Show Notes: Episode 68 – SHRM Credit: Workplace Investigations
October 28, 2019
The Joy of Learning
October 31, 2019

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This transcript was created using an automated transcription service and may contain errors.

Susan 0:11
Welcome to The JoyPowered® Workspace Podcast, where we talk about embracing humanity in the workplace. I’m Susan White, a national HR consultant. With me is my co-host and good friend JoDee Curtis, owner of Purple Ink, an HR consulting firm, and author of “JoyPowered®,” “The JoyPowered® Family,” and the most recent one, “The JoyPowered® Team,” that six of us wrote with JoDee. Today we’re going to talk about workplace investigations. We’ve had a large number of our listeners request this topic. Why do you think so many people are interested in workplace investigations, JoDee?

JoDee 0:42
Well, I think because a lot of people just don’t know what to do about it. Not, I mean, certainly there are a number of different reasons or instances on why people should do them. But I think it’s it’s a nervous thing. I mean, even, I think when I was an HR Director, if we had an issue about it, that “Oh, how do I approach this? Who do I go to first? Where do I start? I work with these people every day, and now I might have to say, send a different message or am I, am I accusing them of something? How do I do this appropriately?” It can just be an awkward situation. What about you?

Susan 1:28
No, I totally I think you’re right. I think the words “conduct an investigation,” all of a sudden, I have to put on my big girl pants. I mean, it isn’t like I’m worried about making people happy. It’s like, I’m gonna probably end up making some people unhappy. Because I’m gonna have to ask some tough questions. I’m gonna need to get to the root cause of the issue that’s going on. So I do, I think it just brings a certain levity to the room and seriousness. So we did touch on this topic of running an in-house investigation in one of our early episodes, the one that’s entitled “Harassment.” And in that episode, we did talk about sexual harassment, harassment of anybody because of a protected class. And we talked about, you know, what would you, how would you investigate when someone raised such an allegation, but we got word back from our listeners, they appreciated that, but there’s so many other types of investigations that HR gets asked to investigate, or business leaders, if you don’t have an HR function, that you have to investigate. And they really felt like it would be helpful to have an episode, where we’re just a real laser focused conversation on running an investigation in the workplace. So JoDee, what is your background with investigations? I know you run a consulting firm now, I’m sure your firm gets asked to do them periodically. But also all your years in management of an accounting firm, what, what have, how have you dabbled into this topic?

JoDee 2:49
Yeah, so, interesting, in preparing for this podcast when I really sat down and, and was thinking of examples and what I have done, I was embarrassed. I am embarrassed to admit that after over 25 years in HR, I haven’t done a whole lot of these. And it really made me think back, especially, I mean of course now we do get hired by clients to have us come in and do them. And I’ve done them for clients and other members of my team have done them as well. But when I really think back to when I was the HR Director, I was the HR Manager, that there probably – well, I won’t even say probably, in hindsight, there were a number of times, I think, when I didn’t consider it a investigation, and that I, it really should have been. That I considered the issue, I talked to people about it, but I didn’t really approach it as an investigation in ways that I should have and in ways that we’re going to talk about it today. Now, sometimes, when there were some very specific issues around harassment, I did do that. But I also think I could think back of many examples of “he said, she said” type scenarios that I wish I had followed a more specific format of approaching it in this manner.

Susan 4:22
Yeah. Oh, no, that’s great. I had worked for a very large financial institution in a variety of roles. And so when I was an HR Business Partner, there were times where an issue would come up, and the manager would look at me and say, “Susan, I don’t know if it happened or didn’t happen. Could you look into it?” And back then I did not have a formal approach to investigating, I would look into it and come back with a recommendation. And I agree with you, I wish that as I got, you know, more time under my belt, and I started really doing formal investigations, I wish I’d started from the very beginning with a, with a format or structure, right, that we could look back on and say, you know what, that was fairly looked into. So as my career moved on, and I ended up being an HR Business Partner Manager, had a lot more investigations. You can imagine, a financial institution, there’s a lot of times it’s, you know, did the person take the money? Yeah, did they falsify that bank document? Did so and so actually say such and such about XYZ? Did they talk about a customer to another customer? All these just, I could go on and on with all the types of investigations that I was, have been involved in. I ended up being a Chief HR Officer for one of our independent businesses underneath this large corporate umbrella. And there, I was, really, I owned just not only the investigation, but then the outcome, what do we do about it, and then ensure that that company was really in a good defense position, should someone from the outside ever come back in and look and see what we had done. So a lot of experience there. The other element was, there was a period of time that I oversaw a virtual HR Business Partner team. We had a large chunk of retail employees that were spread all over the US. And we couldn’t possibly have enough HR Business Partners supporting this retail function. So we created a, gosh, 50 to 60 person, kind of people support team where frontline managers up to the first three levels could call, get advice when something was going awry in the workplace or someone’s performance wasn’t what it should be, as well as employees could call and say, “You know what, I don’t think that this is right, here’s what’s going on here.” And all of those types of calls, not all of them, but many of them would involve us doing a kind of a virtual investigation. So that’s probably my experience until I started consulting the last few years. And, like you, being an independent consultant, I have had clients ask me to come in and do investigations. And I’ve also had some law firms who are actually working with a client, and their advice to the client is, let’s bring in somebody from the outside who can run the investigation, because we want to make sure that the employee or the manager, whoever’s involved, doesn’t think that company politics got in the way. Perhaps the HR person was involved along the way, doing their job, giving advice and coaching. And now that it’s erupted into a major situation, let’s get somebody independent. So I’ve done a number of those and do enjoy that type of work.

