Workplace Investigations with Sarah Piscatelli and Tom Jones

Speaker A: Foreign.

Speaker B: Welcome to Human Solutions from aim HR Solutions on Trustory fm. I'm Pete Wright. Every HR professional knows the feeling a complaint lands on your desk and before you've even finished reading it, you're aware that whatever you do next could be read back to you in a deposition. When workplace investigations are where good intentions collide with real legal exposure, where the instinct to keep the peace move quickly or protect a valued employee is often the exact instinct that gets an employer into trouble. This week, our own Sarah Piscatelli and Tom Jones joined me to talk about how to do this. Well, when a complaint actually requires an investigation, who should be holding the pen and the subtle mistakes that could turn a manageable problem into a lawsuit. If you've ever wondered whether you're overreacting or worse, underreacting, this one's for you, Tom. Sarah, welcome, welcome. This is a great conversation. I don't know how we're going to do it in a half hour. Uh, but you have, have told me with great confidence that you can do it. Uh, let's get started. First of all, why, why are we talking about this today? Workplace investigations are, uh, you know, common, challenging issues employers face. They're a part of the workaday, uh, life of an HR professional. But for some reason this has come up for us in this forum today. Why are we, why are we doing this? Who would like to start?

Speaker A: Ah, well, I mean, complaints happen to work. You bring a whole bunch of people together into a confined workspace or into a confined area and they're going to be. Complaints will arise over. May just simply be, um, you know, work styles or something like that in the beginning, but then it transforms into something more profound and HR has to get involved and has to be come part of that investigation determine whether or not. Well, first off, whether or not should there be an investigation and if not, how to figure to let it go. But if it does, how will they do that investigation?

Speaker C: And there are also some laws that, that actually require you to investigate. You know, so if you receive a complaint or, or, or knew or should have known of some harassment or discrimination going on, then you do have a legal obligation to investigate that situation.

Speaker B: Well, Sarah, and that was, that was going to be my next question. I mean, what are the types of complaints that we, that, that we are, are putting in the complaint bucket?

Speaker C: Sure, I'll take that. It's employee complaints that generally can be sometimes the harassment situations, very often interpersonal conflict, which could also possibly be harassment. There are complaints, um, of employee misconduct, um, and also Safety, workplace accidents and safety incidents. Those also need to be investigated. Um, there can be other breaches of confidentiality, somebody misusing company company information or company property.

Speaker A: And Sarah and I were talking the other day, God knows what else could happen. Some of the situation were completely, you know, what Sarah just went through, many of the main ones you hear about, but there could be some other surprise come out of nowhere.

Speaker B: Okay, what investigation related questions do you find employers are asking most often right now? I mean, as people who have picked up the phone to answer questions on the helpline? Uh, what are you, what are you hearing?

Speaker A: Do I have to do it?

Speaker C: Do I have to investigate?

Speaker A: Yes, you know, how bad is this? And oftentimes the HR person wants someone to talk it over with and talk it out, get a sounding board and say, gee, this is what happened, this is what happened. And our job is on the helpline, wherever it might be, is to be kind of a probing questioner back and saying who was involved, who said what, who did what, when did it occur, how frequently did it occur, whatever that might be. And so you're really trying to give them guidance as much as possible as to whether they should move forward with investigation or not.

Speaker B: We have this, that absolutely is our first major bucket. The do we actually need to investigate this? And I think there are some fine lines questions that may be based on assumptions that employers make, uh, that they potentially have more agency in the situation than they think. And to Sarah's uh, comment earlier, the employee is asking us not to do anything. Do we still need to investigate? In what circumstance? Do we not really have a choice?

Speaker C: Very few. In almost every instance, if an employee brings a complaint forward, you do have to investigate. Some investigations are pretty limited because the fact that, you know, the fact pattern isn't all that complicated. Right. Might mean talking to one or two people. But for most employee complaints, yes, an investigation should follow to at least look into it even. And you'll maybe have to tell the employee who doesn't want anything to be done about it that you are going to need to look into it and then you will keep it confidential to the extent practicable. You can never guarantee full confidentiality because the investigation requires you to talk to people. Right. So some, some information will be shared.

Speaker B: Um, there's some nuance in this bucket of questions. There are a couple of questions. For example, what if it's anonymous, somebody complains anonymously, what if there's no proof, what if nobody formerly complained? And finally, I think the one that exercises the most potential underreacting judgment. What if it's just workplace drama?

Speaker A: I think we were talking about this yesterday.

Speaker C: Uh, we were, yes.

