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I think it’s really important for employees to be heard, and be heard and in a very serious and authentic way. And organizations that do a good job running investigations, they are listening to their… their employees.
Welcome to The JoyPowered® Workspace Podcast, where we help HR and business leaders embrace joy in the workplace. I’m Susan White, owner of Susan Tinder White Consulting, an HR consulting practice. Joining me is my co-host and dear friend JoDee Curtis, owner of Purple Ink and Powered by Purple Ink, a professional network I am a part of as well.
We’ve gotten lots of good feedback from listeners on our October 28, 2019 episode entitled “Workplace Investigations,” and since then, many people have written in asking us to go into more depth on this topic. Consequently, today’s episode is entitled “Avoiding Workplace Investigation Pitfalls.” In the original episode, we walked through how to approach internal investigations step by step. In this episode, we’re going to respond to some specific questions about investigations that listeners provided to us, and then we’re going to talk about how we’ve seen investigations go sideways if you aren’t careful. Alright, so let’s start with the questions from listeners.
“It seems like so many of my investigations end up being ‘he said, she said,’ and I don’t know who’s telling the truth.”
And I have to tell you, that issue resonates, I’m going to say, across every HR investigator that there is. I’ve heard it from so many people and I, myself… I have been involved in situations where someone makes allegations against someone else and honestly, I listened to both of them. They both seem very credible. There’s no witnesses, there’s no video, there’s no track record in their past that would help us, you know, try to evaluate which person may be telling the truth. And it truly is a “he said, she said.” What I have to say… in those circumstances, the important thing is that you do a thorough investigation that any reasonable person who follows you will say, “Hey, you’ve done everything you can, and it’s a draw, we don’t know.” But your opportunity there is to educate. Educate the individuals involved, the person who brought forth the allegation, to let them know that it… should any new information come to light you’re ready to reinvestigate or to investigate new issues, to assure them that this is a work environment that doesn’t tolerate whatever that was that caused the person to complain, and that after a thorough investigation, you’re unable to substantiate it. Doesn’t mean it didn’t happen. The education also has to go with the person who’s been accused. And the fact is, we don’t judge people just because they were accused, but our chance to educate them on, this is a workplace that doesn’t tolerate that. I have not been able to substantiate the allegation, but let’s think about… is there anything that you’re doing that might be causing perceptions that are not healthy? Or is there anything that you need to do to make sure that if this person is thinking things about you that are entirely untrue… how do you protect yourself to not be put in a position again where you could be vulnerable?
That’s great advice. I know, you know, early in my career, sometimes I just felt like one of them has to be lying to me, right? [Laughs] Somebody’s making this up. But later, I come to realize that sometimes it is a perception issue. Right? Sometimes assumptions are being made or, you know, maybe they’ve heard some things that have happened and that may or may not be true, but take that on and are looking for signs. But you know, perception is reality still. I’m not, again, suggesting that… that they were both fully doing the right thing per se, but that they may not be making it up either.
No. And in their mind, it may feel very, very real for those reasons. So that’s a tough one. So the person who wrote that in, I can feel your pain, and I think that hopefully this advice will be some help.
Well, I love your point about the education. Right? Regardless of anything else, we’ve taken the opportunity to… to educate. Here’s another question, Susan. “I have conducted investigations involving the same employee several times for several issues. Each time, management thinks the problem is resolved when the person is contrite. But a year or a year and a half from now, I’ll be looking into a complaint about this person again. What do you suggest?”
Oh, man, frequent fliers at the investigation table, right? And I don’t think this is that unusual, especially when it’s not heinous types of things that the individual has done. Maybe they had, you know, an interaction that didn’t go well, maybe they had a customer complaint that was… that caused you to investigate. So they’re… in and of themselves, none of them were enough to terminate an individual, and they appeared to be on the road to remedy right? So my advice in this situation is, if a situation arises that merits an investigation, run that investigation – a good, clean investigation. As you’re running an investigation, looking into the facts of the matter, talking to the people you need to talk to, looking at any other data, you need to reach a conclusion against the question or the allegations that have been raised. Once you come up with your findings, that is when you start to formulate… What do we do about it? And that’s where you’re going to meet with the senior leader of the business to talk through your findings. I think at that point, it’s very appropriate for you to say, “Now, when we talk about the corrective action, I think we should look at the whole picture. We did a clean investigation about this issue, but we might want to… we definitely want to take a look at what’s the pattern here, and we should look at the whole.” So as you decide your corrective action, it’s very appropriate in my mind to look at the track record of that individual, that series of things, and look at it holistically before you decide what you’re going to do.
