Jul 2, 2020
Benefits of Outsourcing Workplace Investigations
No organization, no matter how well run, is immune to employee workplace complaints. Whether you employ fewer than 50 employees or manage thousands, some form of complaint will inevitably be filed against your organization or one or more of its members. In our wide experience, which spans for-profit and nonprofit organizations, including colleges, universities, churches and ministries, we have witnessed complaints filed in a variety of areas, including:
- Discrimination (e.g., gender, disability, religion, race, age)
- Harassment (sexual and nonsexual)
- Bullying
- Theft or other ethical impropriety
- Violations of the Americans with Disabilities Act
- FMLA and medical-related leave issues
- Reprisals against whistleblowers
With the potential liability being so high, and the risk of negative publicity, the benefits of using an independent investigator are not to be dismissed: External independent investigators demonstrate and support an organization’s integrity and desire for objectivity, protect the confidentiality of its operations that an internal conflict of interest could otherwise jeopardize, and insulate the employer from claims of retribution toward whistleblowers.
Integrity/objectivity
When an organization outsources an investigation to an independent, external specialist, it demonstrates to its employees that it is intent on doing the right thing: to permit the impartial examination of the events in question, irrespective of the outcome. In contrast, when an investigation is performed internally, such as by a manager employed by the company, it’s understandable that the employee might fear their complaint could cast a shadow over their future at the company, whether consciously or unconsciously, particularly if they have any dealings with that manager. There’s no shortage these days of bad publicity when an organization appears to dismiss or bury a complaint or retaliate against the complainant, whether it’s in public or private companies or within our government.
Avoid conflicts of interest and protect confidentiality
If you’re thinking that you can safely delegate workplace complaints and violations to in-house counsel, we urge you to think again. Should the complainant feel their complaint was not handled impartially or that they’ve been subject to harassment or retribution attempts, you might well find your organization facing a lawsuit. Should it go to trial, the prosecuting attorney will look for any signs of conflict of interest and/or lack of impartiality that suggests the internal investigation was flawed. And you might find your in-house counsel on the stand, testifying to conversations and dealings you assumed would be protected by attorney-client privilege but were forced to waive. An independent investigator, on the other hand, can only testify to what their investigation of the pertinent circumstances revealed.
The experienced investigators used by In His Name HR are independent of your organization, with numerous similar investigations under their belt with findings both for and against employers, further highlighting their impartiality. For example, our investigators refrain from using words like “we” and “us,” making it obvious to both judge and jury that no relationship between them and the organization exists that would tip the investigation in the organization’s favor. Again, an outside investigator does not represent the organization, and their statements are limited only to what they learned in the investigation—nothing else.
Allay employee fears of retribution
in our experience, most human resources managers and other authority figures do not treat employees differently when concerns are aired about the organization, or even about individual managers. Still, it’s understandable that such an employee might have concerns or fears that raising an issue might negatively impact their career path or even result in retribution. For example, a complainant who has been passed over for promotion months after they filed a complaint might see things differently.
We have spoken to employees who participated in internal investigations who said that the internal investigator now “sees me as a problem, or a complainer.” Most internal investigators are trained and prepared for this. However, whether real or perceived, it is an issue. Even if the internal investigator can separate what was said in the complaint and operate objectively going forward, participants may likely never be convinced that the internal investigator can “unhear” what was said and not be influenced by it.
When you use an outside investigator, however, those concerns are allayed. A third-party investigator can conduct a full, independent investigation while the organization and employees carry on the business at hand without employees fearing future effects.
The bottom line
Is this a cause for concern? It should be. We work in difficult times, under increased scrutiny. Complaints are on the rise—sometimes daily. HR departments are overburdened. With the news escalating in the media surrounding harassment, discrimination, and hostile work environments, employee complaints have now reached record levels.
Let us allay your concerns. Reach out to us to discuss having a trusted partner to guide you and your team in the event a complaint arises.
Contact us today. You—and your employees—will be glad you did.
In His Name HR helps organizations build high-performance human resource programs. Visit them at In HIS Name HR or e-mail them here.
Mark A. Griffin is the founder and chief consultant of In His Name HR LLC. Connect with him on LinkedIn and Twitter.
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Mark A. Griffin | Blog, Christian Higher Ed HR, Human Resources
Oct 29, 2019
It’s almost impossible to open a news website without seeing a headline regarding sexual harassment or sexual assault in the workplace.
Matt Lauer, Harvey Weinstein… They represent organizations that have just gone mad, that have failed to protect their people. The list of organizations and accused persons continues to grow. I find it particularly offensive when I consider how I want my family—both men and women—to be treated in the workplace. I am dismayed to discover the extent to which organizations are failing to protect their employees from predatory and exploitative behavior.
Those of us who are Christian professionals in the workplace have an obligation to not only live by the law but also demonstrate behavior that is biblical, and not a reflection of the current aberrant culture. We must ensure that all we do, and all the policies we institute and the responses we make to issues are above reproach.
