Workplace Investigations Archives

28

March, 2023

Workplace Investigations: Anticipate Cognitive Overload

Sometimes you just need to let things gel in your mind for a while. I came to this conclusion in my investigations practice years ago, but only recently recognized it as symptomatic of a far more universal phenomenon, what mental health professionals call “cognitive overload.” Cognitive overload refers to a situation in which we are given too much information at once, or too many simultaneous tasks, resulting in not being able to perform or process the information as we would under normal circumstances.

By way of example, a friend who is an accomplished scholar attended a cross-disciplinary conference with a multitude of presentations and small group discussions. When I asked her about it as she was heading back home, she described her head as “spinning.” She needed time to reflect before she could respond. Another friend, a leader in the community, went on a whirlwind tour as a representative with other community leaders to another country, where the agenda was packed with speakers and programs over just a few days. He too needed time to process the experience before speaking eloquently of it to the community a week later.

Any time we are presented with large amounts of information we need to give ourselves the time to mentally reflect and contextualize it. That is particularly true if the information provides a different perspective or if it is laden with shifts in emotional state. Those two elements – of different perspectives and emotional shifts – often arise when conducting workplace investigations. Our goal as investigators is to gather information, in whatever manner and quantity it is presented, and it is not uncommon to experience cognitive overload.

Information Gathering Can Overwhelm

During an investigation interview, information may be presented in all different ways. Sometimes information is delivered sequentially, sometimes the recounting of events jumps between time periods, sometimes events are recalled thematically across multiple time periods, and sometimes they seem to hop around pretty randomly. In my experience, it is rare that I am presented with an account that is comprised entirely of organized, neatly-stated segments. Rather, during the interview I may need to continuously clarify points and confirm my understanding. After the interview I then need to assume responsibility for organizing the information gathered in a logical, coherent format.

Emotions are at play as well in an interview. An interviewee may be recounting a traumatic experience, responding to allegations where the interviewee feels misconstrued, or managing personal challenges that impact how the individual comes across in an interview. An investigator needs to maintain calm, but still gather relevant information. Sometimes that requires asking uncomfortable questions. Sometimes it requires providing the interviewee with time and space to respond. Staying focused can be mentally and emotionally draining for the investigator.

Allow Time to Process

While not every investigation produces cognitive overload, an investigator needs to plan for that possibility from the outset. As a rule of thumb I almost never schedule interviews of anyone else on the same day as the complainant. I need to allow myself time to absorb what has been recounted, identify all the issues being raised, and plan the next steps in my investigation, which may be quite different from what was anticipated at the outset.

Other interviews may similarly warrant strategically placed breaks. Interviewing a respondent often is also best planned for a day separate from other interviews. While it is more feasible (and at times necessary) to stack several interviews of others with relevant information in a single day, allow space and the possibility of needing to shift that schedule or follow up with an interviewee on another day. Information provided in one interview may introduce new elements to the investigation and require you to prepare questions for subsequent interviews that reflect those additional points. Or a particular interview may prove to be so draining that you are not able immediately to pivot to another one and maintain the requisite focus and composure. Spacing interviews helps avoid those challenges.

Another consideration is when to provide updates to one or more parties with an interest in the progress of the investigation. I prefer not to provide daily debriefings to a client contact as an investigation unfolds. My daily debriefing is inevitably raw, unfiltered, and at times a bit disjointed. It reflects how I received information from the interviewee but usually not how that information fits with other information I have gathered. I can provide a more concise summary of my progress, status, initial impressions and next steps if I am allowed a day to pull those details together, separate from the days spent gathering information.

Cognitive overload is almost an inevitable by-product of conducting workplace investigations. While it may not be possible to prevent its occurrence, allowing time and opportunity to mentally process information that has been gathered can dissipate the stilting or even paralyzing effect of cognitive overload.

By Tracey I. Levy

17

January, 2023

Workplace Investigations: What Is “Bullying”?

There is a slippery slope between what may be considered sub-optimal or bad management practices, “bullying,” and “harassment.” When behaviors prompt an employee complaint, workplace investigators need to evaluate where a supervisor’s conduct falls on the spectrum. That analysis largely turns on an assessment of the target and nature of the behaviors, centered on the organization’s workplace policies.

Distinguishing Bullying from Harassment

As a workplace trainer, I regularly advise that the only distinction between bullying and harassment is that harassment is based on a protected characteristic, while bullying is not. Actions like physical contact, threatening or insulting comments or gestures, and exclusion or isolation may prompt complaints of bullying, and they are equally likely to result in complaints of harassment. The behaviors are the same, but the target differs.