JoDee 7:19
Yeah, nice.

Susan 7:21
We’ve been excited to see our listenership going up a lot this last year, and now we want to learn more about you and what you think about our podcast. We’ve created a listener survey that will be open for the next few months. If you want to help us out by telling us a little bit about yourself, you can access the survey at surveymonkey.com/r/joypowered2019. We’ll also have a link to the survey on our website. If you take the survey, you’ll have the option to enter to win a set of our three JoyPowered® books, “JoyPowered®,” “The JoyPowered® Family,” and “The JoyPowered® Team.” We hope you’ll take a little time to help us make the podcast at the best it can be. We look forward to hearing your thoughts. Again, you can take the survey at surveymonkey.com/r/joypowered2019. Thank you so much for listening to our show.

JoDee 8:13
Susan, can you give us kind of a quick example of an investigation that, that you’ve done before and maybe just to give some of our listeners the gist of what types of things might be involved?

Susan 8:28
You know, I can think of just so many different types of investigations that involved people absconding with money or, you know, stealing, you know, the equipment and things like that. I’ll tell you, the one that really still haunts me is it was actually somebody on my team. So here we are HR, and we would be the ones running investigations, and this particular staff member, I would have trusted her with my kids. I really would have. And I, an allegation came forth, actually by a third party that this individual was misusing the corporate credit card. And I would have told you there’s no way. I would, I did not go in with that level of objectivity that you’re supposed to have. Now, I did, because it really, at this point, I partnered with security on the investigation, but probably in hindsight, somebody other than me should have been there. Good time to hire someone from the outside, right? Because I was just going in that you would have to prove it to me. And started, just we followed the protocol of figuring out, did an intake meeting with the third party who had had knowledge of it, and then we gathered all the data. And as we gathered the data, that was fair, pretty easy, because you could see credit card, and then I started lining up where the individual would have been and tried to say “no, certainly there had to be a business reason why this credit card would have been used here or here.” And then I just as the facts started coming in, even before we got to the interview, it, I started realizing that I have to really bring this objectivity and my perceptions and belief and trust in this person, I need to set it aside. So anyway, then we did the interview and went through the rest of the process and ended up having to take, take, you know, action, which…painful.

JoDee 10:12
Yeah, yeah.

Susan 10:13
Very common. We did the, the – I was involved in many, many, many that didn’t come as close to home as that one.

JoDee 10:18
Yeah, yeah. That is tough. I was involved in one at one point that was also very cut and dry. It was a guy, he hadn’t worked with us for a very long time, but I had a great relationship with him and did, was, was a very high performer. But it was our IT department that came to me and said, “You know, we’re seeing some unusual data on his…” that somehow I still to this day don’t know how it popped up for them, but this was back in the mid 90s. You know, so certainly there’s a lot of technology around that now, but not then. But they could tell he was spending inordinate amount of time on inappropriate websites in the middle of the day, and I just couldn’t believe it.

Susan 11:06
Yeah, we’re talking pornography, aren’t we?

JoDee 11:08
Yes, pornography. And so I, too, got some other outside parties involved in it. The data was clear, he admitted it. We did terminate him from the company, but we also provided some assistance to him.

Susan 11:25
Oh, that’s great. Yeah. That’s wonderful when you are able to help somebody. Can’t work for us anymore, but we can certainly try to help them with the problem.

JoDee 11:31
Right. And in our, you know, that was in an accounting firm, right? So he was in this, in essence, stealing time from us, right? Because we billed clients by the hour, and we could see what, that he wasn’t making the best use of his time during that. Yeah.

Susan 11:52
So what I’ve done in preparation for today, JoDee, is I went back to all the questions we’ve had from listeners about investigations, and I think it’s a kind of a nice way for us to kind of go back and forth on answering those questions, and also kind of lay out a structure of how we think it is appropriate to approach an investigation. So for our listeners, if you’re a business leader, maybe you’re an HR professional, and you don’t have a formal structure, we think this one is one that I think will be flexible and agile enough for you to adopt into use.

JoDee 12:25
So our first question is, when is a workplace investigation warranted?

Susan 12:31
Okay, great, great question. You know, there’s people who have come into my office, and I, wouldn’t surprise me if they haven’t come into yours too, JoDee, where they said, “My lunch is missing in the refrigerator. I want you to investigate. I want to know who did it and I want them punished,” right? Or similar types of things that people come in and they demand that you investigate. I’m going to say that, no, that probably isn’t the highest and best use of the business leader or the HR professional. Right?

JoDee 12:58
Right. It might be somebody needs to check in on it, but it might not be warranted as a true investigation. Well, and as I mentioned, certainly times when your company is at risk, when employees are risk, if there’s a situation certainly surrounding harassment. I did one, specifically, one time with an employee who was using pornography during the middle of the day, well, during extensive number of days. But you know, when there’s a liability at risk, it could also be as you just mentioned, it could be a customer or outside party calls in and there’s a need to, to respond back to them.

