Stuntman’s death on ‘The Walking Dead’ set a sad reminder of common workplace hazards

July 18, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Tragically, stuntman John Bernecker died last week in Atlanta after falling 30 feet to a concrete floor while working on a fight scene for AMC’s zombie-apocalypse series “The Walking Dead.” In response, the show temporarily halted production of its eighth season, and the Occupational Safety and Health Administration (OSHA) opened an investigation.  Safety Always

According to OSHA, more than 4,500 workers are killed on the job every year, and approximately 3 million are injured.  While all accidents cannot be avoided, under the Occupational Safety and Health Act, every employer is responsible for the safety and health of its employees while on the job.

Last October, OSHA released its annual list of the 10 most frequently cited safety and health violations, based on data compiled from nearly 32,000 workplace inspections:

  1. Fall protection
  2. Hazard communication
  3. Scaffolds
  4. Respiratory protection
  5. Lockout/tagout
  6. Powered industrial trucks
  7. Ladders
  8. Machine guarding
  9. Electrical wiring
  10. Electrical, general requirements

This list rarely changes from year to year, and OSHA contends that the number of workplace deaths and injuries would dramatically decline if employers focused on correcting these hazards.

The stuntman’s death on the set of “The Walking Dead,” which resulted from injuries associated with a fall, is believed to be the first stunt-related death reported in the United States in the last 17 years. Injuries from falls, however, especially in the construction industry, remain among the most common workplace hazards and continue to dominate OSHA’s list, with fall protection, scaffolds, and ladder issues among the top 10.

Of course, OSHA regulations are the bare-minimum standards employers must meet to be in compliance with the law, but employers should strive to go above and beyond the minimal requirements to ensure a safe workplace for their employees. Not only is it the right thing to do, but studies have shown that providing a safe workplace reduces costs, raises productivity, and improves morale, and that’s just good business.

For more information and OSHA’s recommendations for creating a safety and health program, go to www.osha.gov/shpguidelines. Finally, if your business is facing an OSHA investigation or needs advice about OSHA compliance, you should consult your employment counsel.

May you rest in peace, Mr. Bernecker.

New media rating seeks to bring common sense to gender stereotyping

July 10, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

When my son was five and constantly arguing and negotiating for extra dessert or whatever it was that he wanted at any given time, people would often say, “You should be a lawyer!” His response was always: “I don’t want to be a lawyer because that’s a girl’s job.” While slightly humorous because lawyers are not stereotypically female, I would always respond that there was no such thing as girls’ jobs or boys’ jobs. Because I was a lawyer, he saw the world through that prism. Despite what kids see in real life–that the world is filled with men and women who do not conform to stereotypes in their careers and in division of labor at home–according to studies by Common Sense Media, movies and television have not kept up with the times; and undoubtedly, media play a huge role in how we all view the world–not just how kids do.  Gender Equality

Common Sense Media is a nonprofit organization that runs a website providing parents and teachers with advice on media and technology for kids. It publishes independent ratings and reviews for nearly everything kids want to watch, read, play, and learn. Common Sense Media is based on the premise that images kids see early in life can have a significant long-term effect on their perception of the world. While much attention has historically been focused on the impact of violent movies, video games, and other media, one of the less discussed areas is on-screen depiction of gender.

In late June, Common Sense Media expanded its rating to include how well TV shows and movies combat traditional stereotypes. It developed the ratings based on research into gender portrayal in the media. The research found that media images have tended to suggest masculine traits are favored over female ones and that girls should focus on their looks. This, in turn, can lead to tolerance of sexual harassment and the reinforced beliefs about what men and women can do, and thus what careers they feel they should choose. A rating of “positive gender representations” will appear with a movie or TV show, which means that the reviewers judged it to prompt boys and girls to think beyond traditional gender roles.

A slew of online comments posted in response to a New York Times article about this new rating system suggest that this rating has been met with some controversy from those parents who have chosen traditional roles, anticipating that it might ultimately alienate parents as seeming judgmental.

