What if an employee tells her manager about a problem, but asks him to “keep it confidential?” If I hear an employee gossiping in the lunch room about being propositioned by her boss, or if my lineman comes to me “confidentially” and tells me about a safety violation, is that a “complaint”?
These may seem like strange questions, but you would be surprised at how frequently employers misunderstand what a “complaint” in the workplace really is.
The answer is simple. If an employer has information that suggests there may be a legal or policy violation, it should be treated as a “complaint,” regardless of the source. Employers have an obligation to act. There is no requirement that an employee use magic words or write out a formal complaint. There is no requirement that the employee requests action by the employer.
Gossip can be the basis of a workplace investigation as well. So can a concern that an employee brings to a supervisor or HR “confidentially.” Whether or not an employee wants to escalate a complaint that involves a legal or policy violation, employers have no choice but to investigate.
Do I need to do an investigation, at all?
It depends. The first question to ask is, “What do my policies and the law say?” Your policies may impose an obligation on you to investigate complaints on certain subjects. The law imposes an obligation to investigate certain allegations as well, and you may have to act based on these requirements.
The second question to ask is, “Do I want to know more?” If the answer is yes, then you should do some kind of investigation so that you understand as much as possible about the problem so that hopefully you can find a solution.
If I feel I need to investigate, does this mean I have to do a “formal investigation”?
The level of investigation you need to do is dictated by the facts. Some situations can be resolved by you picking up the telephone and speaking to two people to find out what happened. Others require more interviews with people who may have witnessed a situation, or who may have feedback on credibility. Some require the expertise of an outside investigator. There are a wide range of responses that are adequate “investigations,” based on the facts involved.
What Constitutes A Legally Adequate Investigation?
In order to meet the requirements for a legally adequate investigation, an investigation must be:
The EEOC answers this question categorically by saying that if a fact-finding inquiry is necessary to investigate harassment, it must be “launched immediately.” This is because time is the enemy of evidence. The sooner you begin gathering information, the more reliable the information will be, and the better your investigation’s chances of getting to the bottom of the problem. Timing can be impacted by the complexity of the situation and how much planning is necessary before beginning interviews. It can also be influenced by witness availability. But the bottom line is, if you think you need an investigation, get going.
What is “neutral”? Essentially, the investigation must be conducted by an investigator who does not have a stake in the outcome. In other words, this person cannot be a personal friend of anyone involved, should not be in the supervisory chain, and should be able to approach the situation with an unbiased ability to assess the facts. Additionally, the investigator must go about gathering information in an independent manner, not controlled or influenced by the company, its decision-makers or its counsel.
At a bare minimum, an investigation should include interviews of the complainant and subject (in person, where at all possible), all eye witnesses or witnesses who have direct information, and the review of all directly relevant documentary and other evidence. In some cases, it will be necessary for the investigator to interview similarly situated individuals. It is almost always a good idea to interview witnesses suggested by the complainant and the subject, unless there is a good reason not to (that your investigator should document). The bottom line is that the investigator must be able to determine whether it is more likely than not that behavior occurred. That is the standard. When your investigator has done at least the bare minimum, and can answer the questions under this standard, it’s enough.
Lastly, don’t forget that your investigation must be conducted by someone with the experience and the training required to do it right. Anyone who says that workplace investigations are easy hasn’t done one right. They are complex, nuanced and require a detailed knowledge of the applicable laws, the ability to analyze data and assess what information is needed, and expertise in interviewing witnesses and gathering information. Don’t assign the case to the poor person who happens to answer the phone. Make sure your investigator knows what they are doing.
Do I need to hire an outside investigator?
The answer is, maybe you do and maybe you don’t.
If your case involves a run-of-the-mill policy violation, or harassment allegations involving low-level employees, or an employee dispute between peers, your HR professionals can probably do the investigation without issue. These are exactly the kinds of things you want your HR people investigating. If your HR folks don’t have a lot of investigations experience, we are happy to help guide them through it. Nonetheless, these are the kinds of cases you should be trying to do yourself.
If your claim involves allegations against senior management or human resources, or you are facing issues involving a high risk of litigation or public exposure, it’s probably a great idea to bring in an outside investigator. Your HR folks cannot be expected to investigate themselves. It is nearly impossible to get a neutral investigation of a high-level executive from an internal investigator, there are simply too many pressure points that prevent that from happening.