An investigator presented with those types of reported behaviors first needs to determine whether they actually occurred. If it seems more likely than not that they did occur, then the issue becomes one of determining whether an individual has been singled out for that treatment based on a protected characteristic, or whether the respondent engaged in those behaviors based on personal dislike of the complainant or indiscriminately toward a range of individuals with differing characteristics. In other words, is this individual a so-called “equal opportunity jerk?” That determination is not as simple as it may seem.

Considering the Target

Non-sexual behaviors, such as yelling at an employee, throwing papers at her and reassigning her to a different work group may be considered sexual harassment if they are targeting an employee because she is a woman. The investigator needs to consider why the behaviors occurred, whether others have experienced similar behaviors from the respondent, and whether those others possess the same or different characteristics from the complainant.

Even if an investigator finds that a supervisor yells and makes demeaning comments to individuals across the gender spectrum, however, that may not be determinative on the question of whether the conduct is harassment or bullying. Recently, for example, I met with a complainant who conceded that a manager was harsh and very critical of both the men and women on the team but asserted that the level of hostility was more pronounced toward women, and that only the women were belittled in a public setting. As an investigator, therefore, it was not only the perpetuation of hostile behaviors targeting individuals across the gender spectrum, but also the severity of those behaviors as directed at different groups, that I needed to consider.

Anti-Bullying Policy Language Can Obviate the Distinction

Organizations can avoid this level of hair-splitting by adopting broader policies related to appropriate workplace conduct. Policies that require employees to treat each other with respect and dignity or to maintain a respectful work environment, as well as those that prohibit both harassment and bullying, capture these types of offensive behaviors regardless of who is being targeted or for what reason. Under such policies, the investigator can just focus on the behaviors themselves and, if they are found to occur, the organization has grounds to take responsive disciplinary and remedial action. Whether the behaviors also give rise to a legal claim of harassment then becomes a question for litigators to resolve, and only if the matter proceeds to litigation.

Narrowly-defined policies can place organizations in a defensive posture. Organizations that identify and resolve issues in a manner that sufficiently satisfies the complainant may be able to avoid subsequent legal action. Organizations that decline to act unless offensive behaviors are found to be based on a protected characteristic are more likely to have a dissatisfied complainant who will pursue legal remedies to address the behaviors.

Bullying or Bad Management?

Investigators may also need to analyze behaviors at the other end of the spectrum, to determine whether a supervisor has engaged in poor management, or whether the supervisor’s approach crosses the line into bullying behavior. In this context, the starting point needs to be the organization’s policies, and how they define bullying behavior. Some organizations have detailed policies that provide a definition of bullying with specific examples, and those provisions should guide an investigator’s determination as to whether behaviors violate the policy.

Many organizations have less explicit policies against bullying, or none at all. The challenge in those situations is that not every harsh or critical communication by a manager qualifies as “bullying.” The nature of the behavior, whether it is targeted, and the reason for the behavior are often critical to determining whether a supervisor has crossed the line between appropriate feedback or discipline for an employee’s violation of workplace conduct standards, and inappropriate behavior.

Receiving critical feedback usually does not make an employee feel good and may cause discomfort or upset. Some managers also deliver that type of message more delicately than others. In general, we consider critical feedback to be appropriate manager behavior and not bullying because it is motivated by legitimate business considerations.

At times, though, even if critical feedback is warranted, the manner in which it is delivered may be inappropriate. The distinction is reflected in existing legal definitions of “abusive conduct,” which require a certain degree of malevolence or hostility before workplace behaviors will be considered to be bullying. Tennessee, currently the only state that legally prohibits abusive conduct by private employers, defines it as “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment.” California, which requires harassment prevention training to expressly address bullying prevention, defines abusive conduct as that engaged in “with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” Both states provide examples that include:

repeated verbal abuse such as derogatory remarks, insults and epithets;
threatening, intimidating, or humiliating verbal or physical conduct; or
gratuitously undermining or sabotaging a person’s work performance.

While employers can always define bullying under their own policies more broadly than the state laws, when the policies lack a clear definition, these laws provide a helpful framework for investigators delineating between bullying and bad management.

Policies as Guideposts

As with the distinction between harassment and bullying, organizations that adopt broad policies related to workplace conduct can make clear to employees and supervisors – in advance – how the organization defines the boundaries of permissible workplace behavior. Policies that address bullying with a definition and examples of the types of behaviors considered to be inappropriate provide helpful guideposts as to the organization’s expectations and the norms for appropriate conduct. Those guideposts can also inform workplace investigators’ determinations of when behaviors have crossed the line between bad management and bullying. Without guideposts, it’s a slippery slope.

