Tag Archives | investigations

Investigation alert: The NLRB takes aim again at confidentiality

By on January 9, 2013 in Our Blog

Last year I blogged about the Banner Estrella case, where the NLRB held that workplace investigators may not uniformly ask witnesses to maintain confidentiality, arguing such requests could interfere with “protected concerted activity.”  (See here for the post).  It was big bad news to those of us in the world of workplace investigations, as the NLRB challenged a best practice.  We investigators typically ask witnesses for confidentiality as a matter of course in order to protect the integrity of the investigation.  The NLRB’s decision left us scratching our heads and rethinking our strategies.  Well, the NLRB has done it again.

In American Baptist Homes of the West d/b/a Piedmont Gardens, the Board examined a union request following the termination of an employee caught sleeping on the job.  The union wanted to see all witness statements collected during its investigation into the alleged misconduct.  The employer objected to the request, relying on prior Board precedent.  The NLRB overruled its prior bright line rule protecting witness statements and instead adopted a balancing test.  Under this standard, if the information requested is relevant (an easy standard to meet), the party opposing production based on confidentiality must prove “that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.”

Piedmont Gardens is a pro-union decision that impacts workplace investigations in a union setting.  If confronted with a union request for witness statements following an investigation, play it safe and consult with counsel.

 

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Post from the Past: What to do when you hear the “H” word

By on October 25, 2012 in Our Blog

I’m wrapping up a big training project on workplace harassment and discrimination.  One of the most significant things I’ve noticed is how much confusion there is about what the term harassment means, precisely.  It’s got a colloquial meaning, to be sure.  ”Someone is picking on me.”  ”Someone is annoying me.”  These are just a couple of typical responses I hear when I ask employees what the word harassment means.  I spend quite a bit of time in my training sessions covering the basic definition (to be harassment, it must be based on a protected category, for starters).  But a more practical question for HR is this: what should you do when you hear the “H” word?  Inquire further.

Here’s a post from the past (September 8, 2009, to be exact) — it’s worth a quick review:

I recently concluded an investigation where the “h” word meant that the supervisor (an executive-level employee, and thus the wise decision was made to retain an outside investigator) was not as polite as he could have been.  Sometimes he forgot such pleasantries as “please” or “thank you.”  Sometimes he joked around too much (but never on the basis of sex or any other protected category).  The investigation quickly concluded there was no harassment, in the legal sense of the word.  Case closed.

On the other end of the spectrum is the recent Seventh Circuit decision in Porter v. Erie Foods International Inc.  The harassment at issue in that case involved the display of a noose.  The on-duty supervisor immediately removed the noose and contacted her supervisor as well as an HR representative.  The employer immediately launched an investigation, held a meeting to emphasize its commitment to non-discrimination and harassment in the workplace, spoke extensively with the one black employee on the shift in question, and questioned many employees to ascertain the source of the noose.  The black employee later quit and sued for racial harassment.  Affirming summary judgment in favor of the employer, the Seventh Circuit held the employer acted promptly and effectively to put an end to the harassment.

The lesson for employers is simple.  If you hear the “h” word, or any of your supervisors hears the “h” word, do something about it.  The choices range from a comprehensive investigation to a more informal discussion with employees to ascertain the basis for the claim.  And don’t forget to train employees on the anti-harassment policy, as well as on harassment law generally.  Sometimes, knowing what harassment is not is just as important as knowing what it is.

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False allegations of harassment

By on September 23, 2011 in Our Blog

I’ve been getting a lot of questions about this one lately, as I am in the middle of a big anti-harassment training project.  I’ve heard from a couple of participants that they were the subject; others have asked if it could happen and what they can do about it.  In my experience investigating harassment complaints, it does happen, but not very often.  And just to be clear, by “false allegations” I mean someone intentionally making a story up out of whole cloth, not just a simple misunderstanding, as often happens in the world of harassment.

So what are steps employers and individuals can take to mitigate the risk?  Train on appropriate workplace behavior and make sure everyone in the workforce understands how to stay out of the looming “gray zone” of behavior.  There’s obviously behavior that is perfectly fine.  At the other end of the spectrum there is behavior that is clearly a no-no.  In the middle is most of the stuff that makes up harassment claims.  By steering clear of that ambiguous zone, individuals can dramatically reduce the likelihood of getting hit with the “h” word.  In addition, the specter of false allegations is one more reason it’s critical to conduct thorough investigations and not to just take anyone’s say-so.