In any litigation setting, your investigator becomes your star witness to describe what he or she did to thoroughly examine the claim and seek out all of the relevant information. If you do not have someone in your HR group who can serve as an articulate and measured witness, any work that they do to investigate the claim will go out the window. Without a credible witness to convey the conclusions, the investigation will not be worth the paper it is printed on.
If you are concerned that your investigation will be subject to CORA or public scrutiny in some way, an outside expert investigator is a good investment. Experts know not only how to gather the information, they know how to analyze facts and write up conclusions in a professional manner. You will need this if your investigation becomes a matter of public knowledge.
The bottom line is that many investigations are well within the purview of a good HR generalist’s skill set. If your case feels like it is more complex and contains more risk than your HR person can handle, that is where we can be a huge benefit for you.
How long will it take and how much will it cost?
If you hire us, we will start on your case immediately, and we will prioritize the work so that it moves forward as quickly as possible. The duration of an investigation depends upon how complex it is. How many witnesses are involved? How much documentation needs to be reviewed? These factors drive cost as well.
Workplace investigations are a specialized arena. They involve best practices and different procedures than any other area of investigations, and they are much more complex than your brother’s divorce lawyer who “investigates on the side” may appreciate. If an investigation is done wrong, it not only fails in its objective of getting you the information quickly, but it can actually create greater liability for you down the road. If it’s done incompletely or incompetently, it’s like flushing that money down the toilet.
If your claim involves high litigation risk or allegations against high-level executives or human resources, you’ll need an expert to conduct the investigation. You will not only meet your obligation to do a prompt and thorough investigation, but you will garner early discovery of facts that you will otherwise have to pay lawyers to obtain later. The money you spend now could save you thousands in legal fees if your claim goes to litigation. Strategically and economically, it is always best to know as soon as possible what you are up against.
The costs of any investigation depend upon how many people need to be interviewed, how many documents or other materials need to be analyzed and what kind of report is required. Investigations range from a few thousand dollars to tens of thousands, depending upon the complexity of the facts involved. We are happy to discuss your situation with you to give you a sense of what to expect, and we are also happy to work with you to scope or stage your project, in order to give you the most value at the best possible price.
Our philosophy is that you have one chance to do an investigation right. If you miss that chance it can mean a lost opportunity to resolve your problem quickly, at an early stage, and for a lot less money than you will face if your problem becomes a lawsuit.
Aren't you just going to find for the Company? They are paying you, after all.
We hear this concern a lot. And we understand why people might think we have an incentive to “find for” the companies who hire us and pay us for our work.
An investigation done well provides valuable insights for the company. If a bad situation exists, it is better for the company to find out quickly so they can stop the behavior, fire people if necessary and solve the problem. If we make a situation appear rosier than it is, companies are blindsided at trial. Hardly a “good outcome” for anyone involved.
Our retention letter with our clients is very specific. It states that we will do the work independently, without coercion or pressure from our clients to find a particular outcome. It states that we will independently determine who to speak to and what documents to look at. And it says that our clients have to pay us, regardless of the outcome. We won’t take cases if a company won’t agree to these terms. It is our job is to be the neutral investigator who finds out what happened. We can’t be on anyone’s side, or we wouldn’t still be in business.
Why should I spend money on compliance training?
The short answer is that training is a lot less expensive than paying lawyers to defend you in a lawsuit.
The real answer is more complex than just saving on legal fees. You want your employees to work in an environment where they aren’t being harassed, or discriminated against. You want them to know that you won’t tolerate it, and that you will address problems that employees bring to you. You want your managers to understand what their obligations are – both legally and under your policies. And you want them to know what to do if someone brings them a complaint. For that matter, you want them to know what a “complaint” is under the law. One of the first things that any manager will be asked in a deposition is what kind of training they received on EEO issues.
The bottom line is that everyone expects there to be some level of training on compliance issues in your workplace. And by “everyone” I mean employees as well as fact finders like judges and juries.
Aren't online training modules good enough?
For some kinds of training, online modules are excellent. For employees who need Department of Transportation training, for instance, there are some wonderful online resources for this kind of training. And for some companies, online training provides an economical way to “check the box” that training has been done.
But as most of us will acknowledge, any training that can be done alone, with no feedback and no opportunity to interact and ask questions is much less likely to engage the employee. It’s easy enough to go through the motions, but you will have no idea whether someone paid attention or understood the content. It may allow you to check the box, but it’s much less likely to result in employees who actually learn and retain the material. This is one reason why California, with its mandatory bi-annual harassment training for supervisory employees, requires “interactive” training by qualified instructors.