Speaker A: If it's anonymous, ultimately you can try and look into it to the extent possible, but if you don't have the key background evidence from the person who may have filed the complaint, this occurred on that date, this time, this place, dated, this thing makes it much, much harder for an HR person can document to the extent possible. They may want to tell the supervisor in that department, hey, pay attention, because something may be going on in your department. This came through. So maybe people are unhappy, may try and give an intent, but it's hard when no one gives background details. It won't give you a point of contact to go back to and say, I'd like to get more information about what you're saying or not.

Speaker B: Sure, sure.

Speaker C: No proof.

Speaker B: What about the proof situation? Yeah. How do you handle. There's no proof.

Speaker C: That happens more frequently than we'd like in these situations where it's the classic he said, she said. Right. And having to assess credibility, um, it really, it. You can end up kind of with. With an inconclusive investigation, in which case, you know, generally there are steps you can take. First of all, you have to. I'm thinking, I'm putting this in like a harassment type context, you know, where it's one. One employee and another. And, um, you. You may need to separate. There might be steps you need to take. Separate the two of them so they no longer need to work together, if that's possible. And if the person who made the report of it agrees to it, generally you can't just move that person away. That would be considered retaliation for bringing the complaint. Right. So things like that that you need to do, you might do some retraining of managers or all employees on whatever the issue is. Right. And, um, you might need to revise policies, go back and, you know, take a look at, you know, people have different understandings of a certain policy, they behaved a certain way. You know, there are steps you can take that aren't necessarily discipline against somebody for wrongdoing. You know, so it doesn't necessarily end there.

Speaker B: I noticed neither of you have jumped on the last one. What if it's just workplace drama? Why. Why is it that in my head, I m. Am inflating that one as the riskiest?

Speaker A: Well, people may presume there was more there than actually is. As an HR person. You may presume that this is a sexual harassment case or this is a workplace bullying case, whatever. It may just be exactly what you're saying. Drama. And because it's hard to distinguish what exactly is drama may mean you end up having to talk to a few people before they all say that, wait, wait, it's not really that big a deal. He's always like that. You know, we've learned to live with it. It's annoying, but we've learned to live with it. Or she always complains, whatever it might be. And so you're trying to parse out whether that's a real violation of company policy, violation of the law, or just workplace drama.

Speaker B: This gets to. I think one of the things we've talked about a number of times on this show, which is the question of what and how much training do sort of line or department supervisors need, uh, to manage departmental, we'll say drama effectively and how they can. How are. What are their expectations of them to be able to suss out what's drama and what needs to be escalated, uh, to hr. Any particular guidance on supervisory training in this regard?

Speaker C: Yeah, my recommendation would be reach out to HR early on, you know, because this not only does it, it, it festers. This conflict continues. The workplace drama, it affects everybody in the workplace, even those who aren't involved in it. Right. If. And the bystanders are facing the backlash. So, so get HR involved in case you can have a conversation with the people who are involved and deal with it early and head it off. Right. So, so that is it. Um, but. But also, you do have to make sure that managers are aware, not just don't ignore it. Don't just go in and hey, guys, you know, try to deal with it as it pops up. You know, it's a persistent problem and you do have to address it as such, you know, and it could be a little more methodical about getting ahead of it instead of just tamping it down every time these two get into a beef.

Speaker A: Sarah made a comment before about the whole standard of knowing, knowing or should have known. A manager can't be willfully ignorant. They can't sit there and say, well, no one's really said it was harassment, so I'm not going to. I'm not going to worry about it. That's no good because it may blossom into harassment, may blossom into another violation of company policy or something. So you really want to make sure your manager, supervisors are the first line. They have to be alert to all this stuff, even though it isn't quote unquote, their regular job in the sense of getting production out the door or what have you. It's ah, a part of the job too.

Speaker B: And it's fundamentally a respectful part of the job. You're doing a respect to, uh, the conflict by addressing it in a proper fashion. And, uh, it is often disrespectful. I mean, how many young managers have I been through who have said, you know, there's conflict, they just need to grow up. Right. Like that is a fundamentally disrespectful way to handle a workplace conflict.

Speaker A: Exactly right.

Speaker B: And so there are ways, but it does get to our next best bucket of employer questions. Common employer questions. Who should handle the investigation? Now, you probably don't have a crusty old retired PI from the force just wandering around the queue.

Speaker A: Should have brought my hat on.

Speaker B: Yeah. Right. So, uh, who should handle the investigation? We, uh, have lots of questions around. Can HR handle this internally? When do you bring in a third party to audit the conflict? Um, you know, how do you, how do you move through some of these bigger questions?