By Tracey I. Levy

19

September, 2022

Workplace Investigations: Why Get a Written Report

One of the thorny process questions that eventually arises in any workplace investigation is whether and how to memorialize the findings and conclusions from the investigation. Is it sufficient just to save the notes from the investigation interviews in a file? How about a letter notifying the key parties that the investigation has been closed and the concerns raised were or were not substantiated? Perhaps an executive summary would be helpful to memorialize the concerns raised, the process followed, and the final conclusions? Or should you also capture the factual information considered and assessed in reaching those conclusions?

Retaining Notes
Yes, the notes should be saved from all investigation interviews. So should any other documents, photos, data, recordings, video or other electronic communications that may have been considered. All those items are important to reflect what issues were raised, what information was gathered, and what support exists for the concerns.

Notifying the Parties
Yes, you should notify the key parties whether the concerns raised were or were not substantiated. It is even more helpful if you inform all the parties – not just the complainant(s) and respondent(s) – that the investigation has been closed. Those communications may be verbal or written, depending on your organization’s practice and best determined with the guidance of legal counsel.

What is most important is that the communications actually occur. It provides closure to the parties and those involved in the investigation. That way they know that the issues were considered and appropriate actions have been taken. You thereby enhance confidence in your process — that concerns raised do not fall into a “black hole.” You also stem the tide of gossip.

When there is no follow-up, people wonder whatever happened with the matter that x person raised. Worse still, people conclude that because they heard nothing further it must mean that the organization did nothing with the information that those individuals had provided. All your hard work to investigate becomes for naught.

Drafting an Executive Summary
It often is helpful to prepare at least an executive summary of the investigation that was conducted. The executive summary should:
• Outline the concerns raised and when they were brought to the organization’s attention;
• Identify who was interviewed and their job titles;
• Identify what documents or other information was reviewed; and
• State the conclusions with regard to each concern raised and the key findings in support of those conclusions.

The executive summary serves essentially as a road map. Decisionmakers can reference it as a basis for considering appropriate responsive action. Should a concern arise in the future involving one or more of the same parties or work group, a subsequent investigator can similarly reference the executive summary to understand the scope of the prior investigation.

While helpful, an executive summary by definition lacks detail. It does not summarize the information provided by each interviewee, it includes limited information about where conflicting accounts were provided and how credibility was assessed, and it most certainly cannot “stand on its own,” should the underlying complaint proceed to an adversarial posture. For that level of detail, you need a full written report.

Advantages of a Written Report
A written report should start with an executive summary and offers all the benefits of that as a road map to the issues, process followed, and conclusions. The written report should go further, though, and tell the full narrative of what concerns have been raised, what the interviewees said in regard to those concerns, where documentary or other evidence was relevant to the concerns, what conclusions were reached, and how those conclusions were derived. In contrast to the executive summary, the written report should provide sufficient detail such that it is not necessary for the investigator to provide any additional information.

A written report thus reflects the investigator’s findings and analysis, and thereby supports the conclusions reached. It memorializes a considered process and demonstrates due diligence by the organization. The report also allows decisionmakers to carefully consider appropriate action, consistent with the investigator’s findings.

Not every workplace investigation results in the drafting of a full written report. Cost and time often are significant factors, as a written report is not something that can be knocked out in a few hours. Where an investigation has found sufficiently serious violations of policy that the organization has decided to terminate the respondent’s employment, some organizations conclude that no written report is necessary. The termination itself is viewed to demonstrate the seriousness with which the issues were considered and addressed. Other organizations in that same situation will conclude that a written report is very much needed to memorialize why the respondent’s employment was terminated. That is particularly so if the terminated individual would have been eligible for some severance package, stock award or bonus, or is to be stripped of a prior award, based on whether employment was terminated “for cause.”

A written report offers other benefits. Sometimes an organization may disclose portions or all of the report to a complainant’s attorney and can use the report to further settlement discussions. Other times, the persuasion is internal, and the report may be impactful in garnering support from senior leaders for changes within the organization.

Ultimately, whether to request or prepare a written report is an individualized determination. Workplace investigations, done properly, take time and care. Organizations that commit that level of effort would do well to ensure they have memorialized their efforts in some fashion. That written record can inform future actions relevant to the individuals and group involved and the organization as a whole, and it can protect the organization in the event a matter proceeds to litigation.