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An employee’s disagreement with a performance evaluation is not harassment

By on September 1, 2011 in Our Blog

Do you hear the “H” word, harassment, thrown around loosely these days?  Many of my clients do, and it’s a problem.  I recently conducted a workplace investigation where an employee cried harassment.  The “harassment,” it turned out, was based on the fact that the employee got a terrible performance review and was then placed on a PIP (performance improvement plan).  Where’s the harassment, you ask?  The employee is 100% positive that his performance is great.  Anyone who thinks otherwise must be out to get him, de facto.  Further, said manager must be committing illegal harassment.  The employee truly believes this to be the case.  Could he be right?  Only if the bad review is not based on actual performance, but instead on a protected category, such as sex, race, national origin, religion, age, disability, etc.  Otherwise, the manager’s conduct may be many things (e.g. appropriate, unfair, intelligent, stupid), but one thing it certainly is not is harassment.

When I conduct harassment training, my goal is to educate my audience on what constitutes harassment and how to avoid it.  Just as important, though, is educating participants on what is not harassment.  If you have not rolled out harassment training in the past couple of years, it’s time to revisit it.  (More on that in an upcoming post).  Make sure when you do, you include what harassment is not on the agenda.

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Hewlett-Packard CEO steps down amid harassment claims

By on August 11, 2010 in Our Blog

Last week, computer giant Hewlett-Packard announced that its CEO Mark Hurd, who has been widely credited with turning the once-troubled company around, was resigning following an internal investigation into claims of sexual harassment.  A former HP contractor made allegations of harassment, apparently arising out of a romantic relationship she had with Mr. Hurd.  The Board of Directors launched an investigation, which did not corroborate the harassment allegations, but did reveal other instances of misconduct, including allegedly falsified expense reports.  

The headline raises a couple of interesting issues for employers.  First, it reminds us that allegations of sexual harassment are extremely serious and potentially career-ending.  Those at the highest levels of an organization should never feel they are above the law, so to speak.  Second, it highlights the importance of workplace investigations, which can sometimes take unexpected turns.  The investigator of the allegations against Hurd presumably did not commence the investigation with concerns about expense reports.  But he or she uncovered the issue and pursued it.  Finally, romantic relationships at work, particularly when the parties are in a superior/subordinate relationship, can be fraught with danger.  There are certainly occasions when such relationships work out, but when they don’t, things can often turn ugly, for everyone involved.

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Perception is sometimes reality. But not in workplace investigations.

By on March 19, 2010 in Our Blog

I’ve been thinking about workplace investigations a lot this week.  Probably because I’m in the middle of one and also working on some new training on best practices in conducting investigations.  We’re all familiar with the adage “perception is reality,” the idea being that if things look a certain way to someone, even if they’re wrong, their view is entitled to some deference, or at least recognition.  But in the world of workplace investigations, the investigator needs to take a more objective look.

Consider this hypothetical.  An employee alleging some kind of unfair treatment recalls a meeting in which her supervisor swore at her.  She recalls the exchange with much emotion, and unless she’s the next Meryl Streep, it seems pretty clear she fully believes her account.  Her supervisor, however, tells an equally persuasive but contradictory story.  She explains, and witnesses confirm, that the alleged profanity is simply not in her vocabulary.  Must the investigator conclude someone is lying?  Not necessarily.  

When emotions run high in the workplace, and they usually do by the time a workplace investigation is underway, recollections can reflect an individual’s general perception.  It is entirely possible that in the above scenario, the complainant truly believes her supervisor swore at her, even if no such thing occurred.  The trick for the investigator is not to get bogged down in everyone’s varying perceptions, and instead to try to discern the “truth.”  This can be a tricky proposition, to be sure.  But experienced investigators can do a pretty good job in sifting through the facts.

Regardless of the investigation’s outcome, there is good news for employers.  Even if the investigator makes a mistake (i.e., reaches the wrong factual conclusion), the employer will be protected from liability so long as the investigation conducted was fair, reasonable and thorough.

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When it comes to harassment, employers need to make sure the left hand knows what the right hand is doing

By on December 1, 2009 in Our Blog

If a single plaintiff alleges co-worker harassment, can s/he offer evidence of other employees’ wholly unrelated harassment complaints, even if those complaints occurred at different locations and involved different employees?  The Eighth Circuit answered this question with a resounding “yes” in Sandoval v. Amer. Building Mainten. Industries.

