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Many HR pros are surprised to learn that legal protection from retaliation isn’t always guaranteed for them.
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It is common for legal complaints, both internal and external, not to result in adverse actions against the accused. Of 75,768 charge receipts filed for all statutes enforced by the U.S. Equal Employment Opportunity Commission (EEOC) in 2006, the commission found no reasonable cause for 45,500—61 percent of the cases. Of the 12,000 sexual harassment cases filed, EEOC personnel concluded that 47.5 percent contained unsupported allegations. The percentage of unsupported claims has climbed 17 percent since 1995.
Reporting back to those involved after an investigation—whether by the EEOC or by the company’s HR professionals—constitutes one of the employer’s most important tasks. Failing to do so has become one of the most common mistakes.
Opportunities for Improvement
Failing to act on the knowledge gained by an extensive investigation wastes time and resources, says Patti Perez, SPHR, employment lawyer, HR consultant and president of San Diego-based Puente Consulting.
Nancy Glube, a member of the Society for Human Resource Management (SHRM) Employee Relations Special Expertise Panel, says that normally if allegations require a formal internal or external investigation, some type of action should be taken at the conclusion. “Where there’s smoke, generally there’s fire,” says Glube, executive director of HR at a telecommunications company. Actions need not be as serious as termination or even discipline, she adds; they can include coaching, procedure changes or improvements in complaint mechanisms.
Paul Gibson, CHRP, SPHR, GPHR, vice president of Ontario-based Mattamy Homes, and another member of SHRM’s Employee Relations Special Expertise Panel, says that throughout his HR career in various industries, all investigations have ended in some type of action, whether termination, discipline, warning, training, coaching or a serious discussion. “I’ve never had to initiate an investigation and found it to be completely unfounded,” says Gibson, although in some instances he has been able to resolve misunderstandings informally.
If everyone in a group or a department already knows that an investigation has been conducted, managers might consider holding an all-hands meeting. “There are many situations where an investigation can be discussed in a way that confidential information isn’t disclosed,” Perez said.
A Chance for Redemption
If the facts that emerge from an investigation have effectively ended the accused person’s career, Gibson says, “you should terminate. Having the living dead walk among us is no good.” But if the transgression doesn’t rise to that level of seriousness, he says, it’s important to give the accused a chance at redemption. “People who come under investigation will often leave,” Gibson says. “There’s a shame element. The reality is that you are losing talent.” An accused employee’s departure is an unnecessary loss of talent if the business regards the employee as valuable and views the transgression as “nothing more than modest failure of judgment or even youthful indiscretion,” he says.
If legal action or termination isn’t warranted, Gibson says, the employer should make it clear that it is willing to give employees a second chance. “If you don’t show people that there is an honorable side to the end of any of these things, they will assume the worst,” he says. “They’ll assume that they are blackballed and [will] leave.”
It’s up to the HR manager and the employee’s manager to make it clear to the employee that the transgression doesn’t have to end the employee’s career and that the incident will not be held against the person.
Gibson recalls an investigation of a ring of men and women exchanging Internet pornography and tasteless jokes. Two employees were terminated; others had exhibited poor judgment but hadn’t breached rules to an extent that warranted termination.
Gibson says that after the investigation, he met with the employees’ managers, asking them if they could accept the employees’ breaches of protocol but not penalize them in other areas of their work. If managers would be unwilling to later promote the employees, for example, Gibson wanted to hear about it.
The managers agreed not to unduly penalize the employees, and Gibson spoke with each employee individually to tell them that the incident would not be catastrophic for their careers. “Even if you have made a poor judgment,” Gibson says, “the way you handle it can redeem you.”
Keep the Channels Clear
When an investigation is over and fresh in everyone’s memory, it can be useful to look back and see if the complaint process proved to be clear and well communicated. In a decision last November, a federal appellate court in Chicago ruled that a restaurant chain’s harassment-complaint procedure was ineffective because it was not written in a way that could be easily understood by teenage workers, who made up most of the employer’s workforce.
If a company doesn’t create an atmosphere that allows employees to feel comfortable coming forward with a complaint, they will often go outside the company. An external investigation involves extensive expenses and resources. “We are a very litigious society, so people like to be heard,” Glube says.
Tips for Getting Back on Track
Consultant and trainer Wendy Bliss, SPHR, co-author of Employment Termination Source Book (SHRM, 2006), says post-investigation legal and emotional land mines can be avoided with some common sense steps that—if carried out correctly—can actually result in an improvement in employee morale and productivity.
Here are practical tips from Bliss for making it happen:
Elizabeth Agnvall is a freelance business writer in Washington, D.C.
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