Regardless of this controversy over whether movies that depict stereotypical roles or traits for men and women should be devalued by this new rating system, at work, basing employment decisions upon gender stereotypes is illegal. In 1989, the Supreme Court first ruled that gender-based stereotyping violates Title VII. In Price Waterhouse v. Hopkins, the plaintiff claimed that she was denied partnership at her accounting firm based on her lack of conformity to stereotypes about how women should act and what they should look like. Her male co-workers described her as aggressive, foul-mouthed, demanding, and impatient with other staff members. The Supreme Court recognized that making employment decisions based on gender stereotypes is a violation of Title VII of the Civil Rights Act of 1964.

Additionally, although sexual orientation or gender identity are not a listed as protected categories within Title VII’s list, recently, a growing number of federal circuit courts have expanded Title VII’s protections to include sexual orientation and gender identity as protected classes under this sexual stereotyping theory. Because of this, uniform policies have been under strict scrutiny to the extent employer standards reinforce stereotypical gender roles. Historically, under federal law, differing standards based on sex or gender were permitted so long as they did not impose an undue burden, but we are beginning to see a shift in what will be permissible under Title VII as this area of the law develops.

New York City Commission on Human Rights has recently weighed in and issued broad policy guidance on impermissible uniform or grooming standards. Some examples of prohibited rules are as follows: requiring different uniforms for men and women; requiring women to wear makeup; only permitting employees who identify as women to wear jewelry; only permitting employees who identify as male to have short hair or requiring employees to always have long hair pulled back unequally based upon gender.

It remains to be seen how much this new rating will affect sales, which may, in turn, affect future media writing. My personal view as a mother and as an employment lawyer–why not praise media that fight stereotyping and force us all to see the world through the legally required prism!  Isn’t this the first step toward inclusion?

 

Tesla’s CEO makes personal pledge for employee safety

Kristin Starnes Gray

Tesla, an electric-automobile manufacturer, made headlines last month after Worksafe, a California-based worker advocacy group, released a report indicating that the injury rates at Tesla’s Fremont manufacturing facility were higher than the industry aNissan Mechanicverage in 2014 and 2015. For example, the report indicated that the rate of serious injuries at Tesla’s Fremont plant (i.e., those resulting in days away from work, restricted duty, or transfer) was approximately double the industry rate for 2015. The report further questioned Tesla’s claim that injury rates had fallen between 2016 and 2017, with Worksafe arguing that the injury data Tesla had recorded at that time was too preliminary to be considered accurate.

In an effort to improve safety, Tesla has recently made a number of changes, such as: adding a third shift to reduce overtime and improve safety; hiring an ergonomics team to focus exclusively on improving health and safety and reducing ergonomic risks; and adding a safety team to each department. Most recently, Tesla CEO Elon Musk took the additional step of sending this e-mail to employees to demonstrate just how serious he is about employee safety:

No words can express how much I care about your safety and well-being. It breaks my heart when someone is injured building cars and trying their best to make Tesla successful.

Going forward, I’ve asked that every injury be reported directly to me, without exception. I’m meeting with the safety team every week and would like to meet every injured person as soon as they are well, so that I can understand from them exactly what we need to do to make it better.  I will then go down to the production line and perform the same task that they perform.

This is what all managers at Tesla should do as a matter of course. At Tesla, we lead from the front line, not from a safe and comfortable ivory tower. Managers must always put their team’s safety above their own.

It will be interesting to see what comes from this personal pledge by Musk. In the meantime, all employers should be continually evaluating and reevaluating their safety efforts in the workplace. To drive home its mission of workplace safety, the Occupational Safety and Health Administration (OSHA) currently lists on its website the names of workers across the country who have lost their lives on the job in various industries, along with the dates, locations by state, and manners of their deaths. According to OSHA’s figures, “[m]ore than 4,500 workers lose their lives on the job every year” across the country and across industries. Planning, training, and supervision are keys for prevention.

Wonder Woman and the fight against unconscious bias

June 13, 2017 - by: David Kim 0 COMMENTS
David Kim

Not only has the recently released Wonder Woman movie garnered mainly favorable reviews, but it has been highly successful at the box office, having made more than $200 million domestically in its first two weeks of release alone. From a purely movie industry insider perspective, the success of Wonder Woman is incredibly important to Warner Brothers and the DC Comics line of movies. After subpar reviews for Man of Steel and Batman v. Superman, Wonder Woman is key to helping the aforementioned keep pace with the juggernaut that is the Marvel Cinematic Universe, which seemingly churns out title after title on an almost quarterly basis.  Wonder Woman Action Figure

More important, Wonder Woman demonstrates that a female-driven superhero movie can be not only be good but also financially successful and appeal to a mass audience both domestically and globally. In addition, the fact that the movie’s director, Patty Jenkins, is also female helps further advance the notion that female directors are just as equipped to handle big-budget, superhero-type movies. The hope of course is that this will lead to more female centric movies as well as female director roles in a genre that typically has been dominated by male figures.