Susan 13:49
Yeah, I think you’re right. And I believe that if an employee or a manager or customer or any, any stakeholder, maybe it’s a vendor who’s on site who was made to feel uncomfortable or they’re, something’s not sitting right with them. You want to make sure that as an organization, you have a place that those types of concerns, complaints, grievances can be heard. The worst thing is if someone is feeling uncomfortable or thinks something’s not happening or policy’s not being followed, and they don’t know where to go or who to go to. So I think that’s very important we have, you have that, then I think you have to do some discernment when a when a concern comes forward. I don’t think every single thing deserves, demands, or requires a formal investigation. But I do think it’s important that you make note of when someone comes forward with an issue or complaint or grievance of somewhat, some, some kind, that you talked to the individual and what the outcome was, is it that you’ve shared with the individual, we don’t, maybe it’s that they didn’t understand the policy. I’ve had people come forward and say, “I cannot believe that Jack keeps bugging me to sponsor him for the bowlathon that we’re going to do, blah, blah, blah.” And the fact is, is that Jack should not be nagging this employee about being a sponsor for the upcoming bowlathon, but there’s not really an investigation necessary. It’s not really, we, somebody needs to talk to Jack about, about it. I think you need to really discern, is this an investigation or not? Let’s just assume that the person coming forward is bringing something that bothers them. So you don’t want it just to die there. You want to make sure that they know if you’re gonna do something or not do something.

JoDee 15:21
I think that I love your point about sharing back with a person the outcome or the result. I know, you know, hundreds of times I’ve heard people say or even friends of mine or family members of mine say, “Well, I reported this to HR and nothing was done about it.” Well, actually, maybe something was done about it. I mean, there’ve been times when I actually knew something was done about it. But yet, it, it was never shared back with the person who reported it, and many times you might not be able to share all the details or what the conversation was, but at a minimum to say, “Thank you for bringing this issue to our attention. We have addressed it.” And that, that might be all you can say at times.

Susan 16:12
And I do think it’s absolutely critical at the end of an investigation that you go back to whoever brought forth the concern to do just that. And we have addressed it and, and if you have investigated something that that person brought forward, and you’re not able to collaborate, to corroborate it or substantiate it, I think it’s important, let the individual know that you were not able to, but if any new information comes to light, that you are more than ready to reopen it and reinvestigate, but the fact is, we don’t, we can’t substantiate, and I like to think very carefully about who I’m dealing with and what words I want to use. But I want them to know that. If I have corroborated any part of it, I want to let them know that I really appreciate it and we have taken action and assure them should they ever see anything come again that makes them uncomfortable or they feel like the problem is not resolved, that you have an open door, right? Yeah, so good.

JoDee 17:00
Susan, who do you think should lead investigations in a company?

Susan 17:05
You know, a lot is going to depend on what the concern is that you’re investigating and how large the company is and what resources you have. You know, I believe that if there has been any kind of defalcation or theft or any type of, you know, physical violence, if you have a security person, if they, definitely want them to be in the investigation, they may lead it depending on how your organization wants to structure it. HR should be part of anything that involves an employee for sure. If it happens to be what we’re seeing a lot more with some of our clients is cybersecurity issues, maybe data, privacy being not secured. Maybe it’s somebody on the inside of a company that potentially is sharing information they shouldn’t, things like that, then whoever you have in your technology, in IT, who’s responsible for cybersecurity is who you want to have on the team. If it’s a violation of a company policy, it could be your compliance area too, maybe the, someone’s working an outside job that they haven’t told you about that you think’s in conflict, something like that, you may want if you got a compliance person, you may want them to weigh in, although the HR person probably will lead it. And then finally, if you have an internal labor law attorney, I would definitely want them to be aware, if I was involved in an investigation, either at the beginning if I think it’s sensitive or harassment related, or certainly at the end, if we found that there’s something in the company that we need to change, maybe a policy, an approach, maybe how we communicate something, I would want them to be aware. Certainly line managers, if it’s a issue of something happening in the production line, may not have them lead it, but I would think that you as the HR person might want to partner with them on it.

JoDee 18:46
And when do you think – we, we both shared examples or stories about when we’ve been called as an outside consultant to, to lead the investigation. When should companies try and handle it internally, and when might they want to have an outside consultant? And, and you mentioned about bringing in an employment attorney, but when might they just bring in an outside consultant, that HR consultant to lead it?

Susan 19:18
You know, if it involves your C-suite, and it’s really difficult for the HR person, I think, to be able to be perceived, not that they can’t do it, but be perceived as really running a fair and good and thorough investigation when it’s somebody at a higher level in the organization. I think that’s a great time to bring in an outside person who has no skin in the game, they’re going to do the investigation, give their recommendations and then walk away. I think that’s the time. I also think if the HR person or HR people have, are named in a particular allegation as being a supporter of the bad, bad behavior, I do think it’s important that somebody outside of the company to come in and do it.

JoDee 19:58
And then certainly, too, if the HR person does not have experience in doing this or maybe in a small organization you might not even have a, an HR person who has done this, I would always recommend bringing someone in.

Susan 20:13
That’s right.

JoDee 20:13
to lead it as well, too.