By Tracey I. Levy

4

August, 2022

Workplace Investigations: Video vs. In-Person Interviews

Prior to the pandemic, in-person interviews were generally considered the preferred method of conducting workplace investigations. They allowed the investigator to build rapport with the interviewee, the investigator could observe behaviors by the interviewee that might be relevant to credibility, and the investigator could know who was present for the interview and ensure a private meeting. But in March 2020, that all had to change. My Cornell colleagues and I wrote an article at that time, assessing the opportunities that videoconferencing offered as a virtual alternative to in-person interviews and identifying the caveats and precautions for which the investigator should be prepared.

Nearly two and a half years later, while employees have returned to their workplaces to varying degrees, I continue to conduct virtually all my workplace investigations by videoconference. Yes, it saves me a commute, but I actually like getting out into the world with people and I care deeply about ensuring the integrity of my investigations, so saving the commute would not suffice if it compromised my quality standards. Rather, over the period that remote interviews were the only viable option, I have come to appreciate some enduring advantages that they offer over in-person interviews.

Ensuring Privacy

Pre-COVID, one of the greatest challenges I faced when conducting in-person interviews was in securing a private location for those meetings. Most workplaces have shifted to glass-walled offices and conference rooms, many with little or no shading to afford visual privacy. I would strategically situate myself so that I faced outward, and only the interviewee’s back would be visible to passers by, but that afforded only a limited degree of anonymity. I would request to use a conference room or office that was off the beaten path, or at least in a different location than the coworkers of the people I would be interviewing – with mixed success.

For one investigation, I visited nearly every coffee house in a five-town radius of the client’s office. No interviewee felt comfortable that the office could afford privacy and each had a different idea, in relation to their own hometown, as to where our presence would go unnoticed. Investigation interviews can be conducted successfully in a coffee house or similar public space, but it requires the right mix of variables – other people conversing, so that my interview will not be a prominent sound in the space; a table spaced far enough from others such that it will be difficult for the people closest to us to eavesdrop; and frequent turnover or activity so that if we lingered longer it would not be noticed.

Videoconferencing spares me most of those logistical challenges. With the caveat that my interviews are generally conducted in areas where wifi access is abundant, I have extremely rarely had to shift from video to audio only interviews. Even employees who do not have a laptop or tablet are able to meet through their smartphone. The challenge with videoconferencing is that you never know who may be offscreen, just as you never know if your conversation is being recorded, so confirming the person is in a private place to speak sets a baseline expectation.

Keeping Everyone Safe

Videoconferencing offers the ultimate assurance of social distancing. While we may have moved past the worst of the pandemic, the need to quarantine or isolate due to exposure to COVID-19 can still arise at any time, and side-line plans for in-person meetings.

Videoconferencing also reassures all parties against exposure to other infectious diseases and milder ailments. Years ago, when I was conducting investigations internally as an Employee Relations specialist, I once came to work while fighting a bad head cold so I could proceed with the scheduled interview of the respondent, a relatively senior manager who had a very busy schedule. After the interview, I received feedback from the HR Business Partner that the respondent complained I had been sneezing throughout our meeting. Rather than being appreciated for my perseverance and commitment, I had made the manager uncomfortable by my physical presence. It was an interview that I should have postponed, or taken from the safer distance of a video screen.

More recently, I met in person to interview the respondent for a particularly sensitive matter. Having just recovered from COVID-19 and completed my 10 days of isolation, I was feeling unusually secure about meeting in-person. The day after the interview, I developed symptoms and tested positive for a rebound of COVID, and was put in the uncomfortable position of having to reach out to the respondent and others who had been present for that interview to advise them of their possible exposure. Meeting by videoconference ensures that the investigator, the interviewee, and any third-party representatives are all safe from infection.

Moving Things Along

One of the other benefits of videoconferencing is that it enables speedier coordination of meetings. Scheduling time to meet with individuals who travel frequently or work in multiple locations is much simpler when they can join via videoconference from virtually anywhere.

Making Exceptions

Notwithstanding these benefits, there still are times when videoconferencing may not be an ideal option. In particular, videoconferencing makes it slightly more challenging to build rapport and make the interviewee comfortable enough to provide the investigator with responsive information. For that reason, when conducting interviews of individuals who report having experienced traumatic situations, such as sexual assault, in which building and maintaining that rapport and comfort is essential, the benefits of meeting in-person may outweigh the challenges.