Speaker A: Classic lawyer answer. Go ahead. Yeah, it depends. Right?

Speaker C: Yeah, it depends. I think in the majority of cases though, HR can handle it, you know, internally. Most, most investigations they can. If it's a very high ranking member of the staff, you know, it's the CEO. Certainly you'd like to get outside. Nobody feels comfortable investigating the boss. Right. So. So we'd look for an outside investigator. A good idea too early on is to, um, depending on the, this, the seriousness of the complaint is if you have an employment attorney reach out to them, that's somebody who could conduct the investigation. But in most cases they will want somebody else to be the fact finder. Right. Because the attorney's role is not the fact finder. They're an advocate for the client, the company. So they might say, you know, I'll find somebody who can do the investigation. We conduct investigations, uh, Tom and I do here at aim, you know, find an outside party that can, that can move forward with the investigation. They act as the fact finder, so your lawyer can guide you with that. But, but generally those are really the two main options, right? Internal or external then? External who? And an attorney could guide you that way. If you don't know where to go.

Speaker A: Exactly. And reputation is an issue too. Company reputation, in terms of the need to get the, you know, Sarah, the outside objective person may be what we need in this particular case because things are so stressful within, you know, the media has become aware of it, uh, some of the factors involved. And so the company really needs to have both deal with the problem and protect its image and the greater public

Speaker C: in some very small workforces. You know, if it's almost like everybody that works there is somehow involved in the issue. Right. Then you really need to get an outside investigator.

Speaker B: Yeah. When. When neutrality is compromised around almost every corner. How do you effectively guide employees when you have brought in the company lawyers during a, uh, during an investigation? At some point, employees who involved in the, uh, in a conflict may need to bring in their own counsel. Yes.

Speaker A: Usually they can't bring counsel on the property. Usually they may go get their own lawyer to go to court or go to the MCD or something like that. But that's usually after whatever effort they may have made internally is long come and gone.

Speaker B: Okay, fair. Well, it does lead to our next bucket of questions, which is what makes investigations so difficult. Questions like, for example, what if employees tell different stories. Classic, classic, uh, investigation, uh, puzzle. Can employees refuse to participate? Uh, I find that a fascinating puzzle. Uh, can employers promise confidentiality, a challenge we've talked about a number of times in this forum. What if employees start talking about the investigation to one another? Presumably? How do you handle what makes investigation so difficult? Sarah?

Speaker C: Yeah. I think you can assume that employees are going to talk about it, even though at the end of every interview, I will say it's better to keep this confidential. We'll ask that you keep this, this discussion confidential. That, you know, that they're. They're going to be people who talk about it. They just do. People talk. People talk in every workplace. Um, yes. So, um, in.

Speaker A: In causing workplace drama.

Speaker C: Exactly.

Speaker B: It is, It's. It's drama. Um, all the way down, guys.

Speaker C: You are going to have two different stories. And very often, you know, in investigations I've done, there's a group of witnesses lines up behind one person and another group lines up behind another, and there's just no in between. You know, it's very hard to sort out facts when you have a lot of support for both versions of the story. Right. Yeah. And, um. Yeah, no, those things. What other. Go back. You. You named a number of points, Pete.

Speaker B: I did, I did

Speaker A: stories.

Speaker B: That was. That was one. Can employees refuse to participate?

Speaker C: I would say that's a condition of employment, so they will be subject to discipline if they refuse to. And that's actually a good reminder that that should probably be in a policy or a handbook somewhere. Right. Saying that, you know, required as part of your employment, you have to participate and cooperate with any investigation. Right. So, yeah. And, um, it might be, you know, depending on how important they are too. You know, if you have somebody who doesn't want to participate, and they're not that important to it. You can still complete the investigation without them. Right. But, um, if it's a party to it, more or less, then it's. That's a different story. Yeah. Then you're really in trouble.

Speaker A: And I think Sarah alluded to it earlier about confidentiality. You want it, you can. You can promise it to a limited extent, obviously, but ultimately, you're gonna have to confront somebody who's gonna talk about what happened. And so if one party is. It's only a he said, she said. Say there's only two people involved. May become obvious once you confront the alleged wrongdoer. What exactly, who exactly said something about him or her. So it's pretty obvious. It's very hard to guarantee confidentiality. You can promise it to the extent possible.