Susan 20:14
If the individual doesn’t feel really confident or comfortable doing it, it’s a great time to think about somebody from the outside. I would say most investigations do occur inside companies, and they feel very comfortable and confident getting it done.

JoDee 20:25
Yeah. Yeah. And at what point do you think the owner of the company or the senior executives should be aware of an exec, of an investigation?

Susan 20:36
You know, if it is an everyday type of situation where, perhaps we have an employee that might be falsifying their timesheets, let’s just say that. I do believe that HR and the operations leader of that or, of that particular unit, can run an investigation, pull the data, talk to the individual, and make a determination. We probably don’t need to go to the owner of the company or their senior executive. However, if there’s an investigation and if it’s harassment, for example, or it’s material, you know, impact to the company, I do think it’s important that the most senior level person, and you’ll have to determine that based on the the company size, should be aware an investigation is starting. If it’s harassment related, we have to ensure from the moment that that person came forward to bring their allegation that there can be no retaliation for him or her having come forward. And you in HR, as good as you are, and no matter how big your team is, you’re not able to protect a person from retaliation of what happens back in the workplace because they’re not, you’re not physically there. So it is time to bring in the most senior level person that you think can help ensure no retaliation, or no, you know, harm that could come to this person while you’re investigating or even when the investigation is over.

JoDee 21:52
Right. And certainly there should be policies in your employee manual surrounding that, right, to ensure people understand that no retaliation will, will occur or it will be prevented.

Susan 22:08
Yeah. And I do believe when you’re talking to somebody who’s raising the allegation, before they leave you, after you do your interview intake meeting, you’re talking to them, what, you know, what really do you believe happened? You assure them there can be no retaliation. Let’s, let’s make sure they know it. And so remind them of that and have them reach out to you if they have any wind or feeling that perhaps something harmful is happening to them based on the fact that they came forward with an issue. I give them my my cell phone number and I say call me. I know, the middle of the night. I’m not that good, but…you might have to leave a message, but I’m going to call you back first thing in the morning, and I do that whether I’m the outside investigator inside a company or if I’m inside that company,

JoDee 22:47
Right.

Susan 22:48
Yeah.

JoDee 22:49
Well, in a nutshell, Susan, what do you think are the most most critical steps to follow in an investigation?

Susan 22:56
Okay, so this is the structure that I’m hopeful that some of our listeners, if you don’t have a structure that you like or you’re starting from scratch, that I would follow. So let’s do number one. Number one is really talking to the complainant. The complainant, what we mean by that, the person who has allegations, or sometimes is a third party reporter, or it’s a whistleblower. It can – third party reporter could be someone who has witnessed something in the workplace that, that they believe is not right, maybe a violation of policy, maybe a violation of the law, that they come to you and they say, “Now, this did not affect me. But you need to know XYZ.” A whistleblower very well could be coming forward to say to you, “You know, I believe that there’s a shortcut being taken that is not right. It’s against the law, and I think it’s been done for whatever reason,” we have to make sure that, that, I think, is really where you start. Let’s do the intake meeting, understand what the concern is, what the impact is, and here’s your time to really ask all those questions. The what, the when, the where, the why, get as many specifics as you can, sometimes the person is so shook up that maybe that’s not the right meeting, maybe we need to let them, you know, share the big picture and get back to them within the next few hours or the very next morning, and do that teasing out of all the details that you’re going to need if you’re going to run an investigation.

JoDee 24:17
I will say Susan, I’m not sure if this is is common, but for me personally, almost all of the investigations that I’ve been a part of started with a third party reporter or a whistleblower, it was, it was someone who had observed the situation, had observed a harassment or an unfair practice and, and came to me with that.

Susan 24:43
Interesting. I, JoDee, this will not be a surprise to any of our business leaders or HR people who are listening, but it’s not uncommon that an employee will come forward and say, “Hey, I want to share something with you, but I don’t want you to do anything about it.”

JoDee 24:57
Absolutely. Absolutely.

Susan 24:59
And I gotta tell you, before the person says the next word, I want to tell you, I want you to jump in there, everybody listening, jump in there and say, “Stop. I need to share with you that if you tell me something that I believe could be a violation of a company policy or against the law, then I am going to need to look into it. I just want you to know that before you say another word.” Most of the time they laugh and say, “Oh, Susan, it’s nothing like that,” then they go ahead and tell me. Yeah, the fact is, I’ve had to say to people, “Remember how I started our conversation that if you told me something could potentially be a violation of a policy or a law, that I’m going to look into it. You’ve shared that, what you’ve just said, I need to look into it.” And they’re like, “Oh, my gosh, I wouldn’t have told you.” I said, “That’s why I had to tell you at the beginning.”

JoDee 25:39
Right, right. Absolutely. Step number two is to create a roadmap and timeline of the data you want to gather. Think about the people you want to interview, who else you might need to engage to conduct a robust and fair investigation. Certainly, I think, too, it’s important to only involve the people who are connected to it or involved in it. You don’t want to start rumors, you don’t want to, we even, in our earlier question about when is it time to involve the senior executives, sometimes that might be important and sometimes not. You don’t need to involve people who don’t need to be involved in the investigation. But thinking through about the need for speed, sometimes there might be more of a need for that than others. Who else you might need to engage, some of those other people Susan mentioned earlier, is that the police, is that subject matter experts, is that your employment law attorney, who, is that your security team, or I’ve had the IT department need to get involved, maybe not the whole department, but an expert in IT to get involved to check website information or emails that might have transpired.