Of course, no success story would be complete without its own set of controversies, warranted or not. Some stem from the fact that Wonder Woman is played by Gal Gadot, who is Israeli and served a mandatory two-year stint in the Israeli Defense Forces as required of most Israeli citizens. Abroad, this has caused certain countries to ban, or consider banning, the showing of Wonder Woman due to Gadot’s past military service. Domestically, media pundits have lamented the fact that Wonder Woman is not “American” or “patriotic” enough, despite the fact that Wonder Woman is a fictional Amazonian warrior princess in the comics. In addition, the Washington Post had a lengthy article discussing and debating, in the context of Gadot’s nationality and religion, the interplay between Jewish identity and race.

Yet, race and ethnicity are not the only issues being discussed. Although Wonder Woman has made positive strides toward female representation in films, gender equality also has become an issue. Specifically, certain theaters across the country held limited female-only screenings of the movie to embrace “girl power” and female empowerment, advertising it as “No Guys Allowed” for that special screening. However, these screenings were met with by complaints from men, as well as legal scholars, who claimed that banning any particular group from public accommodation, such as movie theaters, was discriminatory and violative of applicable law, as well as serves to create a divide amongst gender groups when the movie is meant to celebrate gender equality.

While one can certainly understand that point of view, others also understandably argued that these limited screenings were a fun, celebratory way to watch the movie and that men could watch any of the multitude of other offered screenings on a daily basis. Regardless of where one stands on the multitude of issues involving gender, race, religion, and nationality, the reality is that Wonder Woman has created discussions involving these controversial and sensitive topics.

This includes unconscious bias. While the concept of unconscious bias has been in the lexicon for many years, it is interesting when considered in the context of Wonder Woman. Unconscious bias refers to bias that we may be unaware of and that is triggered by our brain making snap assessments based upon our background, cultural environment, and personal experiences. Essentially, it’s your analytical process taking shortcuts and using past knowledge to make assumptions.

Unconscious bias could manifest itself through the belief by industry executives that since Catwoman and Elektra were unsuccessful female-driven superhero movies, this meant audiences weren’t receptive to a female comic book hero movie. Rather than analyzing the fact that these prior endeavors were simply terrible movies that no one would want to see and that if you deliver a good movie, individuals of all sexes would be interested in watching it. One need look no further than the fact that the holy triumvirate of DC Comics involves Superman, Batman, and Wonder Woman (all created in the late 1930s and early 1940s), yet it took until 2017 for Wonder Woman to get her own movie, while Superman and Batman have had multiple iterations over the years.

Unconscious bias could also manifest itself in the belief that Wonder Woman of course must be portrayed by an American, simply because she has always been portrayed in other media as American, her “costume” is red, white, and blue, and because she has historically fought for American causes. Yet, this is an assumption that doesn’t take into account her actual origin history from the comics, nor recognizes that it is possible for someone to not be “born” American, yet can still fight for America and its values. The Washington Post article referenced above, discussing Jewish identity and race, also touches upon the assumptions held by many, likely created through unconscious bias.

Just like in the context of Wonder Woman, it is important to understand the role that unconscious bias plays in the workplace. Implicit associations and assumptions often can lead to actions that result in claims of discrimination, or even harassment and retaliation. Many major companies have been, and are, addressing unconscious bias in the workplace through a variety of initiatives and training, and employers should at least be aware of these efforts and determine whether it may make sense for their businesses. That includes placing a primary emphasis on employee skills when dealing with hiring and promotion, reviewing internal data to determine whether it shows that minorities and females are not well represented in upper-level positions and asking why, as well as promoting group discussions toward employment decisions to ensure unconscious bias isn’t a primary factor as well as to help individuals recognize any unconscious biases he or she may harbor. While the concept of unconscious bias may seem abstract or conceptual, it is real and something employers must be aware of in today’s social climate if they want to stay ahead of the curve.