What you really want from training is for your employees and managers to learn something they can bring into their jobs, that will make your workplace better. There is no substitute for live training, with interactive and engaging facilitators, and it doesn’t have to be expensive. For ILG’s annual engagement clients, yearly training is part of the package.
My staff is too busy to schedule this in.
It’s true that there is never really a convenient time to stop your operations and take time away from business planning and client development to do something like training. If your staff is too busy filling orders, serving your clients and moving your business forward, that is what we like to think of as a high-class problem.
But just like any other safeguard you have in place to keep your business running smoothly, it’s important to provide the foundations your employees need to function at their most effective. If your managers don’t understand harassment or retaliation protections, for instance, they may be tolerating bad behaviors that are impacting morale. If a key employee feels harassed by her coworkers, you can bet that she isn’t as productive as she would be in a more comfortable environment.
The kinds of things that training targets impact the effective operation of your business. The goal is keeping your environment peaceful and productive, preventing harassing or discriminatory behaviors, or simply addressing conflicts that threaten team cohesiveness. All of these kinds of situations can be addressed with tailored training. It will be time and money well spent.
What I'd really like is for my HR staff to be up to speed to do this from within.
We think that is an ideal solution for most businesses.
If you need help with any “train the trainer” kinds of coaching, we have done this sort of training and support for our clients for many years. With our annual retainer clients, this is a big focus. We want your staff to feel confident that they can bring this kind of training to your staff, and ultimately to be as self-sufficient as possible, with us in an advisory / coaching role.
Is my business big enough to need HR assistance?
If you have employees, or a plan to go out and hire some employees, the answer is probably yes! If you have human resources – a.k.a. employees – you need to have some plan in place for managing them.
We can help you get your fledgling start-up set up properly in terms of human resources systems, so that as you grow and add staff, you will have the right structures in place. This can be as simple as helping you set up employee files, giving you hiring and interviewing guidelines, getting you a good handbook, and helping with your first set of performance appraisals.
You may not be big enough to hire your own HR person, but hiring an outsourced HR adviser can be a very economical way to get top-flight expertise, without that expense and overheard. We can get you set up on an annual plan that includes training and monthly visits, and we can be available on an as-needed basis, just a phone call or email away.
It’s a way to get the peace of mind that you’re doing things right, setting yourself up to be a place where people are excited to join your team, and helping build the success of your business.
What is the ROI for spending money for outsourced HR help?
There are a number of things to think about in terms of your return on investment for getting outsourced HR help. Making mistakes on compliance requirements can result in audits by State and Federal agencies for things like overtime compensation, or designating employees as independent contractors. These audits cost you in terms of money spent on fines (and possibly legal help), and in terms of downtime for your executive team in dealing with an intrusive audit.
The larger payoff comes from having a workplace that attracts the best talent, and incentivizes them to want to stay. For starters, a bad hire can be the most expensive mistake you make. If you’ve paid a recruiter, it can be tens of thousands of dollars in fees, as well as going back to the drawing board and starting over. Or if an employee who you love jumps ship, this will have the same net drain on your resources. You want to build the best workforce and the best workplace to avoid both of these problems.
If you end up with an employment lawsuit that won’t go away at an early stage, it can and will cost you much more in terms of legal fees than it will ever cost to pay an outsourced HR expert. The right help can prevent small problems from blowing up into lawsuits.
And if you ever want your business to be seriously considered by venture capitalists or interested business buyers, it will be expected that you’ve done everything right in terms of hiring, documentation and compliance. A failure to have that all in place can mean losing your financing, or losing that chance to sell your business to an interested buyer.
Can't I just do this myself?
Lots of businesses have the internal expertise to take care of routine human resources issues as they arise. It is really a two-fold question of: Expertise and Focus. Do you have people in house who know enough to take care of this? Even if you do, do you want them distracted by handling HR and issues of employee relations (along with the myriad of other responsibilities they already have).
For many businesses, it’s helpful to outsource HR concerns because there isn’t enough expertise in-house, and there aren’t enough hours in the day for your team to run their business units, along with staying up on all the changes and developments in employment law. It’s helpful to have an expert to turn to, whose judgment you trust, while your team is enabled to retain their focus on moving your business forward.
Won't this be really expensive?
We can design a plan for your budget, and with a yearly retainer agreement, that cost is spread out over twelve months.