Susan 26:59
I love this, doing this roadmap and timeline, because usually with an investigation, certainly there, if it’s a violation, potentially of a harassment or other protected class type of issue, the EEOC really does, they go back and take a look at what you did to investigate. They’re going to look to see what type of speed did you actually have? Did you take it seriously? Did you clear your calendar? Did you start your investigation right away? And so I know that every HR person and every business leader listening, they have very busy schedules, right? The fact is, when someone comes forth with an allegation of wrongdoing, you owe it to the company, you know what, to the individual, to clear your calendar. You’ve got to. And there may be some things that – I’m speaking to the board this afternoon. Okay. Well, what can I do before that board meeting? What can I do after that board meeting? Because your failure to act swiftly, I think, hurts your credibility not only to your employees, but anybody, outside agency who later looks at it. I guess my other point on that, let’s say you do find that something wrong, something bad did happen, someone did something wrong, and you then take action against the perpetrator of that particular wrongdoing. If it took you three weeks and the person was working all during those three weeks, it really diminishes how serious was it that you went ahead, let that person work up to the end. That could harm you should that individual come back to you and say that they were wrongfully discharged.

JoDee 28:21
Yeah. And actually, that might be another reason to consider outsourcing the investigation, if there is a need for speed and for whatever reason is, is you’re not going to be able to do it. Get someone else involved, who can lead the, to meet that speed and timing requirement.

Susan 28:41
Good point. Good. So step number three. Now that you’ve got your roadmap, your timeline, figure out who else you want to involve, number three is really go gather the data. Alright? And there’s different ways to do this. We’re going to get to interviewing people, which will be step four, but in gathering the data, I think it’s really, really smart if once you realize, okay, here’s the people I’m going to need to be talking to, take a look at how long have they been with you? What roles are they in? What do we know about these individuals? Because it’s going to help you. You’re not trying to run an NCIS investigation. You’re trying to run a thorough and reasonable investigation and you’re going to probably at some point have to make some judgment calls. And understanding who you’re dealing with might help you decide credibility of people at some point. So take a look. What do we know about the individuals, you know, if it’s that the person was falsifying timesheets, I want to go back and look at all their timesheets. Do we have any other, like, look at their log on, when, when were they logging in and logging off of their computer? Is there any access to the building that we can, with a card, that we can look at what is, what are the, what’s the data that we could take a look at? Sometimes in a manufacturing floor there might be cameras that we can take a look at. Is there any film I want to look at before I go in there? This person says that that individual was sabotaging XYZ, can I see them on that particular day that she said that she had witnessed it? So what’s the data that I can pull?

JoDee 30:06
And some of it too might just be, has there been any other issues with this person in the past? Have you had an investigation on them before? Or have there been any other performance issues noted that might connect to the same issue?

Susan 30:23
Yeah, no, I think that’s smart. Yeah. So really think long and hard before you jump into your interviews. But then, once you’ve done all that, you’ve gather the data you think you can at this point, not to say we can’t gather data later, but when we have that, then we’re ready for step number four.

JoDee 30:38
So step number four is to begin the interview. So Susan, I think you have an SOP, standard operating procedure, of who to interview when. So tell us what that is for you.

Susan 30:50
Yes, I always want to start again with that complainant, that whistleblower, that third party reporter, and get, as I said, as much detail as I can from them, so that I can then test out those facts against others to see if I get some corroboration. So then right after the complainant, I want to talk to all of the witnesses that the complainant, the whistleblower, third party reporter said may have information or knowledge about this, about the situation I’m investigating. So I want to talk to each one of them one on one. And again, remember how I said with the person who came forward, especially if it’s harassment related, I make sure they know there can be no retaliation. I tell that to every, every one of the witnesses I bring in as well, because I want them to know that there can be no harm to come to you, and if you feel there is let me know, by your participating in this investigation. I also want to make sure that I ask for their keeping it confidential until we have an outcome. I know that’s risky, given the National Labor Relations Board ruling saying that you cannot ask for blanket confidentiality, because employees have a right to protected concerted activity. They can talk about wages, they can talk about benefits, they can talk about management practices, they can talk about bad things happening in the workplace. So what you do, you have to give them a specific reason. “I’m going to ask you to hold this in confidence because I am trying to investigate to get to the root of this, and should there be conversation about it in the workplace, I may not be able to get to the truth.” So you ask for their confidentiality.

JoDee 32:17
Absolutely.

Susan 32:18
So after I’ve talked to all of the witnesses that the complainant mentioned, sometimes one of the witnesses to the, will then give me other people, they said, “Well, you know, Jack and Harry were in the lunchroom at that same time.” Then I realize, oh, my gosh, there’s more people. So that list can grow. I will, I want to make sure that I talk to anybody who I truly believe could have some information that would help us. After that, if I’ve talked to all of them, then I would talk to the accused. I’ve had people say well, I like to, the accused to know that they’re under suspicion right now. I say no benefit of that. Wait until you have your ducks lined up, that you understand what the real allegations are. And at this point, you may have them some corroborated, you may not, but it’s time to get with the accused, and that accused does have the opportunity, I believe, to know what they’ve been accused of. If it was a one on one, individual type of thing, they deserve to know who has accused them. So they have a right to be able to respond, but I also remind them about no retaliation. And then after I’ve talked to the accused, I am going to talk to anyone else that the accused thinks could be a witness. So they may say that somebody else has knowledge of this, that I need to speak with. So I do. Yeah, that’s my standard operating procedure.

