Investigations are tricky, and state law conflicts don’t make the situation any clearer. Here’s more on investigations and an introduction to the famed BLR “Red Book” that many HR managers rely on day in and day out to understand both federal and state employment law.
Yesterday’s Advisor offered “6 killer mistakes” that attorney Jonathan Segal says companies make when conducting EEO discrimination and harassment investigations. Here are 4 tips Segal offers for staying out of hot water when you investigate misconduct.
–Make “appropriateness ” conclusions, not “legal” conclusions. When stating your conclusions after an investigation, avoid legal terms, Segal says. Focus on inappropriateness, not unlawfulness. For example, don’t say “he harassed her” or “she discriminated against him.” (That tends to guarantee the success of your employee’s lawsuit.) Instead, focus on what made the behavior in question inappropriate.
–Deal carefully when complaints lack merit. If you decide that a complaint lacks merit, take time to explain your findings to the complainant. Provide assurances that there will be no retaliation for coming forward, and follow up at regular intervals to see if he or she still perceives a problem.
To the person wrongly accused, say, “It’s important that employees be able to make complaints without fear of reprisal, so, even though it’s natural to want to react when someone accuses you falsely, we’re asking you to rise above it and treat the complainant as if nothing happened.” Explain that, although the complaint had no merit, retaliation would still be actionable.
–Brief people who want to apologize. Often accused parties want to apologize, which seems simple, but it’s not, says Segal. You can permit it, but you need to script the apology. Otherwise, your accused manager will come up with something like “I’m sorry that you are so sensitive.”
That line is going to send people back to their lawyer’s office, he says. Script something like: “I understand that my actions made you uncomfortable. While it was not my intent, I apologize and it will not happen again.”
–Deal firmly with witnesses who won’t cooperate. If witnesses refuse to cooperate or say, “I don’t want to get involved,” how should you respond? Segal explains that while you may technically be able to discipline or fire someone for not participating in an investigation, he doesn’t recommend it.
First, ask the person nicely, then less nicely. Remind the person that it is critical that they participate for the organization to maintain its standards.
You can also appeal to people’s self interest, says Segal. First, let them know that they are involved already—the question is what role they want to play—cooperative witness helping the company uphold its standards, or someone who maybe has something to hide.
If they still won’t cooperate, ask them to take some time and think about it. Remind them that it’s not just a legal imperative, it’s a moral value for the organization. They will usually come around, Segal says.
State Law Adds Complexity … If You Can Find It!
Investigations, harassment, discrimination, retaliation, and witnesses who won’t talk—the challenges seem endless. And most are a double-edged sword: Although we tend to think in terms of federal law, there’s often a state law controlling employment matters lurking in the background, often conflicting with the federal.
More than 20,000 companies keep up with state law differences from the federal with BLR’s famous What to Do About Personnel Problems in [Your State] program. Choose the exact edition for your state, or D.C. Try it at no cost or risk! Click for details.
Unless you’re a research superstar, you might not know all you should about these laws. Unlike the federal government, which puts all new regulations into the Federal Register, states publicize them in obscure journals not widely available. Yet officials still expect you to comply.
Fortunately, tools are available to keep up with state laws. One of the best is the famous “HR Red Book®” series from BLR, officially named What to Do About Personnel Problems in [Your State]. There are separate editions for almost every state, plus the District of Columbia, and you receive the exact version for your state.
This program has kept employers apprised of state law and its differences from the federal for more than 2 decades and is used by more than 20,000 companies. Here are some reasons they tell us they like it:
–Presents and Compares Both Federal and State Law on 200 Employment Topics. (Click the Table of Contents link below to see the full list.) For each topic, there’s first a plain-English explanation of what you need to do for federal compliance. Then, right next to the federal, there’s an explanation of what your state requires.
–Topics Alphabetically Arranged. Pick today’s HR challenge, from “Affirmative Action” to “Workers’ Compensation,” and it’s easily found.
–Updates Included. Subscribers get six updates a year, sent in convenient replacement pages. And each month you get two newsletters: one national, one for your state. No separate cost for any of this.
6 updates a year are included with your state’s edition of BLR’s What to Do About Personnel Policies in [Your State.] (Others charge extra for updates.) Try the program free. Click for information.
–Compensation and Benefits Reports, presenting what other companies in your state and industry pay for hundreds of jobs. Separate reports for exempt, nonexempt, and benefits are all included.
–Prewritten HR Policies and Forms, ready to print and use.
The entire program costs just $1.52 a working day and can be used free for 30 days. (The links below show samples of the various materials.)
If you’d like to see what 20,000 of your colleagues depend on every day, click one of the order links on this page and we’ll be happy to set up a free trial of your state’s version of the program.
Download national section sample
Download state section sample
Download table of contents
Download newsletter sample