We don't know what's next for business - but what we do know is how to help you be ready. This blog is all about anticipating the future and positioning you for success.

Tuesday, March 27, 2012

Are You Ready to Conduct a Workplace Investigation?

How would your workplace culture, attention to employee safety, or commitment to a workplace free from harassment look if it was being examined by others outside of your organization? Would it live up to the corporate branding and messaging shared with internal and external stakeholders? Would outsiders view your corporate practices and decisions as fair and equitable?

Tillman Coffey of Fisher & Phillips LLP posed an interesting question at the recent SHRM-Atlanta Conference, “How Would This Look in Court?” Tillman’s presentation focused specifically on witness depositions, something corporate leaders, especially human resource professionals, participate in. His presentation was engaging, humorous, and educational. In the entertaining video Fisher & Phillips created to illustrate how challenging depositions can be, there was one question asked of the “HR Manager” that stood out for me. The question was, “What type of training have you personally had on how to conduct a workplace sexual harassment investigation?” Conducting a workplace investigation is serious business and shouldn’t be taken lightly. Organizations should ensure personnel charged with leading investigations receive the proper training in order to be confident and credible in the undertaking.

As an overview of the phases and nuances to be considered, here are some suggested best practices to include in an investigation strategy:

Treat the Allegations Seriously

As a general rule, the employer should take immediate steps any time an employee makes an informal or formal complaint, or when a manager witnesses or has reason to suspect employee misconduct that violates workplace policies. These steps could include:
  • Develop an investigation strategy, including designing the appropriate questions
  • Protect those involved from workplace disruption
  • Attempt to resolve the alleged conflict as quickly as possible
Situations such as on-the-job accidents, workplace harassment, ethics, and whistleblowing will be subject to compliance with federal, state or local investigation requirements. In these circumstances engaging with legal counsel may be necessary.

As demonstrated by Tillman’s video "spoof," there are also a number of things an employer should not do when an employee complains:
  • Joke about the situation
  • Take sides or give personal opinions
  • Fire the complainer
  • Discuss the complaint with others who are not involved

Choose the Right Investigator

The Society for Human Resource Management (SHRM) defines the hallmarks of the "right" investigator as someone with the right level of experience, neutrality and objectivity. The HR manager is often tapped to conduct an investigation because of the nature of the position, the ability to remain neutral and strong competencies in the areas of interpersonal skills. However, this isn’t a "given." In some situations there could be a disadvantage to HR taking on this role if there has been no relevant training, or there is a possibility the employee will view HR as being too closely aligned with management.

Depending on the circumstances and the individuals involved, there are other options for assigning an investigation leader: internal security personnel, outside HR consultant, and in-house or outside legal counsel.

Legal Issues

Even when the decision is made to not have legal counsel take the lead on the investigation, it is probably worth the investment to work with counsel to outline the legal issues associated in the investigation. This conversation may involve exploring topics such as:
  • Employee perceived or legal rights for privacy
  • Guidance issued by the Equal Employment Opportunity Commission (EEOC) to ensure proper steps are taken in cases involving alleged harassment
  • Dispute resolution terms included in Collective Bargaining Agreements
  • Management of relevant documents to the investigation
  • Process for coordination with internal and external media outlets

Investigate Thoroughly

Begin the investigation process by meeting with the employee who brought the complaint forward and then follow up by meeting with the alleged wrongdoer and all witnesses identified by either party.
  • Allow each individual the opportunity to tell their story without interruption
  • Take detailed notes; document facts, not opinions or conclusions
  • Obtain relevant documentation
  • Maintain confidentiality – only disclose information on a "need to know" basis
  • Advise parties involved to keep information about the investigation confidential

Don’t Get Bogged Down

The investigator should stay in touch with both parties throughout the investigation to let them know things are still proceeding. Often the investigator is faced with a "he said/she said" dilemma which can sends the process in circles. The law firm of Ford & Harrison suggests assessing the credibility of witnesses based on these factors to aid in making a judgment as to whether the events happened as described:
Demeanor, Consistency, Chronology, Corroboration, Plausibility, History and Motivation

Complete the Investigation

After gathering the facts, the investigator will review the information and make a credible determination based on a "preponderance of the evidence." Depending on the circumstances the employer may request a written report or a verbal debrief. Be prepared to discuss investigation methods, conclusions and recommendations, as appropriate.

If the investigator concludes improper conduct did occur, disciplinary action must be determined. This usually is the responsibility of decision-makers on the leadership team, including HR. Once the action is determined, the employee who filed the complaint should be advised of the corrective action that will be taken.

Naturally, the employee accused of wrong-doing will be advised of the results of the investigation and the plan for corrective action to be taken. The investigator keeps the conversation brief, summarizing the findings along with next steps. It’s also important to remind the employee that the findings were based on what is and is not acceptable workplace behavior.

If the investigator concludes there were no findings of misconduct, the discussion with the complainant will focus on the employer’s commitment to continue to provide a respectful, harassment- and retaliation-free workplace environment. The meeting with the accused employee will focus on the fact that there were no findings of wrong doing and that retaliation will not be tolerated, and may be cause for further investigation.