So another question we had, Susan, is, “We have a remote site where one of the employees has filed a complaint against the manager there that is serious and needs investigating. I’ve tried to reach the other employees at the site by phone and email, and none of them will respond to me. I think they may be afraid. Can I make employees talk to me? Or how can I investigate this without tipping my hand to the onsite manager until I am ready to interview him as the accused?”
Yes. And I just got this question last week, and, you know, my advice is that I do think the HR person needs to go to that remote location. I don’t think that… They’re not responding to her calls and the only authority they see on site is this manager who they have allegations against, so I would go on site. Now, I would coordinate a time where the regional manager or some higher-level manager could either meet me there or go with me, because when I’m interviewing all of the employees, I would want to have that manager occupied with a higher-up. And maybe they use that time to go over, you know, timesheets, records, whatever. But I want to make sure that when I’m on site, I can be unencumbered by a manager sniffing around trying to figure out who I’m talking to, what I’m talking about. So I think that’s important. So I would pick a senior leader, as I always want to, who I feel is untainted by the allegations, who can be that partner that I can bring back findings to, that we can talk through, what are the corrective steps, steps that need to be taken. Now, here’s the thing. Let’s say you get on site and employees… they don’t have a choice whether they can come and meet with you, because you are a company official, they do need to sit with you. But you can’t pry open their mouth. You cannot make them talk. You can remind them of their responsibility as a member of the organization to not impede an investigation. But at the end of the day, some people are going to clam up on you, and you’re gonna do everything you can do. But they don’t speak, they don’t speak. In that case, you’re going to have to take the data you’ve got and come up with a reasonable conclusion. And it may be that your… based on your belief and how people reacted to you, even though they wouldn’t speak, you might feel that you can read something into that. So all you’re really required to do is what would a reasonable person do when they’re faced with the same set of data and information to talk to the same people you do, coming up with a reasonable conclusion. It’s a tough one.
Yeah, that is a tough one. But really could happen to anyone in any organization, right? I mean, making it a remote location certainly adds complications to it. But you could have people sitting next to you who clam up on you and won’t… won’t share information with you about it, too. So, where we have seen investigations go sideways.
Yeah, these are some of the pitfalls I think that I’ve seen, and some that I’ve personally experienced in investigations. And I’m sure, JoDee, you have as well. So let’s talk about these, because this might resonate with some of our listeners. So number one, I’ve seen where leadership is locked into a decision before you even do your investigation. Maybe when they call you and say “Hey, Susan, we need to have an investigation done about Harry. Now, we think it’s just Harry being Harry, and we’re not going to be able to do anything with him, but we do feel like we need to respond to this person’s complaint.” I have alarm bells go off when I hear things like that.
JoDee, has that ever happened to you?
Well, I love your example of saying “that’s just Harry being Harry,” or I’ve also heard them say, you know, “We need to do an investigation here with Susie, and Susie is one of our rock star performers, and I’m sure nothing has happened there. I’m sure she hasn’t done anything wrong, so find out what…” You know, so all these assumptions that are made, or sort of even planted in your head that, “Well, it can’t possibly be Susie.” [Laughs]
Right, right. And I think the best thing you can do when you get these signals from leadership that they’re already locked into a decision, it’s time to educate that leader and say, “Listen, based on the allegations raised or the complaint we have, I need your support, because I want to do a thorough and as objective as I can investigation. And I will come back to you with my findings, and I’m happy to sit with you and we’ll figure out what the path forward is. But I need your support that we’re going to run a good, legitimate, clean investigation.” And honestly, when you use that kind of language with leaders, they’re like, “Of course, of course, of course we would.” But you know what? I’m on notice that there was assumptions made, and so when I come back, I might have to be more forceful than I normally would. So good luck, if that’s an obstacle you’ve seen. That’s one way I think I’ve tried to approach it.
