Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. He welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.
In 2010, surgeon and author Atul Gawande published a short but important book, The Checklist Manifesto (Picador). In it, he describes a methodology originally developed in the airline industry to prevent disaster. Working back from actual airplane crashes and what might have prevented them, reconstruction experts developed short, concise checklists to assist pilots or others in distress with just-in-time guidance.
Inspired by what he learned, Gawande received a grant to apply this methodology in hospitals. Checklists were designed to reduce preventable surgical mistakes and then applied in various hospitals around the world. The results were major reductions in surgical errors, medical complications and patient deaths.
The Seven-Pronged Investigations Checklist
Inspired by Gawande’s book, I reflected on my former career as an employment law attorney, in which I conducted numerous workplace investigations and litigated many botched ones. I asked myself, “Based on these experiences, what most often went wrong and what would have prevented disaster?” The following seven-step checklist represents the results of this reflection:
- Presume to investigate.
- Set the stage.
- Protect the people and the process.
- Perform “EAP interviews.”
- Don’t cut corners.
- Properly convey supportable findings.
- Remember the post-investigation checkup.
1. Presume to Investigate
Perhaps more than anything else, workplace problems that end up in the legal system are caused by the failure to take early management or HR action. The failure to take timely, proactive action contributed mightily to the explosion of employment litigation during the first part of my career.
A common culprit in the delays: “the insidious instinct to avoid.”
Avoid avoidance. At the earliest sign of trouble, ask yourself, “What’s my action plan?” Also, when the employee says, “Hi HR, I want to tell you about a problem, but I want you to keep it confidential and not do anything about it,” don’t agree to those terms!
2. Set the Stage
There’s a tendency to jump into an investigation without getting ducks in a row first. As the late workplace guru Stephen R. Covey said, “Begin with the end in mind.” This means: a) arriving at the probable truth; b) giving people a fair opportunity to respond; and c) coming up with a resolution that’s legally smart and business wise.
Make sure to get these ducks in a row:
- Identify the people with relevant knowledge and documents, including e-files that should be reviewed and preserved.
- Make sure the experience or impartiality of the investigator can’t be questioned, such as in the case where an HR director investigated a sexual-harassment claim a female employee made against a male employee. Two years earlier, the HR director had dated the male in question.
3. Protect the People and the Process
In my law career, I dealt with investigations where the issue probably would have been resolved satisfactorily but for misbehavior during the investigation. This included attempts to pressure, manipulate and even threaten others. You should always be vigilant for signs that the people and the process are free of manipulation and retaliation.
Never promise confidentiality. I told people I interviewed, “I can’t promise absolute confidentiality. However, I do consider the information sensitive and would only share it as necessary to resolve this matter being investigated.”
4. Perform ‘EAP Interviews’
Readers of my column have heard me extol the virtue of EAR listening: explore with open-ended questions; acknowledge by confirming with the other person his or her position and key points; and respond with your position only after the “E” and the “A.”
When it comes to investigative interviews, I replace the “R” with a “P.” It’s for pinpoint. This means you explore the witness’s version of the facts or circumstances; get them to acknowledge that you’ve accurately summarized what they shared with you; and pinpoint critical details. This can be exact quotes and precise factual information that could play a pivotal role when you subsequently assess the evidence and make findings. “Let me make sure I understand you. Is this exactly what happened? Were those the actual words he used?”
In addition to EAP interviews, I’m a great fan of these follow-up questions: “Anything else?” “Have we covered everything you think is relevant?” “Who else might have knowledge?” “What documents or information should I review?”
5. Don’t Cut Corners
I had a case where the HR investigator did everything right—except for one thing. Her interviews were thorough, her findings sound and her recommendations appropriate. Unfortunately, however, after she completed the investigative work and before she composed her findings, she took a break to catch up with other work that had been neglected while she conducted the investigation.
During the delay, the accused consulted a lawyer who evidently recommended a “best defense is a good offense” strategy. The employee requested leave under the Family and Medical Leave Act and an accommodation under the Americans with Disabilities Act. Essentially, this set up a retaliation claim should the finding go against him (as it did).
Complete the investigation promptly and make sure you reviewed the relevant documents and spoke with people with relevant knowledge, especially when there’s a sharp divergence in witness accounts. A common way to attack investigative findings is to claim the investigator failed to interview key people or review key documents.
6. Properly Convey Supportable Findings
I’m highly skeptical of subjective credibility assessments. You’re on much stronger ground if you examine the actual evidence for:
- Indication of bias or incentive to lie.
- Overall weight of evidence, especially considering neutral witnesses and documents.
In my experience, HR professionals sometimes default too quickly to the “unable to conclude” conclusion. Bear in mind that you’re not a prosecutor. The evidentiary standard is not absolute certainty or proof beyond a reasonable doubt. Instead, the question is this: Based on your review of the evidence, what finding is more likely true than not?
Also, beware the tendency to generalize. Your findings and conclusions never need include words such as “harassment,” “retaliation”, “bullying” or “theft.” Instead, describe the behavior and its impact, along with relevant policies or organization values.
A judge once chided me for asserting in a summary judgment motion that the plaintiff could not establish “sexual harassment” as a matter of law. “That’s not what your HR department concluded!” he thundered.
In communicating investigative findings, I highly recommend the Same Day Summary approach, which you can learn more about here, here and here.
7. Remember the Post-Investigation Checkup
I had a case where a female employee had accused a male employee of unwelcome sexual behavior. The HR director flew to the office location, conducted an investigation and found that the complaint was valid. The male employee was disciplined and made a written commitment never to engage in such behavior again and not to retaliate in any way.
The complainant was satisfied with the resolution. She said, “My goal isn’t to get him fired. It’s to get this behavior to stop.”
Investigation concluded; the HR director returned to her home office. Mission accomplished—or so she thought.
The male employee ceased further sexual behavior; however, he also kept his distance from the female employee. He reasoned that, “She probably needs some space, and I want to make sure I don’t bother her anymore.”
The woman interpreted his distance-keeping as hostility. Tensions began to grow and involved others as sides were taken. What would otherwise have been a minor disagreement about stacking office supplies morphed into a shouting match involving the office manager. The female employee quit on the spot and subsequently brought a claim for sexual harassment and retaliation.
The HR director had no idea of the trouble brewing until she received the Equal Employment Opportunity Commission charge.
Once the investigation is completed, mark your calendar for periodic checkups and check-ins. You want to make sure that the original problem has been solved and no new ones have taken its place. Thirty days is my general rule, at least initially.
In my view, the original complaint is not fully resolved until there has been reintegration. This occurs when complainant, accused and other affected employees have fully moved on and the incident is truly in the past.
I recommend you keep this checklist at the ready. Perhaps create a simple document listing the seven prongs. When trouble next arises, you’ll have it handy.
Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is immediate past president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to firstname.lastname@example.org.