In Sandoval, decided in August 2009, the plaintiff alleged a hostile work environment by her co-workers.  She conceded the employer did not have actual knowledge of the harassment, but claimed it had constructive knowledge based on harassment complaints by other employees during the same time frame in which the alleged harassment against the plaintiff occurred.  In other words, according to the plaintiff, the mere fact that other people complained about alleged harassment was enough to place the employer on notice (thus kicking off its legal obligation to take reasonable steps to end the harassment).  The fact that plaintiff did not know about the other alleged instances of harassment was of no import, she claimed.  The trial court disagreed, ruling in the employer’s favor.  But the Eighth Circuit Court of Appeals held otherwise.  

Not only were the alleged other instances of harassment enough to place the employer on notice with respect to the plaintiff’s situation, but they also constituted persuasive evidence that the harassment allegedly suffered by the plaintiff was severe and pervasive.  The court stated “[i]rrespective of whether a plaintiff was aware of the other incidents, the evidence is highly probative of the type of workplace environment she was subjected to, and whether a reasonable employer should have discovered the harassment.”

So what’s the takeaway for employers?  Our advice is that all instances of alleged harassment be catalogued in a central location (ideally, in HR).  This way, complaints of harassment that are seemingly unrelated can be considered and handled in a proactive and consistent manner.  Not only will such a practice help employers stay on top of their workplace environments, but it will also help in the event of a lawsuit, as the plaintiff will undoubtedly request this information (and is entitled to it under the reasoning in Sandoval).  Better to know what the evidence is before a plaintiff demands it, so that the employer can keep on eye on the effectiveness of its harassment prevention program.   

If you do not have a harassment prevention program in place, Warren & Hays can help.

 


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Good anti-harassment policy and attempt to respond to complaint? Not necessarily enough, rules the Fourth Circuit.

By on July 30, 2009 in Our Blog

On July 21, 2009, the Fourth Circuit reversed a grant of summary judgment to the employer in EEOC v. Central Wholesalers, Inc.  Central Wholesalers (“Central”) had a well-written and publicized harassment policy, including a multi-layered complaint procedure.  It also attempted to respond to a number of complaints made by La Tonya Medley, an African-American female who alleged sexual and racial harassment.  But, while the trial court was persuaded that Central had taken appropriate steps to end the harassment, the Fourth Circuit disagreed, essentially characterizing Central’s actions as too little too late.

Some specifics:  co-workers consistently referred to women as “b***hes” and used the word “n***r” frequently.  One co-worker had a pornographic screensaver and listened to porn in his cubicle.  Per the company policy, Medley first approached the offenders and asked them to stop.  But, the conduct only increased.  Therefore, also according to policy, she went to her supervisor.  The supervisor did nothing immediately and then spoke to the co-workers.  Again, nothing changed.  In fact, the pornographic screensaver remained for about a week and a half following the supervisor’s discussion.  Even after that, the co-worker’s workspace was replete with Playboy materials.  Upper management eventually held a team meeting to discuss appropriate language in the workplace, though to little effect.  Thereafter, Medley saw a couple of blue-colored mop-head dolls hanging by nooses tied around their necks.  She brought this to the attention of another supervisor, who did not report the incident.  

Shortly thereafter, Medley left work, telling her supervisor she did not feel safe.  She then sent an email to upper management complaining she had been subjected to hostile work environment.  No one responded, but Central did commence an investigation. Following the investigation, one employee was issued a verbal warning and was sent to anger-management training.

In reinstating the sexual and racial harassment claims,the Fourth Circuit held that despite Central’s policy, its efforts to curtail the harassment were ineffectual.  Further, the court stated the attempted responses were not “prompt” enough (e.g., waiting a week and a half to remove the pornographic screensaver).  Thus, it will be up a jury to decide Central’s fate. 

The bottom line for employers: When faced with a harassment complaint or simply knowledge of a potential harassment issue, act promptly (this generally means immediately) and make sure your actions serve to end the harassment!  Check in with the complainant to make sure the issues have been successfully addressed.  Also, it is absolutely critical to train supervisors on how to respond to complaints.

 We conduct interactive training sessions tailored to client needs, so feel free to inquire!

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