Right. Another pitfall – what about when the documentation around the investigation is sloppy?
I gotta tell you, I’m sure that I’ve been guilty of this in all my years of doing investigations. Sometimes I’ve done a better job at documenting everything, and other times, I was so busy that I didn’t give it the attention that it deserved. And I’ll tell you, that really opens up the organization to risk. I can think of some examples of this. I’ve seen where I’ve actually gone in after some people have done investigations, I can’t make hide nor hair of what they’ve said, because they did all in handwritten notes. And maybe that HR person’s gone and now we have another complaint that’s come up about this person. They didn’t make complete sentences. I can’t read the writing. I’ve seen sometimes people put their personal opinions in the notes, which is a big no-no. You’re gathering data. You’re not… You’re not, in your notes anyway, writing what you think about what the person has said or done. The one that I think I have been guilty of, especially early in my career before I had some, you know, pivotal learnings on this, is that I would listen to a complainant and I would hear all their allegations or they’d give me a laundry list in writing sometimes. And then I’d start to interview people who they said were witnesses, or I’d get… talk to the accused, and they’d give me more witnesses. I wasn’t as tight as I am today about capturing every single allegation and then making sure that whoever the witness was that this person says either heard it or saw it or experienced it, that I took every allegation and make sure I asked it of every single witness. Sometimes I would talk to a witness and they’re like, “No, I was never in that meeting,” or “No, I never, ever saw Jack do anything inappropriate,” blah, blah, blah. They shut me down at the top of the funnel, they shut me down early, and I did not force my way down to the bottom of that funnel and ask the specific allegation. I am so much better at it today. But I get it, especially if you’re not an experienced investigator, you just want it to be over. And the person you’re talking to is like, “No, no, you know what, I’ve never seen anything in the workplace that made me uncomfortable. No, I can’t imagine that Harry would ever do anything.” And I didn’t ask that specific allegation. So that is sloppy. And it could worry… worry me if I would ever… I don’t want it to be an obstacle that others face.
Right. I think for me, too, part of it for me was typically that I’m not asking key questions – right? – or getting the key details around it. So then when I was interviewing someone else who might have been there, I was missing the key questions to ask. You know, I felt like I had a grasp on the situation, still I… till I started digging into it and I’m like, I don’t even know. What was this meeting? Or where was that meeting held? Or people said, like, “Well, I don’t think I was there. What day was it? What time was it? Where was it?” I’m like, ugh.
It can get really foggy really quickly, and so I have learned that the preparation for every interview is absolutely critical. And so if you’re talking to witness A, B, C, or D, you’ve got to go back to the original complaint, figure out where were they allegedly? What did they allegedly see? And be very specific. Don’t leave the room… that interview room with that witness without asking the very specific allegation. And I know that sounds really simple, but I would say that most people who do investigations, they don’t do them very often. And sometimes it’s a line manager is doing them because it’s, you know, it’s not EEO related, it’s… maybe they’re looking into a work infraction. They aren’t doing that work up front before they walk into that interview room, and that’s where I… It’s just a huge pitfall.
Yeah. Well, speaking of that one, that’s number four, Susan, is conducting the interview without good preparation. And I think you have a nice model for this that you use.
I do. And actually, over time, it’s really been kind of under development, but I still probably will make tweaks to it in the next investigation I do. But when I meet with an individual and the… a complainant, or someone making… raising allegations, I’m really in a heavy listening mode, and I’m going to capture what they’re telling me as succinctly as I can. I won’t capture verbatim, but I’m going to capture what they’re… what they’re telling me. And I’m going to keep asking them open ended questions like, “Who was there?” you know, “What happened?” “When was it?” The Who, what, where, when, and why. Sometimes I’ll ask why. “Why do you think this has happened?” And I’m going to capture as much specifics as I can. But let’s say I’m ready to go into a witness interview, or even the accused interview. The preparation I’m going to do is I’m going to first make sure that I introduce myself, I’m going to try to create as much rapport I can with the individual I’m going to speak with, because I’m going to ask them to open up and be honest with me, so I know I’ve got to come at it with not a NCIS [laughs] interrogation approach.