In most situations, documentation of interviews and other oral communications conducted during the investigation will be summarized in writing, and signed by the respective parties to confirm the facts. Legal counsel will advise HR about what level of documentation is appropriate for the investigation. Maintenance of any investigation documentation should be separate from the personnel files of the individuals involved.

Obviously, I’m an HR/OD Consultant, not an attorney, so none of this information is presented as legal advice. The purpose is to draw attention to key protocols to be considered when planning to conduct a workplace investigation. The point Mr. Coffey made in his presentation was to be aware and sensitive to the fact that seemingly routine HR issues often lead to litigation and most often they look different in court than they did in the office. If "people issues" surface in your organization, I hope these highlights will be helpful in determining your strategy.

As always, I welcome your comments to my posting; please click below. If you found this article interesting and helpful, I’m very happy for you to pass it along to others. Have a great week.

This article was written by Deborah A. King, SPHR, CEO and Sr. Organization Effectiveness Consultant with Evolution Management, Inc. Debbie and her team are ready to assist with the design and implementation of HR and OD initiatives. Contact us for more information; www.evolutionmgt.com; 770.587.9032.

Wednesday, March 14, 2012

Appreciating The Power of What’s Best

When asking for advice about how to proceed with a specific situation, isn’t it frustrating when the response is, "Well, it depends"? Sounds like the advice is coming from an attorney, doesn’t it? It turns out Organizational Effectiveness Consultants also use that phrase too. I know I do. 

My initial engagement with my clients starts with them contrasting for me what their current workplace environment and performance levels look like and what they’d like to see in the future. Ultimately they ask, "So how do we get there?" and honestly, it really does just depend on the answers to some additional questions.
The dependencies we usually explore include workplace elements such as the organization’s:
  • culture
  • readiness for change 
  • commitment to the new vision
  • quality of current communications
  • level of trust
  • patience for working on behavioral change
After playing with the lens through further discussions, we’re able to bring the organization into a clearer focus. Only then can we start discussing the Organization Development (OD) options for moving the organization in the direction of the restated vision. One OD methodology available for involving as many stakeholders as possible in the design of the organizational change plan is known as Appreciative Inquiry (AI).

Appreciative Inquiry

I first learned about AI at an OD Conference I attended years ago, probably in 1990. David Cooperrider, a professor from Case Western University, delivered a compelling presentation on his research with a new methodology he and Suresh Srivastva had developed that he was calling Appreciative Inquiry. What’s exciting about this process is that it takes a totally different approach to change than we normally experience. Rather than approach change from a perspective of developing methods for change designed from understanding what’s not working, AI approaches change by understanding and being attentive to the best and the highest qualities of the organization.

AI is often defined as, "A process of collaborative inquiry, based on interviews and affirmative questioning, that collects and celebrates good news stories of a community; these stories serve to enhance cultural identity, spirit and vision."

OD consultants find the use of AI extremely helpful in situations where there is:
  • support for full stakeholder participation
  • understanding and commitment to change as an on-going process, not a one-time event
  • strong leadership dedication and belief in the affirmative process as a viable change driver
  • available systems and resources that encourage sharing "good news stories" and support creative action
AI is distinctly different from problem-solving as it focuses on a desired future or outcome built on the strengths and passions of the past and present. The AI methodology is guided by the following principles:
  1. Every system works to some degree; seek out the positive and appreciate the "best of what is."
  2. Knowledge generated by inquiry should be applicable; look at what is possible and relevant.
  3. Systems are capable of becoming more than they are, and they can learn how to guide their own evolution – so consider provocative challenges and bold dreams of "what might be."
  4. The process and outcomes of the inquiry are interrelated and inseparable, so make the process a collaborative one.
So What's Next?

The work of David Cooperrider and others dedicated to the power of AI continues to demonstrate how focusing on the positive and appreciating the best is a healthy, less stressful manner in which to approach change, motivate and engage employees and improve performance results.

What would it mean for your organization, business, customers and employees if you could:
  • change the orientation from problem-focused to possibility-focused?
  • create a culture that welcomes and embraces stories, shared values, and a sense of identity?
  • establish a culture that encourages continuous learning and inquiry?
  • renew organizational energy, hope, motivation and commitment?
  • improve working relations and minimize conflicts?
  • increase in self-motivation?
What would these types of outcomes do to employee engagement, turnover, productivity, sales, profits?

AI is not the methodology for every situation; remember, "It depends." However, in those situations where it is applicable, the potential for engaging stakeholders in dreaming about what the organization could be and then taking the steps to achieve that dream is extremely powerful.

If you’re interested in learning more about how AI can help your organization I’d enjoy the opportunity to discuss it with you. In addition, there are also many books available on the subject, such as Appreciative Inquiry: A Positive Revolution in Change by David Cooperrider and Diana Whitney.

The important point that you need to be aware of is that there are many OD techniques and methodologies available for planning and designing change initiatives, AI being just one of them. Take the time to explore what’s the best for your specific situation, culture, workers and the type of outcomes you are in search of.

This article was written by Deborah A. King, SPHR, CEO and Sr. Organizational Effectiveness Consultant with Evolution Management, Inc. Debbie and her team are energized about changing times and can help your organization navigate the human and operational journeys to the future. Contact us for more information: www.evolutionmgt.com or 770.587.9032.