Putting the Humanity in HR Compliance: Call It an ‘Assessment,’ Not an ‘Investigation’

Jathan Janove, J.D. By Jathan Janove, J.D. October 26, 2018
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Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.   

It's Monday morning. There's a knock at your door. 

"I have a complaint to make," the employee says. She shares facts that indicate a potential harassment, bullying and retaliation problem. 

As an experienced, conscientious HR professional, you launch an investigation. But what if you called it an "assessment" instead of an "investigation"? Mere semantics? 

I don't think so. 

When engaged as an executive coach or consultant, I interview people, review documents and analyze the facts. Sounds like an investigation, doesn't it? But I never call this work an investigation. Rather, it's an assessment. 

What's the difference between an investigation and an assessment? 

When wearing the investigator hat, you act like a judge. You adjudicate the facts with findings and conclusions. It's a left-brain endeavor rooted in hierarchy, judgment of others and, potentially, punishment. 

When you wear the assessment hat, there is still a left-brain component, but the goal is to intervene, not to judge. This leads to coming up with and implementing solutions. 

This may seem a fine distinction, but in practice, it is a fundamental difference. The paradigm through which you approach a workplace problem influences the outcome, not simply or even primarily from a legal-protection standpoint but from an organizational-health standpoint. 

"In HR, we're not here to police the workplace. We're here to solve problems, help others and create a great place to work. That's the approach to take when complaints arise," said Paul A. Jones, chief leadership development officer at USANA Health Sciences Inc. 

The 7-Point Assessment Checklist 

In The Checklist Manifesto: How to Get Things Right (Picador, 2011), Atul Gawande shares research showing that the most effective way to prevent costly mistakes is to develop checklists that work backward from prior failures, identifying the things most likely to go wrong. 

Inspired by Gawande's book, I developed a seven-point checklist on conducting effective assessments. 

1. Presume to act. When workplace problems don't get solved, the most likely cause is failure to take timely action. 

Assessments can be challenging, time-consuming affairs. When you're already loaded with work, it's easy to rationalize avoidance. In my experience, avoidance means the problem festers and becomes much more difficult to deal with. 

"Effective HR is proactive, not reactive. The best time to deal with a problem is the earliest time," said Tracy Stachniak, SHRM-SCP, director of HR and training and development for Toyota Material Handling U.S.A. Inc. 

In short, avoid avoidance. 

2. Get your ducks in a row. A common mistake is to launch into the assessment process without having developed a plan of action. You need to ask yourself:

  • What are the issues?
  • Who may have knowledge of the relevant facts?
  • What documents should be reviewed?
  • What sequence of steps should be followed?
  • What's the "end in mind"? 

Within the last question are three components: 

  1. Determining the probable truth.
  2. Ensuring that the process is fair to all stakeholders.
  3. Arriving at a result that is legally compliant and organizationally sound. 

3. Protect the people and the process. During the assessment process, many things can go wrong. Information could be leaked. People could be threatened or intimidated. Documents could disappear. 

Accordingly, it behooves you to discuss confidentiality, cooperation and non-retaliation. Also, keep your antenna up for any signals of interference in the assessment process. 

4. Conduct thorough interviews. When interviewing people, I recommend using an "EAP": 

  • Explore the other person's knowledge, recollection and views with open-ended questions.
  • Have the person acknowledge that you have accurately captured what he or she has shared.
  • Pinpoint potentially critical details, such as specific key actions or words. 

Use follow-up questions to make sure you're getting the full picture. 

5. Avoid delays or cutting corners. Once you've finished your assessment, you may be tempted to take a break or shift to the work that piled up during the time-consuming assessment process. 

Delay creates the danger that an otherwise sound assessment will be undermined by subsequent events. Once you have the information you need, complete and communicate your assessment as soon as possible. 

Also, beware of confirmation bias, which is the tendency to misinterpret or ignore evidence contrary to our preferences. When you think you have the answers, it's useful to challenge them. Be your own devil's advocate. 

6. Communicate sound, supportable assessments and recommendations. Effectively completing an assessment means you've done the following: 

  • Determined disputed facts based on evidence, not subjective credibility.
  • Reached a conclusion that isn't based on general characterizations or legalisms such as "harassment" or "retaliation." Rather, the conclusion is focused on the behavior, its impact, and the relevant organization policies and values.
  • Used a solution-oriented approach instead of a judgment- or punishment-oriented approach to corrective action. What intervention is most likely to solve the problem and prevent its recurrence?
  • Communicated directly and in-person with the key stakeholders. Follow up with Same Day Summaries

7. Conduct a post-intervention checkup. Thinking of your work as a solution-oriented assessment, not a judgment-based investigation, will ensure you execute this step. Even after you've collected your findings, developed conclusions and implemented corrective action, your work isn't over. It's complete only when the work environment has returned to health. 

Questions to ask to determine if the workplace has improved:

  • Has the solution been properly implemented?
  • Have the key stakeholders been reintegrated into the work environment?
  • Are there any unintended negative consequences?
  • What can we learn from this situation that will help prevent similar problems or otherwise improve our organization?
  • Have I set dates for future checkups and check-ins? 

HR professionals: Use this checklist to help you, your employer and your employees prosper.

Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to JathanJanove@comcast.net.

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