I gotta… I gotta come in… Since you’re authentic, and try to build rapport. I’m gonna explain who I am, you know, if I’m an outside consultant, which is what I do now. And I’ll explain that the company has engaged me to investigate the concerns that have been raised. And I will have some preliminary things that I want to make sure that we set kind of the ground rules for this meeting. I’ll explain it’s a one-on-one conversation. Of course, if it’s a union employee, they can exercise their Weingarten Rights and bring a union rep with them. But let’s say it’s not, it’s a one-on-one. I do ask them to confirm they’re not recording the conversation and I tell them I’m not recording it either, because I want to make sure that we are having open dialogue without any stress or any escalation of it. So it’s one-on-one, no recording. I ask them to confirm it… if it’s a virtual interview I’m doing with them, I ask them to confirm there’s no one else in the room or within listening distance. I think that’s important, because someone could be sitting right outside the door. I do tell them I’m going to jot down notes, and I tell them, “I’m gonna capture the essence of what you’re saying, but it won’t be verbatim.” And I encourage them if they want to take notes, they’re welcome to, because I don’t want a power struggle here as much as I can. You’re welcome to take notes, because I’m taking notes, and I explain I do it so I… when I reflect later on what they said, that I’m as clear in my memory as possible. I do remind them there can be no retaliation for them participating in this investigation. That’s extremely important if it’s EEO-related, but you want to make sure that you… on the record, that you’re telling them that by your participating in this, there can be no harm to come to you or any type of retaliation. If you sense that might be or fear that it might be, I encourage them to contact me immediately and make sure they have my email address, my cell phone, so that they can let me know immediately. The next thing I do is I tell them about confidentiality, that I’m going to work as hard as I can to keep what they tell me confidential, but I do operate on a need-to-know basis. So if someone’s raised allegations about them, or that they were party to, it’s possible that I may need to provide their name to the accused to get the other side of the story. I’m going to ask them to hold it in confidence and not share what we’re talking about, but I’m going to tell them the why behind it is because I’m trying to run a thorough investigation and if people were talking about it or gossiping about it, it can make it difficult for me to get to the truth.
Right. And of course, that’s… the confidence issues are always tricky, too, right? So many times people say, “I want to report something, but please don’t tell anyone about it.” [Laughs] Right?
[Laughs] Yes. And I say “I’ve got to stop you right there,” right? Because if you tell me something, I’m gonna have to investigate, and I can… I operate on a need-to-know basis. Yeah, you’re right, JoDee, we gotta tell them, right? Then I do take time to ask the person… I’m gonna tell them I’m going to be asking them a series of questions and I’m asking them to be honest in everything they say to me. And you think, okay, well, that’s silly, of course they’re gonna be honest. No, not so much. Studies have found that if you ask someone to be honest with you before you start asking them questions, there’s a greater likelihood they will.
If you wait till the end and they’ve already said some things that were crossing the line or maybe not all that truthful, they’re too… it’s too late. So before I ask question one, I ask for their honesty.