Speaker B: Sure. I. It. This is one of those things where, um, you know, participation or an expectation of confidentiality, uh, you know, abdicating responsibility and stepping out of the. Of the, um, discussion seems to lead to, uh. That's a choice. That is participation, implicit participation, uh, by not participating. And, um, it is. It leads us to our next big bucket, uh, which is just a sort of a checklist of the big mistakes employers make when leading an investigation. And I wonder if you could start this part of our conversation by just giving me a tutorial for those listening on how to become a good investigator from an HR perspective. This is not a natural skill that you just have because you went and got your SHRM certification. It takes skill and time and patience and practice to learn how to do this. And I would love to know from both of your perspectives, how can we help the people listening to this conversation level up their own skills as investigators? Your thoughts? Where do you start?

Speaker C: I'll take that, Tom.

Speaker A: Good.

Speaker C: Okay. Uh, and you can chime in if I forget anything. When tasked with an investigation, I'll always it first. The person who's giving it to you is going to frame it a certain way. Right. But you keep a very open mind. You know, they sometimes, even if they're trying to be very neutral about it and not make judgments, you do kind of get the sense, you know, who they think is the wrongdoer, what they think is wrong, et cetera. But keep an open mind and do some planning in the beginning. Figure out who your witnesses. Is there any. Any documentation that I'm going to need? What are the company policies that. That this behavior violates? You know, try to get. You really take a little bit of Time to, um, to plan the investigation, but knowing full well that your, your plan is going to, it's going to take a left turn somewhere there, there'll be a plot twist or, you know, new information that you need to re. Interview somebody or, um, just something else comes to light. Or it could be an entirely different issue once you go along. And in generally what I do is I would first talk to the complain who made the report. Then if it's accusing somebody of something, I would talk to the accused first, then talk to witnesses. That often leads to having to go back to square one and talk to the two involved parties again. But you do that, you know, because you're going to learn more from the witnesses. That's kind of sends you back to the beginning. And then, um, you take good notes. Of course, I, I don't use the AI note takers, but I suppose those would be okay, you know, or even a recording some people use for. Tom has used recordings before to assist. Yeah.

Speaker A: With.

Speaker C: Yes, with consent.

Speaker A: I would say, pete, I'm about to record this. Would you. Do you agree with that? And you nod yes or say yes, then I can rely on that.

Speaker B: Okay. Okay.

Speaker C: And then the end result, of course, uh, now just back to the most basic thing is you're a fact finder. You're not trying to make a case for the employer or anybody involved. Right. That's. And they really do have to kind of keep the blinders on there, even if you've kind of reached your own conclusions as you go along. Keep an open mind all the way through anything.

Speaker B: Sarah, that, that is the, that is the, the gem of this conversation, right, Is to remind people that you're not building a case, you're just finding facts. Right? Because you're not an attorney, you're not an investigator or, um, you know, officer of the court.

Speaker A: That may be where it ends up. So back to your other point though. But oftentimes HR makes a mistake, waits too long to act, does this, uh, may not be hr, Maybe a supervisor lets the issue fester longer than it should. They got a complaint, but they really, they never acted on it. They never took steps to correct it early on. So that could be a problem. Failing to handle whatever comes in seriously is, uh, not giving someone. Go ahead, sir.

Speaker C: Uh, and thinking of the case we had here in the Boston area, the car dealership, right? Pretty severe sexual harassment. And it was reported to hr and it was generally, everybody knew it was going on. It sounds like, you know, this, this. And then the woman filed a claim they ended up in court and the, the company was assessed half a million dollars in punitive damages based on mistakes in the investigation. First they, nobody went to investigate. The supervisor had an obligation to initiate that, you know, reach out to hr. He or she knew what was going on, didn't do so. And then even during the investigation, they really didn't conduct a thorough investigation, didn't talk to parties that the, the compl really would like that supported her. You know, she had brought them in and um, didn't even documentation things like that. So it was, that was a half million dollars it cost them for not conducting a timely and effective investigation.

Speaker B: I want to change gears just a bit. Related vector on this idea of retaliation concerns. What are the practical concerns of retaliation after investigations end? Um, what is your experience in practice of what this actually looks like?

Speaker A: The anti discrimin agency in Massachusetts emphasized that retaliation is the number one issue that they see. You know, a good example. A case will come in on sexual harassment and the company will win. They'll prevail and they'll show it wasn't harassment. But then they'll do something to make the employee's life difficult at work, cut them out of meeting, demote them, change their hours, deny them overtime, whatever. And all of a sudden now there's a retaliation claim. And it's uh, on the federal level as well with the EEOC. More than 50% of all cases at the federal level have some element of retaliation to it. And oftentimes the company walked right into that because they weren't paying attention or the manager's angry that he or she was named in a lawsuit and they're not going to get back because the employee won. They're not going to get back and get that person who's back at the workplace. And so the, a potential for being a disaster for the company even if,

Speaker C: even if it turns out, as in the example you gave Tom, that the, the discrimination or harassment claim was without merit, you know, it couldn't be proved, doesn't mean it's without merit. But it couldn't actually be proved. Maybe the company thinks it's on solid ground. Well, we can do what we want. Right? But that retaliation that looms over it regardless because that is a protected right to bring the complaint in the first place.