JoDee 33:31
Yeah, I love it. I think that’s good.

Susan 33:35
So, i-sight.com offered 16 suggestion, suggested questions to ask complainants. JoDee, I thought it might be helpful for our listeners if we just went through those real quick. People always say, “Well, what questions should I ask?” I’m a big believer that, especially with witnesses, I start with very wide open questions, because I don’t want to plant the seed and say, “Did you see you know, Mary touch Jack,” whatever it is. I don’t want to start with that, because I’m planting, I’m planting the seed. Instead, I always start with a very open ended question like, “Frank, is there anything in the workplace right now that is making you uncomfortable? Is there anything that’s occurred in the workplace that causes you any concern?” Those type of really wide questions. Sometimes they’ll say to me, “Do you mean when Mary hit Jack?” And I say, “Well, tell me about, tell me more.” I mean, I never say yes or no. And other times they say, “Nope, nothing. Everything here is perfect.” And then I have to keep going deeper and deeper and deeper. Because you have to ask, if, if Mary or Jack says, “You know, Frank saw Mary touch me.” I’m going to have to ask Frank, “Did you see Mary touch…” I, when I, when I start making up, making up names I can never remember who I’m asking. “Did you see Mary touch Jack?” So yeah, anyway, so I think it’s helpful to get some, some good questions just to have at your disposal. So why don’t we share those?

JoDee 34:48
I like starting with those broad questions first, and then getting into just some very specifics. What happened? What happened exactly the date, the time, the duration of the incident or the behavior? Did Mary touch Jack one time on the arm? Did they touch him three times? And how many times did that happen?

Susan 35:10
i-sight.com also says, you know, questions about where did it happen? How did it happen? Did anyone else see it happen? Who? What did they say? What did they do? Was there physical contact? Describe it? The demonstrate it, I don’t know. They say demonstrate it, but depending on what they said, I may ask for that or I may not.

JoDee 35:32
Then also asking them what did, what did they do in response to the incident or behavior? Did they physically do anything? Did they say anything in response to the incident or behavior? And how did the subject react to your response?

Susan 35:50
Yes. And they also add the questions, did you report this to anyone in management? If so, to who, and what did they say or what did they do? Did you tell anyone about the incident or behavior, who, what did they say or what did they do? And do you know whether the subject of the allegations has been involved in any other incidences?

JoDee 36:10
Also, do you know why the incident or behavior occurred? Was it in response to, were they provoked, were they set up for this? Do you know anyone else who could shed light on this incident? And is there anything else you want, you want to tell me that I haven’t asked you? Which is really important to ask as well.

Susan 36:32
I’ve gotten some information I didn’t even, I wasn’t even on that planet when they gave me more information that really was helpful to an investigation. I also like to add, JoDee, what is it that you hope will happen? And I know in a, in an EEOC investigation, it is smart to ask what the person’s hoping for, the outcome they’re hoping for. I always like to just word it a little more generically. What is it you hope will happen? And I don’t want the person to say, “I want a million dollars because I’ve had a lot of pain and suffering.” I’m hoping that they’re gonna say something like, “I want it to stop,” or I think that, you know, XYZ, but it’s good to know what the expectation of the complainant certainly is. Sometimes the witnesses, depending what they say.

JoDee 37:09
And I don’t want to over-generalize the issue, but I will say for me, in most investigations I’ve been involved in, the answer to that question is, in fact, what you just said, Susan, “I want it to stop.” You might think the answer will be, “I want them fired. I want them removed. I want the company to pay me. I want a legal action.” But most of the times, it’s, “I want it to stop.”

Susan 37:34
It does sort of help in my feeling about the person coming forward, the credibility, it’s like, you know, “Why are you here?” “Because this is intolerable.”

JoDee 37:42
Yeah. Yeah. Yeah.

Susan 37:43
Interesting. So number five in things to do or the structure of an investigation. Once you’ve talked to everyone you think you can talk to, you’ve looked, you’ve gathered all the data you can, you think you possibly can based on what people said, what you need to do. Step number five is lay out all the information and really analyze what you’ve learned, and then I want you to look at it and assess if a reasonable person would say the concern is real, that the allegations are true. And if harm has been done, and we’re looking to see really, additionally, has a policy, a law, or an organization value, you know, been violated.

JoDee 38:23
Step number six is to meet with the owner or a senior business leader and share your findings and determine, and together determine the course of action to take. Unfortunately, sometimes you might feel the findings are inconclusive. It’s, you know, “he said she said” or the severity of the situation can be difficult to to prove, and you need to get back to the complainant, the whistle blower, the third party reporter and let them know, we mentioned that earlier, and ask them to share if new evidence comes to light, as you would be glad to really look into it. And also, of course, if you feel wrong has been done, what is the correction act, the corrective action plan needed?