I am in no way claiming that Christian organizations are perfect. Some have also failed (some, spectacularly) in this area. This is not just a Hollywood or industry-specific issue; it is a moral issue, a sin that knows no bounds. The Christian community has had its own share of scandals. Church leaders have failed us, and international mission leaders have failed us as well.
At In HIS name HR, we serve organizations across all professional sectors. We have served for-profit and nonprofit enterprises, higher education institutions, including Christian higher education institutions, churches, and ministries. One thing is for certain, when you get two or more people together, issues and conflicts inevitably arise—at the very least, innocent misunderstandings—which, when not handled well, can lead to complete pandemonium.
The Three-Prong Approach
What should organizations do to protect their employees from harassment? We at In HIS Name HR believe that it is far easier to do than most realize. We suggest a three-prong approach:
Policy
Have a good policy in place that is easy to understand by both employees and managers. Have it embedded into your employee handbook and ensure everyone has signed for it. We promote having only a handbook. Most organizations can cover every topic in one handbook without adding additional policies. Having additional polices creates confusion, especially when you have to update multiple documents in multiple locations.
A best practice is to have the handbook online with a date embedded in the footer and have all employees in an employee meeting sign a receipt that they have been informed of the version and location. Then follow up in an email with a link to the handbook and a return receipt memorializing the fact that the employee has received the updated version.
Training
Training should include awareness for all employees, and awareness, detection, and prevention for leadership. Employees need to know what is and is not acceptable in the workplace. For instance, there are two separate types of sexual harassment in the workplace under Title VII of the Civil Rights Act of 1964: a hostile work environment and quid pro quo.
A hostile workplace is just that: a workplace that is hostile and what the average or “reasonable person” would deem inappropriate. The complexity derives from the interpretation of an offense—what is offensive to one person might be considered the norm by another person. What good training does is help both the offended and the offender navigate how to abate a situation that risks elevating to explosive.
The second type of harassment, quid pro quo, derives its name from the Latin expression meaning “this for that,” doing a favor for a favor, as it were, where something is given in exchange for something else. In its most negative connotation, in terms of harassment, it is used when a person in a position of authority exploits their power to pressure or manipulate a subordinate to submit to behavior or activity, typically sexual in nature, which either promises a favorable outcome or threatens them with repercussions. Such favors include promotion, pay increases or bonuses, while threats may be made to compromise employment, reputation, or future opportunities. Both employees and leadership must be able to recognize the signs of such quid pro quo, and have sufficient ability or recourse to safely put a stop to it.
One aspect of the training is to “be real,” to let everyone know that certain behaviors are not acceptable, whether in the workplace or anyplace. Let them know that they should not do it, tolerate it, or ignore it, and they should personally help make the workplace an environment we would want all the people we love to work in.
Response
When a complaint is raised, it must always be taken seriously. One aspect we have built into the complaint approach is to formally let the complainant know that we take their complaint very seriously, and that it will be thoroughly investigated immediately.
“People are denying the reality that most women grow up and live their lives being harassed, if not assaulted, and being propositioned or being pursued inappropriately,” Liberty University English professor Karen Swallow Prior says. “Almost every woman I know, including myself, has had something like that happen to them. This is just the world we grow up in.”
We must honor and trust all complaints that are brought forward, while explaining that if the complaint is found to be untruthful, the accuser may be subject to discipline up to and including separation. This might seem harsh, however, it is important that the accused be equally protected before and during the investigative phase. I have led more than one investigation where the person who was accused was able to provide evidence to prove their innocence. In this instance, “Innocent until proven guilty” applies to both parties, the accuser and the accused, and both are entitled to fair and confidential treatment during the investigation.
The investigation itself should be swift, and conducted by trained professionals. The best practice, if the investigation is performed internally, is to ensure the person investigating has no reporting relationships with anyone involved in the compliant. Ensure copious notes are taken and the privacy of all involved is protected. This is paramount to prevent anyone who is accused or involved from filing charges against the organization for false accusations.
The best way to list the contact for complaints is to employ consistency by supplying![]()
a title versus a name. You should, however, make sure there are two ways for people to bring forward an issue—have both a female and a male as points of contact. This helps any complainant to feel more comfortable bringing the issue forward. Oftentimes, the person who feels harassed prefers to talk with a like-gendered person.
Finally, if your organization is small, consider hiring a third party to operate as the point of contact. Our firm offers this to its clients, which gives their employees increased confidence, knowing their issue will be dealt with swiftly and objectively by a third party.
In His Name HR helps organizations build high-performance human resource programs. Visit them at In HIS Name HR or e-mail them here.
Mark A. Griffin is the founder and chief consultant of In His Name HR LLC. Connect with him on LinkedIn and Twitter.
If you are a smaller organization and need tools for HR success, checkout our HR Mastery Toolkit.
Mark A. Griffin | Blog, Christian Higher Ed HR, Human Resources