That’s very interesting. I…
Yeah, it doesn’t mean they will be, but there’s a greater likelihood they will be. Yeah. I do tell them what’s going to happen next before… I say I’m going to ask you a series of questions and when we get done today, if it’s the complainant, I’ll definitely get back to them. If it’s the accused, I’ll tell them I’m gonna get back to them and I tell them approximately when and I say if I don’t… if I don’t have my investigation completed by that date, I will at least give you a touch point, because I don’t want someone to have an interview, and then what I’ve seen happen sometimes is they’ll go away and HR or whoever’s investigating like crazy, but the individual thinks nothing’s happening. And I want them to know that work’s… it’s going to take some time, here’s the… you’ll get a touch base from me. I do always ask, “Who else besides yourself do you think I need to talk to to fully understand the situation?” And I’m certainly going to ask that before I leave. And then if you if you have any other documents, recordings, or anything else I’m going to need to do a thorough investigation. It may be they’re holding, you know, a smoking gun, or something that I’m going to need to see. So anyway, I put those together over time to make sure I don’t forget to make sure that… that I go on the record with those things. Now, the other thing I do is prior to every interview, I have gone through what I know the data to be and figure out specifically the allegations I want each person to at least respond to. So that’s really been helpful to me. Well, so the last question or pitfall that I’ve seen is when the HR person or whoever else is leading the investigation isn’t viewed as objective, whether it’s true or not. And I have seen that in some organizations, where HR just… they get painted with a broad brush, that maybe there’s not as much confidence in that department and when an investigation comes up, they think they may be too aligned with management to do an objective job. I’ve seen it happen. And that’s usually the time when I get brought in from the outside or, you know, people like myself get brought in to run the investigation. And it’s not because there’s anything wrong with HR, and maybe they would have done a fabulous job themselves, but the perceptions are there, and you don’t want to invite that risk. If whoever’s raising the complaint or even if the accused thinks that they’re not going to get a fair shake, that’s when you want to don’t fall into that pitfall. Go ahead and bring somebody else objective in to do it.
Well, during or after an investigation, especially where the outcome was inconclusive, or the allegations were not substantiated, leadership may not be vigilant to ensure that no retaliation occurs to the person who brought forth the complaint. Susan, how have you found this to be an issue?
Yeah, it definitely can be a pitfall, and I think in the the time surrounding an investigation, usually everybody is so careful. So somebody came forward, we did an investigation, and perhaps we can’t substantiate the allegations. Everybody’s on their best behavior. It’s like, okay, we go back to the individual, they may not be happy, but we go about our business. But you know what? I’ve seen where three months down the road or nine months down the road, it’s time to pick people for some type of a development program. Interestingly, the manager who got accused isn’t selecting the employee who had filed the allegations nine months before. Or in year two, they’re figuring out who to promote to a team leader or supervisor. Interestingly enough, that person who raised their concerns isn’t selected. That can be retaliation. So I think that is just super important to recognize, when somebody brings forth an allegation, you’ve got to be monitoring and watching, really, into perpetuity, that there isn’t this natural human tendency to kind of avoid that individual, maybe not reward that individual. And I’m telling you, it could be with all innocence. But I’ll tell you what, it may not really be… it could be unconscious bias, it could be things that the person, the leadership’s not even realizing they’re doing. And that’s why we as HR professionals have to stay vigilant. Right?
One that I have been a complete failure at at times, a big pitfall for me is closing out an investigation, even if I think I’ve righted whatever needed fixing, but then not checking back in with the original complainant down the road to make sure all is well.
Yes. I will tell you, I preach this for… every time I teach a class about investigations where I work with somebody training them on how to do it, I say, you know what, you can do your very best effort and run a great investigation and come up with your findings, and then have good corrective action, but understand it is not over. Because you want to make sure that you calendar, maybe three months, six months, whatever is appropriate and… based on the case, where you touch base with the person who originally raised the allegation just to see how they’re doing. You can look in the newspaper and see article after article where employees feel like they brought issues to HR, that HR did some type of whitewash, that they didn’t really pay attention to them. “They said it was solved, it wasn’t.” Don’t set yourself up for that. Instead, follow up with the individual say, hey, we worked together on an issue six months ago, I’m just touching base to see how you’re… how you’re doing. And that gives the individual an opportunity to say, “Susan, it never got better,” or “Things are fine,” or “It’s never gonna be perfect.” But then you document that, because if the person says to you, “You know what, nothing’s better,” then you better figure out… How do I reopen the investigation? How do I do a new investigation? How do I look at what’s happening? You cannot just assume that when you’ve told everybody it’s over, that they feel like it’s over.
Right. Susan, do you actually find leading investigations joyful?