White House gone wild!

June 07, 2017 - by: Matt Gilley 1 COMMENTS
Matt Gilley

These days, just about anyone with an Internet connection and some time on their hands enjoys a wonder of the modern age: binge-watching. One of the first, and still one of my favorites, is Netflix’s House of Cards. No matter how over-the-top the plot twists become, no matter how difficult it is to follow the multilayered schemes and shifting alliances, I can’t quit the drama surrounding the Underwoods and their White House. (It also helps that I get an added bonus of local color, since Frank Underwood hails from Gaffney, South Carolina, next door to where I sit in Spartanburg. One early episode even featured the Gaffney Peachoid – look it up.) businessman and house of cards cartoon

Frank Underwood’s approach to personnel is … well, unsentimental and often brutal. We all know the rule of at-will employment: Both the employee and the employer may end their relationship at any time, with or without notice or reason. Congressman, Vice President, President, and [spoiler alert!] now Mr. Underwood seems bent on adding a little twist to the familiar rule: An employer may terminate an employee’s employment at any time by killing said employee, without notice and often without much reason. The recently released season five is no exception.

Needless to say, Underwood is a man who holds little regard for the retaliation and whistleblower protections afforded to those who serve at his pleasure.

I’m a lawyer, and a hammer considers everything it sees to be a nail, so I often wonder what it would be like to defend the deposition of a fictional character or sit at a trial while that character testifies. Frank Underwood, if he were as candid under oath as he is with the camera, would probably have me reaching for his checkbook in an instant (check that–he would have me reaching for the Fifth Amendment in an instant). Take, for instance, these quotes:

  • Right off the jump in the show’s first episode, Frank’s neighbors’ dog was struck by a car. He stood over the dog, looked into the camera, and said, “There are two kinds of pain. The sort of pain that makes you strong, or useless pain. The sort of pain that’s only suffering. I have no patience for useless things.” Then he strangled the last bits of life out of the pooch while no one was looking. His testimony is not off to a great start.  I also wish he hadn’t worn his favorite “F” and “U” cufflinks.
  • Of all the things I hold in high regard, rules are not one of them.” Oookay. Maybe we can recover from this one … maybe I can cast him as ambitious, results-oriented, and a real go-getter. Folks like a take-charge guy, don’t they?
  • For those of us climbing to the top of the food chain, there can be no mercy. There is but one rule: Hunt or be hunted.” Oh, man. C’mon, Frank! Throw me a bone here! I realize you’re competitive, but a lot of your people are no more, and those folks over in the jury box are getting nervous and scoping out the exits.
  • I have zero tolerance for betrayal, which they will soon indelibly learn.” Lovely, Frank. I’ve stopped taking notes, and I’ve joined the jury in scoping out the exits.
  • When you’re fresh meat, kill and throw them something fresher.” And with that, I will take my leave.

Any other House of Cards gems that you like? Feel free to include them in the comments.

Avoid singing the blues: how employers can mitigate wage/hour liability

May 30, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

In the last few years, there have been multiple headlines noting that celebrities are being sued for their (or their businesses’) failure to pay wages in accordance with applicable state and/or federal law. Two such recent lawsuits involved famous singers.

Overtime (2)

First, Lady Gaga had a lawsuit brought against her by her former personal assistant, Jennifer O’Neill. The assistant sued Gaga for $400,000 under New York state law and the federal Fair Labor Standards Act, alleging that the singer failed to pay her for numerous hours of overtime (including being made to sleep in her bed with her!). O’Neill claims that, instead, the singer only compensated her at a flat rate of $75,000 annually, and that the failure to pay her overtime hours was unlawful. Lady Gaga and O’Neill settled out of court weeks before the trial was scheduled to begin.

Rapper T.I. also recently became the object of wage and hour violation allegations. He was an owner of a now-defunct Atlanta restaurant, Scales 925. A number of past employees of his restaurant filed suit against him and others, alleging that they were forced to work overtime without being compensated for the hours at the required overtime rate. The lawsuit claimed more than $50,000 in unpaid wages.