Susan 39:14
Yeah. And I really love for that meeting to be between the investigator and senior management together. “Here’s my findings. But now let’s talk about what do we think should happen.” If the HR person sends an email to the owner, the senior leader and says, “Here’s what I think, here’s my findings, here’s what I think you ought to do.” And the senior leader says, “You know what, I don’t think you see the perspective of XYZ. I think we should do something differently.” You have a smoking gun, because you have HR who’s recommended something and the company didn’t do it. So I do think it should be collaborative.

JoDee 39:45
Yeah. Yeah.

Susan 39:46
Number seven, you need to execute on the action landed on. This is where whatever you decided with the senior leader needs to happen, you actually go out and make sure it does happen. I do think it’s important that once you’ve done it, you’ve gone, you’ve taken your action, you’ve gone back to the complainant, we talked about going back to the accused, the witnesses, I always tell them, “I’m not going to be able to get back to you. I’m not. I appreciate your input on this, but as a witness, I don’t get back to people.” I think it’s time then, really, to do your summary report. And that’s where you want to have tied up in a bow really, very nice and neatly a summary of what the issue was, who was involved, that you investigated, who did you interview? I keep my interview notes with this package, any data I pulled, I would keep it, maybe the policy that I think was in question, whatever that policy was at that point in time, I’d make a copy of it, because we know policies do change. And I would say when we, what action we took, when we got back to the complainant, when we got back to the accused, and then I would put it in a very safe file so that should I have similar things happen in the future, I can go back and see how did we handle this type of a situation? What was the outcome? So that I can hopefully be consistent moving forward.

JoDee 40:55
And number eight is figure out if there’s a way you can prevent a similar story from occurring in the future, based on what you’ve learned. It might be reviewing a policy with the team about having a town hall meeting. I want to, as we mentioned at the very beginning of this, investigations are, are way more than just thinking about harassment issues. But I have to say, I can’t tell you how many times we’ve been asked to do anti-harassment training because there was a harassment situation and that they, they’ve had us come on to do the investigation or they did their own investigation, and then concluded “Wow, we really need to do training on this topic.” And although I can also tell you we’ve been asked to come in to do training in lieu of an investigation, which of course we have, you know, really denied that or said “Hold on a minute. We, you need to work through the investigation.” It’s always a good idea to have, to have training on this topic. But what can you do to to prevent that from happening again, whether it’s awareness training, whether it’s communication training, whether it’s coaching or mentoring of individuals or leaders, is that putting good or better policies and practices in place to prevent it from happening again, as well?

Susan 42:26
That’s great. So just some last minute thoughts as you are thinking about running internal investigations. I’m a big fan of having two investigators whenever you can. I know that depending on the size of your shop, depending on the situation, it may not be possible. If it’s an operations issue, you and the operations leader, you as the HR person and the operations leader conducting it together makes such good sense. If it’s a harassment one, perhaps you want to have two HR people working on it. The beauty of that is that you have multiple people, at least two people, hearing from the, the interviews and drawing their conclusions, then, then actually talking and calibrating with each other. I think it’s helpful. I think it’s, when analyzing data, it’s helpful to have two sets of eyes on it. So where you can have two, I think it’s a beautiful thing.

JoDee 43:11
Yeah, I agree. Susan mentioned earlier about the speed and the thoroughness. You don’t want to have employees continue to work in an unacceptable environment or any inappropriate environment, you need to work through it quickly and resolve the issue.

Susan 43:30
Absolutely. And then finally, just to reinforce, I really do think it’s smart if you have legal counsel, either inside or outside, if you believe that an investigation on a particular topic could ultimately lead to a charge, or to a lawsuit or attorney demand letter, it’s so smart to just check in with your legal counsel. Let them know what you’re working on and the approach you’re taking in case they have any advice for you.

JoDee 43:55
Very good.

Susan 43:56
All right. Well, thank you. Happy investigations to you.

JoDee 44:01
The JoyPowered® Workspace Podcast is sponsored by Purple Ink. Purple Ink’s customized HR services will help you make your workspace JoyPowered®. Whether you’re looking for help with recruiting, compliance, or leadership training, we listen to what you need and tailor our solutions to you. What we won’t change? Our positive approach. Check out purpleinkllc.com, that’s Purple I-N-K L-L-C dot com, to find out how we can help your business.

Susan, we have a listener question today. And as a reminder, we welcome listener questions anytime on our voicemail at 317-688-1613 or our website and social media handles you will hear at the end of this podcast. Today’s listener question is from Mary in Indiana. She has a coworker who puts on a good dose of perfume every morning before she comes to work. Mary has a keen sense of smell and often gets sinus headaches, which are aggravated by any strong odor. Mary has tried to gently mention it to her colleague, but but gets shut down each time she starts to bring the topic up. Mary wonders, what can we do to get our workspace joyful again?