Speaker B: Wow. All right. Um, we've uh, got a question in the chat room. Leads to another one more question that I have. Question the chat room. Is recording convers without consent legal in Massachusetts?

Speaker C: No, it's a two party consent state. So you have to have consent of both parties.

Speaker A: I think that we're in the really 10 or 12 states in the country. We have to have both parties consent. Some states don't single party consent, but we are too.

Speaker B: Okay, so take care of that. It does lead to my last question here, which is, um, you know, I mean we're. Are we allowed to have a conversation anymore without bringing up AI? I don't know. Uh, our employees are recording conversations on their phones sometimes without two party consent. And herr teams are, as you said, Sarah, are using AI note takers in interviews. How do you see this sort of technology changing the documentation game for better or for worse? Your thoughts?

Speaker C: Yeah, I can see that that could be. Um, actually there was a case in Boston, do you remember that, Tom, where it ended up that the one employee had recorded another one berating him or her. I can't remember. Right. And that ended up being admissible in court. And I can't remember the nature of the case, but in general that would not be allowed. A mess. Because it was secret recording too. But it did somehow get admitted as part of the case. Um, I think, you know, companies policies can address a lot of that. And I do see more and more policies about restricting use of cameras, using use of recording. Just don't do it. It is not allowed here or with. Not allowed without approval of your manager, that sort of thing. So I think it's a good idea to have policies that do address that because, um, otherwise everybody will be running around recording each other.

Speaker A: I mean, one other thing to worry about maybe up front is to say, okay, everyone, telephones are out on the table. Nobody can record this. This is a confidential internal investigation being run by the company. Therefore no one may record it. And to at least put that as a prefatory remark out there, I hope that it makes a difference.

Speaker B: Okay, uh, I'll tell you what. Um, this is. It's one of those things because the technology is becoming so invisible. Little AI fobs and things recording all the time. Uh, as Stacy's, uh, commenting in the chat room right now, now you have meta glasses that record. Yes, they. And they record sometimes with a little notification light, but that notification light is sometimes hard to see. And uh, so it is important I think from a policy standpoint, just from a training and development standpoint, to let people know what is and could be recording at any time. I can start a recording on my watch completely invisibly at this point and no one would know.

Speaker A: Uh, you see it on your phones nowadays too, of course. You make a call and then tap the button recording the call.

Speaker B: Right, right. Uh, so, uh, important awareness. And it is a segue to next month's recording. A bit of housekeeping. We are going to have Terry Cook and Kyle Pardo back with us and we're talking about A.I. uh, we have some, you know, specific questions that are going to be built around this, but we want to make sure to give you a plug if you're listen today, mark your calendars, uh, and be on the lookout for those notifications for next month. M. And it is, um. Oh, gosh. See, now that I brought it up, I should probably have the exact date of that event. It is going to be on July 14th. July 14th. Uh, our luncheon, uh, webinar on AI with Kyle and Terry. It's going to be great. We love having this conversation. It's only getting more interesting as the days go by. Uh, conversations about AI so please, please, please check that out before we jump out of here. Remember, AIM HR Solutions is here to support employers with just about anything HR related. Whether you need expert guidance or employee training or recruiting support or handbook review. If you fancy up a new policy around cameras and recording, we can help you review it and make sure that policy is sound. Maybe you just need an extra hand with your HR function. Our entire team is here to help. Of course, when your questions can't wait, AIM members have access to our AIM HR helpline where they can call or email experienced HR professionals Monday through Friday. For practical guidance and real world answers, visit aimhrsolutions.com or email hrinfoimhrsolutions.com and, uh, you will find us. We'd be happy to help. Uh, Sarah, Tom, thank you. As always, thank you so much for being here and lending your expertise to the forum. It's very good to see you all and, um, good luck on the phones.

Speaker A: Thanks, Pete. All right, good to see you all.

Speaker B: Thank you everybody for being a part of this. We're going to hang up the live stream and we hope, uh, you enjoy your lunches. Back to work, everybody. Sam.

Speaker A: M.