XYZ organization. Tell me a little more about that?”
- Open-ended questions could proceed, as follows: tell me about what happened on July 10th? What happened next? Then what happened? ‘
- If the person is alleging a hostile work environment and/or she or he is being treated differently than someone else “similarly situated,” meaning someone in the same job category, the questions might be: tell me who else is in your job category? Please provide examples of how she or he is being treated differently, perhaps more favorably than you?
Item #5 – How to Determine Who is/are the Truthteller/s?
Sometimes it becomes apparent in the investigatory process how the events proceeded, making it easy to determine whose recollections are accurate, thus, dictating whether the matter happened or not; whether the complaint has validity, etc. There are times when it comes down to the so-called “he-said, she-said.” In those cases, it is incumbent upon the investigator to determine whose version of events the investigator believes. How to?
Digging Deeper – How to Determine Credibility?
- Having introduced the informal chat, the investigator can gain of sense of how the interviewee speaks when comfortable. When the investigator turns to the matter at hand, watch for signs of discomfort.
- Continue to interview those who may know either of the party/ies and can address the individual’s workplace demeanor in similar situations (Example: three waiters were accused of creating a hostile work environment for a dishwasher by calling him “gay,” “fairy,” etc. The security guard at the restaurant had not heard the specific allegations – that all three wait staffers denied – however, she had heard all three of them telling dirty jokes targeted at gays.)
- If the investigator is unable to make the determination, the confidential report should so state, citing the “facts” on either side, and either making a recommendation on how to proceed or indicating the investigator cannot.
Item #6 – Determining What Disciplinary Action Will be Recommended:
This tip assumes the investigator believes the perpetrator indeed committed the complained-about infraction, thus disciplinary action is merited.
It is important that the investigator understand how others “similarly situated” have been treated by the employer to ensure some consistency.
Other key elements include:
- The perpetrator’s length of service with the organization.
- The workplace relationship between the victim and perpetrator (e.g., direct reporting relationship, a senior individual from another department, peers, etc.).
- Her or his overall performance.
- Whether she or he has been disciplined in the past.
- The nature of the infraction.
- The organization’s concern about retaliation. (NOTE: This concern exists regardless of whether the investigator believes the so-called perpetrator committed the infraction. Thus, the organization needs to take precautions to avoid this. Sometimes the two are separated by department, by a chain of command, etc.)
Digging Deeper – Disciplinary Action:
- The following is an example of treating employees similarly in similarly-situated employment circumstances: A receptionist who opens up the office at 7:00 am – a critical task in his job – is tardy twice in one month, and was terminated. He discovers that a receptionist at another company’s office who was late twice in one month was suspended for three days. Without other factors considered (e.g., overall work record, length of service, etc.), the first receptionist will likely have a valid complaint against the employer.
- Typically, when disciplinary action is taken the employer views the total record of the person found to have committed an infraction (cited above), along with considering how others in similar positions were treated for similar infractions.
- The severity of the infraction should be considered, the so-called “punishment must fit the crime.” The fairness to the party that committed the infraction should also be considered. In short, not all forms of Title-VII harassment are equal. Should the waiters who called the dishwasher a “fairy,” be treated the same as a person who gropes another in the workplace?
Item #7 How to Handle Fear of Retaliation:
Because retribution or retaliation is considered a more egregious offense than the underlying allegation, it is imperative that the organization do its best to prevent this from happening. Often, this means removing the two (or more parties), by department, by reporting relationship, etc. Some organizations forbid the so-called perpetrator – whether or not she or he was found to have committed the underlying charge – from ever communicating directly with the so-called victim. One Cautionary Note: workplace separation cannot disadvantage the person who brought the complaint.
A museum gardener alleged unfair treatment by the Property Director between himself and two other gardeners. The investigator found no merit to the underlying charge. However, because of fear of retaliation, all three of the gardeners were reassigned to report to the Administrative Director. All three were then monitored to ensure they were given the same assignments and held to the same standards.
Item #8 What to Tell the So-Called Victim at the End of Investigations?
Rather than wait until the end of the process, at the end of the interview, it is critical to communicate, in the investigator’s own words, the concept that follows: “Just as the company would not share with other employees any disciplinary action taken against you, the Company will not share with you any disciplinary action taken that may be taken against the perpetrator. Please know that the Company is fair and will take applicable action if any. Apart from that, if that individual or anyone else takes retribution or retaliation against you, it is incumbent upon you to immediately advise me of that. Here is my contact information.”
Part 2 Conclusion
There are a number of issues to consider when an allegation is made of any form of discrimination, harassment, and/or hostile work environment involving a protected individual or group as enumerated in Title VII, the Civil Rights Act of 1964. Last week, Part I of this blog discussed 1) the timeliness of the investigation; 2) how to ensure neutrality; and, 3) how to handle the employees involved during the investigation should be made.
In this week’s blog, Part II, the following was covered:
- Who should be interviewed?
- In what order?
- How should the questioning proceed?
- How does one determine who is the truth-teller?
- What about disciplinary action?
- How does an organization handle fear of retaliation?
- What does the complainant learn about workplace actions taken, if any, at the conclusion of the process?
This topic requires a thoughtful, respectful approach with a focus on determining “acts and facts” and removing emotion from the process. There are many questions the organization must ask itself to determine the best way to proceed.
For more information, read last week’s blog, and my guest article on HRdotCom: Tips For Identifying, Preventing, And Handling Workplace Sexual Harassment: Maneuvering the wild and woolly world of workplace attractions and relationships in the #MeToo era.
Or, if you are in California, contact me to facilitate the two-hour, mandatory sexual harassment prevention, anti-bullying, and anti-gender identification bias training. I’m certified by the State Bar of California to award credits to attorneys needing to fulfill their annual MCLE credits.