There is no one right way to conduct workplace investigation interviews, provided there is a considered process behind decisions that are made. Videoconferencing offers advantages, and my old bias toward in-person interviews has given way to a new reality.

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In this Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

21

July, 2022

Workplace Investigations: When Should You Consider Retaining an Outside Investigator

Increasingly, organizations are conducting workplace investigations in response to employee concerns – both those raised formally to human resources or through a written complaint or attorney demand letter, and those raised informally in a conversation with a supervisor that is brought to human resources’ or an equivalent function’s attention. Matters that, in the past, might have been handled by a conversation with the subject of the complaint and perhaps one or both parties’ managers are now referred for an investigation. That typically comprises documented interviews with both parties and others believed to have relevant information, as well as a review of other materials, including documents, electronic communications, recordings, and physical items.

Human resources is most typically tasked with conducting these types of investigations. In organizations with a larger HR function, there may be a dedicated employee relations function or equal employment opportunity (EEO) office to handle the investigation of matters potentially involving serious policy violations, such as the EEO or workplace violence policies. Complaints about workplace conditions (not involving health or safety concerns) or more generalized issues of unfairness or favoritism (not based on any protected characteristic) are often looked into by the HR generalist supporting that business function.

Sometimes, though, an organization is best served by retaining someone outside the organization to investigate a workplace concern. In my 15 years conducting workplace investigations, I have found that determining when to retain an outside investigator largely depends on four factors: conflicts of interest, sensitivity of the issue, skills and experience, and workload management.

Conflicts of Interest

CEOs/business owners, board chairs and other senior leaders can be the subject of an employee complaint reflecting a potential serious policy violation. Or a workplace concern may involve the head of the organization’s human resources, compliance or legal function. In each of those circumstances, the individuals within the organization who would typically be conducting a workplace investigation are being asked to look into a complaint against the people who ultimately determine the investigator’s pay and future with the organization. The internal investigator’s independence and ability to conduct an effective investigation may be compromised in that situation.

Even if the internal investigator feels equipped to disregard the underlying power dynamics and objectively gather and evaluate the factual information, there is an overriding appearance of undue influence that may undermine the confidence of the complainant or other parties in the objectivity of the outcome. The complainant may raise concerns about the process to coworkers, and employees may be disinclined to raise concerns internally in the future.

An outside investigator can help an organization avoid these conflict-of-interest concerns. The outside investigator may be retained by and asked to report directly to the board, outside legal counsel, or a senior leader within the organization who is above or outside the reporting lines of the parties involved in the matter (such as reporting to the CEO or CFO on a matter involving department heads within human resources or legal).

Sensitivity of the Issue

Sometimes the nature of the concern raised warrants retaining an outside investigator. For example, matters involving a sexual assault or a domestic violence issue that has carried into the workplace may present particular sensitivities that the internal investigations team is not experienced to handle. A trauma-informed approach is recommended for investigating these types of matters, which involves a focus on open-ended questions, delicate probing, and an appreciation that the complainant’s account may be fragmented or disjointed but still credible. These attributes of a trauma-informed approach are arguably best practices for any workplace investigation, but if the internal team lacks appropriate training in them, then an outside investigator may be a better option to conduct an appropriate investigation.

Skills and Experience

Smaller organizations often do not have an internal human resources function. HR support may be provided through a professional employer organization (PEO) or may be assigned to the business owner, the head of operations or the finance head. Or perhaps an organization does have one or more internal people responsible for human resources, but their role and experience has primarily focused on recruiting, benefits administration or HR advisory work, with little or no experience conducting workplace investigations. In these situations, leveraging the skills and experience of an outside investigator is helpful. Some organizations will retain an outside investigator for support on an ongoing, as-needed basis, while others may retain an outside investigator more ad hoc, if a concern has been raised where an investigation seems appropriate.

Workload Management

Finally, sometimes an internal HR or investigations team just has too much on its plate or is short one or more staff and needs additional resources on an interim basis. In these situations, the outside investigator still offers the benefit of more independent accountability and perspective, but primarily the investigator’s value is in being able to “hit the ground running” and offer support.

Final Considerations

An experienced outside investigator can be a helpful resource to organizations in a range of situations. It is helpful to articulate to the investigator at the outset the business issue that prompted reaching out to someone external to the organization. If, for example, an outside investigator is being retained due to a conflict of interest, then clarifying to whom the investigator will be reporting is important to ensure there is no perpetuation of the conflict. And if the investigator is simply an extra set of hands to manage workload, then it is important to clarify when and how the investigator will be engaged for specific matters.

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By Tracey I. Levy