You know, I… being the JoyPowered® podcast, I like to think we find we can find joy in anything. I’ll tell you where I find joy in an investigation. I think it’s really important for employees to be heard and be heard in a very serious and authentic way. And organizations that do a good job running investigations, they are listening to their… their employees. And so many times we get involved in an investigation, and we realize that maybe there’s a policy out there that we’re enforcing that people… it’s not really understood by people. And we have an opportunity to learn from every investigation. And maybe it means we need to do a better education job about the policy. Sometimes we find out that we have a policy or practice that’s not very effective, or is not fair. Gives us an opportunity to learn from it and change it. So I look at investigations as an opportunity to hear your employees and fix things that need fixing in your organization. Sometimes it means we’ve got somebody who’s got bad behavior that shouldn’t work here. All right, we’re going to make this organization better by getting rid of that individual, or we’re going to educate or change policies. So yeah, I do find joy in doing investigations.
That certainly is a good example of how sometimes we we need to look for the joy – right? – in what can be not a positive situation or difficult conversations to have, right? But when you’re looking for positive incomes, or how can we use this situation to make things better for our organization for the people involved, for the right policies… So good for you. We have a listener question that came from a listener who completed an evaluation of a prior episode and earned SHRM credit for listening. They asked, “How do you handle someone on probation? A very good worker, but has a problem with authority.”
Hmm. So when our listener says “probation,” I am guessing that they mean maybe their first 90 or 100 days introductory period with the firm. On the other hand, maybe they… maybe they mean that somebody who’s violated a work rule, or perhaps their attendance isn’t good, or for some reason, they’re in the last stage of progressive corrective action and that company might call it probation. So we’re gonna… I’m gonna answer the question that I think works either way. Either way, I want you to get to the bottom of the problem with authority. Like, what does that mean, and what kind of behaviors are associated with it? Is the individual refusing to take orders? Is the individual just surly around the boss? Like, what is the actual behavior? I do think that if an individual is not open to receiving feedback or they have, like, no respect at all for their manager and there’s behaviors that are not consistent with our organization’s values, then we’re gonna have to take some action. And even if they’re the best performer in the world, they may not be the right for the job and right for our company. But before I would go to that type of a, okay, we have to cut the cord here, I would encourage a good conversation between the individual and the manager. Because managers, if they’re enlightened, and they really are trying to do a good job, they want a good performer and them to have rapport, so that there is some onus on a manager to try to build that rapport, to build trust, and really get to know what motivates each individual that reports to them. You know, I’ve mentioned this book before, because I am a big fan of Kim Scott’s 2017 book, “Radical Candor.” She emphasized that employees need to know that they are cared about personally before they’re going to be welcoming being challenged directly. So in your case, listener, I would look to see how does this manager build relationships with employees? Have they made a good effort out at it? And do we need to have the two of them sit down and have maybe a crucial conversation about how can they build that relationship so that this great performance can really continue and the person could stay here?
Good advice. You know, Susan, from the very beginning, I think it’s interesting… and not picking on this particular listener, because I suspect many of us have done this, where we would even describe someone as “they’re a very good worker, but has problem with authority.” Right? And in reality, how could they be? I think we’re probably describing someone who… maybe your organization makes widgets, and they make lots and lots of widgets, right, or their output is really good, but when it comes to conversations or working with others or following the rules, it’s not happening. So we have to rethink, are they in fact a really good worker?
I think that’s very fair. Alright, JoDee, it’s time for in the news. A July 15, 2022 posting by HRdive.com written by Emilie Shumway said that employers are planning 4.1% increases for 2023, the highest since 2008, which, of course we all know, was the start of the Great Recession. So some of the things that Emilie cited were 73% of respondents to the WTW salary budget planning report said the primary reason for these high increases was the tight labor market.
46% pointed to employee expectations are high given the reporting of high inflation.
And 33% have also increased the number of times a year salary is being reviewed from the traditional once a year salary review. And more companies are using sign on bonuses and offering long term incentives like profit sharing, stock shares, etc. than ever previously.
Yeah. Well, thanks for listening today and make it a JoyPowered® day.
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