Susan 45:28
Mary, I feel your pain. Yeah, I get sinus headaches, too. I’m very sensitive to smell, so I can understand how that can happen. Mary, you mentioned that you very gently have tried to approach your colleague but get shut down. I do believe that, if you prepared for that discussion, sat down with the coworker and said, “I know I’ve tried to talk to you about this before, but I don’t think I’ve explained to you why, as much as I think that you smell wonderful every day, how it affects me,” and I think you ought to share with her that you have, get sinus headaches and it just, it lingers. And ask if there’s a way that you can work it out. Now, if it doesn’t work, if the person says, “Hey, I, it’s my right to wear whatever I want to wear, and you need to get used to it,” I do think it’s worth going to your manager or to HR and just say, “I value my colleague a lot, but is there any accommodation that could be made? Could I move spaces? Can I be a little bit further away? Could I start working remotely?”

JoDee 46:25
Right. Right.

Susan 46:26
What else can we do? Because I want to make this a win-win.

JoDee 46:29
Maybe Mary’s colleague could work from home as well.

Susan 46:32
So that could be a real win-win for her if it’s something she wanted to do. But yeah, I don’t think, Mary, you need to silently suffer there. I think that it’s real, and I think that bringing it forward to the person is a classy thing to do. And if not, I think you’ve got to go to HR or to your boss. Good luck.

So best practice sharing. Recently we asked our listeners, “The labor market is tighter than ever. What is your organization doing differently to attract talent?” So we, we’d love to hear from you. If this is the first time you’re, you’ve heard this question, feel free to call us or to shoot us a message on it. Here’s what we’ve heard so far. One person said “We have enhanced our employee referral program. We are amped up on, we’ve amped up our dollars paid for our most difficult jobs to fill.” Are you seeing that JoDee?

JoDee 47:19
You know, not as much as I would like to, and quite honestly, I’ve read before that, that employee referral bonuses, although a lot of companies have them, it is many times the least underused method, uh, benefit of using, because employers, many times, will put it in their employee manual and then forget to remind people about it or forget to say, “Hey, we have a you know, a difficult position to fill. Do you know anyone?” or “Post this on your social media.” so although a lot of companies have it, they don’t necessarily promote it. So.

Susan 48:00
So I think it’s a great untapped resource. Some places, I hope that they maybe take another look

JoDee 48:04
Exactly.

Susan 48:05
The second one we’ve heard, go ahead JoDee.

JoDee 48:07
The second one is, “We are being more visible at conferences and events related to our field. We send more people and ask them to network like crazy and come back with names and contact information of people we should have on our radar for the future.” I love that. So many times we go to conferences and events, and we might be looking for new clients, or we might be looking just to network with others in our profession, but not specifically thinking about it as a way to attract talent.

Susan 48:40
Yeah, and I, what I love about it is you don’t, not for the immediate needs you have, but for the future, you know, really keep those names, those people, maybe do some follow up, reach out, connect with them on LinkedIn, start conversations, and so that when you have an opportunity, you’ve got a bench to go to.

JoDee 48:54
Right.

Susan 48:55
Love the idea. Good. Well, we’d love to hear more ideas, so, so please let us know what you’re doing in this tight labor market. We’d love to hear.

Alright, so for in the news, an article in the Wall Street Journal on July 1, 2019, was entitled “Walmart Uses Virtual Reality Before Promoting Workers.” This article is great, because I’ve been reading a lot about VR in recruiting, but I had not been hearing about companies that were feeling like it was really working well for them. So this is exciting. This article explains that not only is virtual reality gaining popularity in hiring, it’s also being used, at least by Walmart, in determining who to promote. So Walmart has a skills assessment that they use for internal candidates for middle management, in which they can be watched on how they deal with an angry shopper, messy aisle, or a poor performer. By seeing how the individual makes decisions, and the actions they take and potential scenarios, Walmart is gauging how well they may perform in the actual job. How well someone scores on the VR assessment now is not the only factor looked at in making a promotional decision. It is just one data point, but it’s really gaining in popularity. Walmart has 1.5 million employees and has already been using virtual reality in their employee training for things such as how to stock shelves, use online pickup machines, etc. Wall Street Journal cited other companies using VR for employee training purposes: UPS to simulate a driving a truck, Genetech as a training tool for eye surgeons.

JoDee 50:24
Wow!

Susan 50:25
I know!

JoDee 50:28
From Walmart to eye surgeons! That’s a broad range! But I love it. I love it.

Susan 50:33
Me too.

JoDee 50:33
Very creative. Artificial intelligence methods are here to stay, so be creative in different ways you can use them in your organization.

Susan 50:43
In fact, I think we’re going to do an upcoming podcast on AI. So stay tuned.

JoDee 50:48
And make it a JoyPowered® day. Thank you for listening today. Please tune in next time. If you have missed any of our podcasts, you can catch all episodes for free on Apple Podcasts, Google Play, Spotify, or wherever you listen to podcasts by searching on the word “JoyPowered.” If you like our podcast, be sure to subscribe so you don’t miss any upcoming episodes. And we’d love for you to rate and review us on Apple Podcasts. It helps people find our show. If you have questions on any HR topic, you can leave us a voicemail at 317-688-1613 or email us at joypowered@gmail.com We are also on Facebook, LinkedIn, Instagram and Twitter @joypowered. We welcome listener questions and comments.

Emily Miller
Emily Miller
Emily works behind the scenes at JoyPowered, helping to edit and publish the books, producing the podcast, and running the website and social media.

1 Comment

  1. I am learning so much. I am old school and learning from you better ways. Thanks for what you do.

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