T.I. claimed that he did not exercise any control over the management of the restaurant or its operations and should not be held personally liable (as most Human Resources professionals know, wage violations can have personal liability attached to them, unlike most EEO claims). T.I. claimed, instead, that he served as a silent financial investor and had no knowledge of the alleged wrongful pay practices.

Of course, if famous musicians who have teams of attorneys swarming around them all day can find themselves saddled with unpleasant wage-hour litigation, the average company certainly can! Here are tips on how to mitigate risks with respect to wage and hour complaints:

  • Require all employees to record their time daily.
  • Audit job descriptions for exempt positions to determine if they match the actual duties performed.
  • Have employees sign off on pay and time records, noting that they are accurate.
  • Require employees and their supervisors to sign off on any changes or alterations made to time records.
  • Train managers on lawful pay practices and company policies and procedures with respect to same, especially those related to “off the clock” work.
  • Put pay practices in writing and have them signed by the employee, stating that he or she has reviewed them and understands them and agrees to report immediately any failure (or perceived failure) by the company to pay them properly.
  • If you are a franchisor, be sure that you are not influencing the franchisees’ pay practices so you can avoid joint-employer claims.
  • Obtain written authorizations for any deductions made from paychecks. Keep in mind that many states have specific laws or regulations as to how such authorizations must be worded and handled.
  • Pay employees for breaks or meal periods that last less than 20 minutes.

By following these practices, you can avoid (or at least decrease the risk of) costly lawsuits by employees who claim that the company failed to pay them owed wages. Unlike Lady Gaga and T.I. who had to sing the blues, you want your company to hum a happy tune.

 

Howard Stern’s day off : the danger of digging for details when employees call in sick

May 23, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Shock Jock Howard Stern took an unexpected day off from his radio show last week which prompted a firestorm of speculation on social media as to the underlying reason for his absence.  Although Stern’s absence was initially attributed to a “personal day,” many fans speculated that Stern’s sick father was the real reason he missed work.  Sickness absence

To quell the speculation, workaholic Stern revealed to listeners that he took a rare day off because he was, in fact, sick and his voice was not strong enough to do his radio show.  Even after Stern’s announcement, however, some fans continued to sense a conspiracy and wanted more details, with one fan questioning, “If [Stern] taking a sick day is no big deal, why keep it a secret?”

Obviously irritated by the intrusion into his personal life, Stern asked, “Why was it such a big deal that I took a f**king day off?”

This incident brings up an important lesson for employers who may be speculating about the real reason an employee called in sick from work.  Generally, the Americans with Disabilities Act (ADA) prohibits employers from asking whether an employee is an individual with a disability or about the nature or severity of a disability, unless the questions are job-related and consistent with business necessity.

According to the Equal Employment Opportunity Commission and some courts, asking an employee to explain the underlying reason for a sick day may violate the ADA.  Thus, employers should refrain from asking intrusive questions that tend to reveal information regarding an actual or perceived disability.

Also, if your business has a sick leave policy that requires employees to provide a doctor’s note, you can steer clear of making an unlawful medical inquiry under the ADA by clarifying that the doctor’s note need only state:  (1) the date on which the employee was seen; (2) that the absence from work was medically necessary; and (3) the date on which the employee will be able to return to work.

Lastly, you should train supervisors and HR personnel not to pry into the underlying reason for an employee’s use of sick leave unless the questions are indeed job-related and consistent with business necessity.

 

 

 

10-step plan for fair and balanced approach to preventing workplace harassment

May 17, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

In less than a year, Fox News has lost its founder and one of its most well-known anchors due to widespread sexual harassment allegations. Fox News recently reported that 20th Century Fox paid $10 million in sexual harassment settlements in the first quarter of 2017 alone. How can Fox News be proactive in avoiding harassment claims in the future? Prevention is the best tool to avoiding claims. Here are some essential steps to prevent and correct unlawful harassment.  Stop Sexual Harassment red stop sign held by a female

1. Disseminate a workplace harassment policy that complies with state and federal anti-discrimination laws. The policy should encompass all forms of unlawful harassment based upon all protected classes, not just sexual harassment; although sexual harassment should be separately discussed within the policy.

2. The policy must be communicated to all employees at the time of their hire and should also be posted in the workplace. Employees should be given an acknowledgement to sign so that they acknowledge that they have read and that they understand the policy.

