You have just concluded a very messy investigation at a small, satellite office at which 20 of your employees work. The information you gathered indicated that after starting off with drinking at 4 p.m., the office holiday party soon spun out of control, leading to sexy dancing and sexual encounters among many of the attendees, including a manager. You conclude that the manager should be terminated and several other people should be disciplined, and you communicate as much to the office manager. And that’s that, right?
While it would make life easier if that was the end of the story, we all know that in reality our most difficult work is far from over. An often neglected but always relevant topic for human resource professionals is handling the myriad issues that arise after an investigation is concluded. Among these issues are implementing discipline productively, handling bureaucracy and internal politics, dealing with emotional employees, maintaining confidentiality, avoiding retaliation and boosting employee morale so that the employees can collect themselves and refocus on work.
Too many cooks
It is not uncommon for everyone who is even arguably involved in the matter to want a say as to the outcome. It can be frustrating when other managers want to be involved in deciding on and/or implementing discipline that, as far as you are concerned, should already be a done deal. The desire by others to be involved in or privy to the investigative process and reasons behind a disciplinary decision, and to weigh in as to the appropriate remedial action, can cause lengthy delays that are not just aggravating to you but upsetting to the parties and even the rest of the work group. These intrusions often undermine the efficacy and finality of the remedial action. The likelihood of this happening can be minimized by establishing, before an investigation or crisis in pending, what the process will look like. Ideally, the internal process should involve an investigative team that makes a recommendation that is reviewed and approved by a single person.
Similarly, the decision-making process related to individual discipline itself can be extensive if it relies on a complicated internal bureaucracy. Bureaucracy can also impede more global remedial efforts, like changing policy or instituting training. For example, you may have found that preventative efforts are lacking, so you start the ball rolling on selecting and approving such measures, when suddenly there is another complaint, and preventative efforts have yet to be implemented. In addition to the fact that you still lack an effective legal defense to harassment, the work force might well be upset that these efforts have not yet been finalized. Those in the field know that it is not unrealistic to expect a lag time of six months before a change in policy is implemented. Considering that the EEOC has been known to direct employers to get their preventative efforts in order within 90 days, employers are well-advised to streamline the process. And again, establishing this process and acceptance of it before an investigation is optimal. An added benefit to figuring out what the process will look like ahead of time is that after an investigation, decisive action will promptly be taken, a message that will not be lost on the workforce and can only aid in putting the whole ordeal behind everyone.
Another hurdle can be obtaining “buy in” for the necessary remedial action from those responsible for enforcing it. Managers can be tirelessly loyal to their subordinates and stubborn about instituting discipline they view as unfair or unnecessary. How should you address resistance on the part of the superior of the alleged wrongdoer, who thinks that their subordinate was “railroaded?” It is helpful to plan on such resistance and secure commitment and cooperation up front. In addition, you will need to be vigilant about preventing retaliation under such circumstances.
Many employees—from those actually involved in the investigation to those who have just heard about it—will likely feel and express strong emotions about the allegations and outcome of an investigation. Expect the accuser to be unhappy with the outcome if his or her accusations are found to be without merit, and the accused to be reeling from the allegations no matter what the outcome. Further, even where a violation of the organization’s policy is found, the accuser is often unsatisfied with the recommended remedial action, or their lack of knowledge about it, unless it is anything less than instant dismissal (and even sometimes when it is). Other employees who have been interviewed as a part of or are otherwise aware of an investigation also will have strong feelings about the substance and/or outcome of the investigation. HR representatives tend to be the target for all employees issues, and an internal investigation of sexual harassment or of a similarly serious nature will spur many inquiries and even outbursts that need to be managed. How do you deal with all of these issues and preempt further problems? Some employees may need to be referred to your EAP, while others may simply need to be handled with tact and diplomacy. Each situation is unique, but sending a strong message to the relevant workforce that the matter has been appropriately handled is critical to alleviating related tensions.
Let’s face it, employees like to gossip, and what better subject than sordid allegations of sexual or other harassment? The best way to preempt confidentiality violations is to meet them head on, by holding a meeting as soon as the investigation is concluded, to communicate that there have been issues in the workplace, these have been appropriately resolved, and everyone is expected to respect the privacy of others and observe the employer’s confidentiality policy by not discussing it with anyone. It should be made clear that while the organization wants to know about any other violations of policy and/or retaliation, those breaching confidentiality will be disciplined accordingly. Handle individual inquiries about the outcome forcefully. Responding to the inquiries with something along the lines of, “I can’t talk about the circumstances of anyone’s voluntary or involuntary departure out of privacy considerations, and I am sure you would appreciate the same courtesy” is often successful.
Unfortunately, human nature seems to dictate acting out against those who assert their rights. The recent Supreme Court decision in Burlington Northern and Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006), again acknowledges that retaliation is a legitimate fear for accusers and a real problem for those attempting to run an organization in the wake of an emotional and serious investigation. A strong anti-retaliation policy that is well communicated and supported by management is the best way to prevent retaliation.
You should expect employee morale to suffer in the wake of an investigation into employee misconduct, especially if it involves allegations of harassment. What do you do about it? The best, immediate answer is to try and get the workforce back to work. The sooner everyone is refocusing on business as usual, the less time there is to contemplate and fret about the allegations and investigation. If you are lucky, the frenzy will die down with time. Sometimes however, it may be necessary to do some small group team building. Whatever the case, it will only cause more problems in the future if the white elephant is left unaddressed. Again, holding a general meeting in which you communicate the outcome of your investigation, without going into specifics, can help set the stage for moving forward productively.
Let’s return to your satellite office where a manager has been terminated and several employees disciplined. In a perfect world, an appropriate internal process would have been set up ahead of time. For instance, after receiving the complaints, but before your investigation began, you met with the office manager to obtain her buy-in on how, if the allegations are true, your organization will deal with the employees found violating your policies. The office manager now feels informed and part of the process; therefore, she is willing to support you by communicating to her workforce that there were issues at the party that will not occur again and that the investigation is completed. She is also much more likely to support the organization’s efforts to institute preventative efforts. If no relevant policies are in place, you will meet with the Executive Committee (or other relevant entity) to establish, going forward, a process that will eliminate, or at least, minimize, the tensions and roadblocks you encountered absent any recognized process. By a little forward thinking and planning, you have successfully minimized the inherent upheaval of the investigation and focused your workplace on more productive behavior.