Nina is an employee relations manager in a hospital, and she's faced with a dilemma: A group of employees from one department has come forward to file a complaint against their director for being rude, crass and confrontational. Nina is aware of this director's problematic reputation, as are other members of the hospital's leadership team, and she sees this as an opportunity to partner with senior leadership to fix the problem once and for all. However, the employees who complained want to remain anonymous, fearing retaliation, or else they will not move forward. How does Nina protect their privacy while using their complaint to address the director's conduct?
"Many employers are reluctant to add witnesses' names to a written warning or final written warning to justify the disciplinary measures they're taking," said Henry Farber, chair of the Employment Services Group at Davis Wright Tremaine LLP in Bellevue, Wash. "There's concern about privacy, hurt feelings, resentment and, yes, fear of retaliation, either overt or subtle, which can chill further disclosure of concerns."
But if employers don't provide specific names, the employee being disciplined will likely feel paranoid or misunderstood "I've never treated anyone that way. Who says that I'm coming across as rude, crass and confrontational when dealing with others?" is a likely and predictable response.
The key to resolving this potential quagmire is to name names but not attribute specific quotes to specific people. In particular, this would be easy to handle if, for example, all eight members of an eight-member team come forward. Then HR can inform the subject of the complaint that all eight members of his or her team have complained about the behavior. HR can include the remarks that the employees shared but avoid attributing specific quotes to particular employees.
But what if only five members of an eight-member team come forward? Is sharing their names with the director an appropriate response under the circumstances?
"It could be, but like so much else in the human resources/employee relations world, it depends," Farber said. "If it's obvious who those five employees would have to be, based on the nature of the complaint, then yes—naming names makes sense. But you, as the employer, have the right to simply state that five members of the eight-member team came forward to lodge the following complaints, without naming names if you're concerned that the director may attempt to retaliate."
In documentation format, Nina's (final) written warning might read like these:
"Today all members of your team voluntarily came forward to human resources to file a formal complaint about your behavior and conduct as their leader. Among the issues raised were [list issues here].
"It has been reported that you, as the department head, continue to engage in intimidating behavior by humiliating members of your team publicly. A number of your direct reports stated that it appears to them that you are attempting to intimidate and belittle them, and more than one person whom we interviewed described your actions as 'public shaming sessions' where you sought to 'break' and 'shame' the individual into compliance.
"I met with the following team members who report to you and requested feedback regarding your general leadership and communication style: [list names here]. The general, consistent theme from these individuals is a lack of trust and respect that you demonstrate toward them. Specific comments they state that you have made recently include: [list comments here]."
This example demonstrates that Nina, as the employer, has the discretion to name employees who came forward to complain. She likewise has the right not to include any names and to simply generalize her findings instead, so long as she provides the parameters of her investigation in terms of the number and level of individuals interviewed.
Likewise, it's important to document that members of the team stated to her and/or the larger HR department that they fear retaliation for coming forward. Retaliation is a separate and very serious violation in and of itself. Nina should include a sentence such as the following in her disciplinary warning:
"Further, the fact that multiple members of your team volunteered that they fear retaliation for coming forward with a good-faith complaint about your leadership and communication style underscores a lack of trust in you as their leader, which is a separate and equally concerning problem regarding your leadership of the team."
When Documentation Can Hurt You
"Be careful, however," cautioned Farber, "not to overgeneralize or create a record that demonstrates that you may have jumped to conclusions without having given the individual enough information to defend himself."
For example, generalizations such as "everyone feels uncomfortable working with you when you're in a bad mood" or "no one enjoys working with you when you're angry, and you're angry often" will likely leave the director feeling confused, paranoid and ganged-up on. Absolutes like "everyone" and "no one" will often come across as exaggerations, especially on paper, and will rarely be defensible should the matter proceed to litigation.
Therefore, to avoid overgeneralizing, Nina could draft her corrective action in one of these ways:
"A number of the individuals HR interviewed stated that they feel uncomfortable working with you at times when you appear to be angry."
"Individuals whom HR interviewed stated that you appear to be angry often, which makes them feel like they have to walk on eggshells around you."
"You have every right to document your concerns regarding the individual's mood swings or apparent anger management issues," Farber said. "Documenting how those directly impacted experience the effects of such behavior is key to fair and consistent progressive disciplinary documentation."
Set Expectations Appropriately
Nina should tell the employees who complained that she will be listing their names when communicating with the director. Yes, this may initially raise fears of confrontation and retaliation, but employees will likely feel more comfortable about it if she communicates expectations as follows:
"Everyone, I called this meeting with you and Denise, John's boss, because we need you to know as a group that we'll be using your names in bringing this matter to John's attention. We need to tell him whom we've met with and what the overall feedback was in order for him to understand the gravity of the situation. However, we won't be attributing any specific quotes or statements to any of you—we'll only provide information regarding the feedback we've received and the people who were interviewed.
"Plus, Denise is here to ensure that no retaliation of any kind results from this good-faith investigation. Further, we'll set expectations with John very clearly that he's not to conduct any investigations on his own as to who said what about whom during this process, and I'm instructing you to inform me as the HR manager, or Denise as the department head, if you sense that any such investigations are going on. We'll explain to John that any actions on his part that could appear to be retaliatory in nature could result in serious discipline in its own right.
"Finally, we're going to instruct him to keep managing and directing his team and not to avoid anyone or any issues that could negatively impact performance. Our expectations of John will focus on him managing as normal and holding everyone accountable to high performance standards without engaging in any conduct that could appear to be retaliatory in nature. What questions do you have about our intended approach?"
With a forward-looking action plan that is transparent and honest and that sets expectations all around, trust can be restored. The critical elements are that Nina's written corrective action to John is clear and uncontestable in its intent, that the employees understand that she handled the matter responsibly and set expectations for them as well, and that HR's partnership with John's leader will remain tight and keep things on target and in order. It's a no-nonsense approach to a serious matter that can be resolved with minimal drama and angst, while maintaining everyone's self-respect and allowing the healing to begin.
Paul Falcone (www.PaulFalconeHR.com) is an HR trainer/speaker/executive coach and has held senior HR roles with Paramount Pictures, Nickelodeon and Time Warner. His newest book, 75 Ways for Managers to Hire, Develop, and Keep Great Employees (Amacom, 2016), focuses on aligning front-line leadership teams and on key employee retention. A longtime contributor to HR Magazine, he's also the author of a number of SHRM best-sellers, including 96 Great Interview Questions to Ask Before You Hire, 101 Tough Conversations to Have with Employees, 101 Sample Write-Ups for Documenting Employee Performance Problems and 2600 Phrases for Effective Performance Reviews.
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