3. The policy must contain an effective complaint procedure that affords the employee bringing the complaint the opportunity to bypass the alleged harasser; however, the complaint procedure should not be too broad so as to encompass everyone at the organization.

4. The policy must contain an anti-retaliation provision, ensuring that the employees are aware that they will not be retaliated against for complaining internally, filing lawsuits/charges, or participating in an investigation.

5. The policy must not guarantee confidentiality; rather, it should state that, to the extent possible, complaints will be kept confidential. Obviously, an employer can’t keep a complaint confidential to the extent it must share the allegations during the course of an investigation. An employer, however, can guarantee that it won’t share the allegations with those who don’t have a reason to know them.

6. Employees (both managers and employers) should be trained on preventing sexual harassment and other forms of harassment at the time of hire and every two years.

7. Don’t require employees to put their harassment complaints in writing.

8. Respond to complaints immediately by conducting thorough and unbiased investigations.

9. Take appropriate remedial action following substantiated complaints of unlawful harassment by issuing disciplinary action commensurate with the substantiated conduct and continuing to monitor the relationship and the alleged harasser’s conduct toward others.

10. Keep your eyes and ears open and mandate that your supervisors do the same–if they see something, they must say something. Moreover, rumored allegations also should be explored.

Standing ovation for Adam Jones at Fenway

Kristin Starnes Gray

Last Monday, the Orioles made headlines for more than just their 5-2 win over the Red Sox at Fenway Park.  Orioles player Adam Jones reported that Red Sox fans called him a racial slur several times and threw a bag of peanuts at him as he was entering the dugout. Police reportedly ejected 34 people, including the person who threw the bag of peanuts. The Red Sox, Boston Mayor Marty Walsh, and MLB Commissioner Rob Manfred all condemned the fans’ behavior.  Fenway park at sunset

The following day, fans welcomed Jones with a standing ovation at Fenway Park before his first at-bat. Despite recent hostility that has arisen between the two teams after Manny Machado injured Boston’s Dustin Pedroia, Red Sox starter Chris Sale stepped off the mound on Tuesday to allow more time for Jones’ ovation. In addition, Jones thanked two Boston players, Mookie Betts and David Price, for their supportive text messages. African-American players for other teams also have come forward about their experiences with being called racial slurs by fans during games.

While we typically think of harassment in the workplace as occurring between two employees, Jones’ experience is an example of how important it is to be vigilant about the reprehensible behavior of non-employees. Title VII  of the Civil Rights Act of 1964 is the federal law that prohibits discrimination in the workplace based on various protected categories, including race.  As the Equal Employment Opportunity Commission has explained, “Harassment can occur in a variety of circumstances . . . . The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee . . . . The employer will be liable for harassment by non-supervisory employees and non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.”

Some important steps employers can take to prevent harassment in the workplace include, but are not limited to:

  • Establishing anti-discrimination and anti-harassment policies with complaint procedures;
  • Communicating those policies and procedures to all employees;
  • Training supervisors on what to do when an employee complains; and
  • Taking prompt and appropriate corrective action to address employee concerns.

In the meantime, let us take to heart these two teams’ classy showing of solidarity and mutual respect. Let this be an example to us of, not only good sportsmanship, but also the importance of treating each other with dignity and following the Golden Rule.

Fox News & Bill O’Reilly—best practices for conducting internal workplace investigations

May 01, 2017 - by: Rachel E. Kelly 0 COMMENTS
Rachel E. Kelly

Bill O’Reilly’s reign as a Fox News favorite came to an abrupt end amid a series of sexual harassment allegations against him. After the most recent allegations, Fox News hired large law firm Paul Weiss to conduct its internal investigation.    Employment Incident  Investigation Form

Workplace investigations are tough, and if your organization can’t afford (or simply does not want) to hire a legal giant to handle the internal investigation, there are some key steps to ensure the investigation is fair, impartial, and efficient.

Before we start, you should know there are no clear, one-size-fits-all approach to investigationseach probe must be tailored to the size, structure, and resources of your organization. Even so, organizations often fail to conduct a sufficient investigation by delaying the process, failing to take the complaint seriously, focusing on perception rather than the facts, failing to follow through, and neglecting to document its efforts. By following the tips in this article, hopefully you can avoid these common pitfalls.

First, it’s important to know what kinds of complaints legally require an investigation or when conducting an investigation would provide a defense against later claims:

Getting started

If an employee of your company says, “I need to talk to you…” there are some important best practices:

  1. Ask the person to summarize the issue.
  2. Ask yourself if you are the correct person to speak with the employee about the issue. If you are, then continue the conversation, making sure to document the individual’s concerns. If you are not the correct person, call the appropriate person right away and set up a time for the reporter to meet with the appropriate person.
  3. If you are the person to take the employee’s initial concern, remember that you are not the employee’s friend or confidantyou are an extension of the organization, and information you learn may impute knowledge on the organization.
  4. Be sure to emphasize the organization’s open-door policy and its policy against unlawful retaliation.
  5. Actively listen to the facts of the complaint. Remember, at the end of the day who, what, when, and where are necessary components to a proper workplace investigation. Be sure to take notes. Summarize the facts as told to you and once completed, go back and have the individual read what you’ve written for correctness. If possible, have the person draft a statement and sign and date it.
  6. If you need to, ask clarifying questions, but don’t second-guess or question the individual’s recollection of events.
  7. Finally, at the end of the conversation, thank the employee for coming forward, and state that HR will look into the issue further and determine the need and scope of further investigation.

Investigation strategy

I’ve listened to the complainant’s concerns, now what? After the initial conversation it’s time to develop an investigation strategy.

  1. Consider the need for immediate preliminary action or “pending investigation.” Consider whether the employee or accused will be on some leave of absence or scheduled time off, which will allow time to conduct a thorough investigation. Also, consider temporarily transferring or reassigning employees.
  2. Identify the need for an investigation. Was there a formal internal complaint or grievance? A charge, inquiry, or audit by an administrative agency? If so, these are examples of the types of complaints that companies should take seriously and immediately launch an investigation.
  3. Determine the goals of the investigation. Determine whether there are claims of illegal activity. Was company policy violated? If the alleged behavior continues, will it affect the company’s morale or result in productivity decline? Is the goal to show compliance with the law? Having a clear set of goals for the investigation will help direct you in determining who to speak with and what documents to collect.
  4. Assess the potential disadvantages. Consider whether the cost, time, and resources are worth conducting the investigation. Will the investigation disrupt your organization’s morale or productivity? Will the investigation yield negative publicity?
  5. Select the appropriate investigator. Make sure to select an investigator at the appropriate level given the severity of the allegations. Is the investigator credible? Is she insulated enough from the actors and allegations that she will be able to maintain confidentiality? Does the investigator have knowledge of your organization’s business, policies, procedures, and applicable legal issues?
  6. Identify and interview witnesses. Start by identifying those that must be interviewed, i.e. the accused, anyone the complainant has identified as a confidant, and any witnesses to the claims. Give special consideration to the order in which to conduct the interviews, and what happens if/when the allegations are made public. Consider conducting interviews in a private location that will not disturb the normal operations of the business. Be sure to allot for enough time between interviews, so as to prevent interviewee overlap. For every interviewee, including the complainant and the accused, affirm that the company has not yet made any determination as to the claims.
  7. Identify and gather documents. Collect any notes the complainant made. This may include a journal or calendar of important events. Identify the rules, policies, and procedures implicated. Consider whether to involve IT’s assistance with preserving e-mail, computer hard drives, access cards, and phone logs.
  8. Prepare an investigation roadmap. As you interview witnesses and identify important documents, create a timeline of the known facts and allegations. When interviewing witnesses, determine whether to conduct them in person or by telephone. Also, prepare an outline of questions. Remember the importance of developing who, what, when, and where.
  9. Consider confidentiality and security. Determine whether it’s vital to the conversation to tell the witnesses what the allegations are. If you do share the nature of the allegations, determine early how much you’re going to tell.
  10. Anticipate potential detours, red herrings. Prepare to be surprised.

The thoroughness of your internal investigation matters–not only because it demonstrates that claims against your organization are taken seriously, but because people forget the specifics (and they lie!). Having a well-developed investigation strategy and following our simple, but effective, best practices can help prevent investigation blunders.

Rachel Kelly is a Senior Associate in FordHarrison’s Dallas office. Rachel can be reached at rkelly@fordharrison.com or 214-256-4702.

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