One of the trickiest moments in HR is when your investigation shows that your department is implicated. In today’s Advisor, Denise Kay, Esq., tackles that challenge, and we get a look at a special program just for smaller HR departments.
Kay, who is SPHR certified, is president of Employment Practices Solutions, Inc., in Lakewood, Colorado. Her remarks came at the recent Society for Human Resource Management Legal and Legislative Conference in Washington, DC. For Kay’s tips in yesterday’s Advisor, go here.
What Happens When HR Is Implicated?
You receive a complaint through the business’s toll-free line, Kay says. Dictates from corporate are to manage all expenditures, so you decide to tackle this one personally and internally. Seems like a straightforward complaint regarding wage and hour, so you are sure the documentation will tell the story, and the investigation will be quick and simple.
However, as you gather more information from the complainant, you learn that your boss, the vice president of Human Resources, is implicated, and the allegations involve misclassification of employees, mismanagement of time cards, and possible falsification. What do you do?
Once HR is implicated, you are no longer neutral, Kay says. To preserve impartiality, you must recuse yourself from the investigation. Likely replacements would include:
- In-house attorney
- Outside counsel
- Member of management
- Outside consultant
- Member of the Audit, Risk, or Ethics division of the organization
Skills of a Good Workplace Investigator
Kay suggests that a good investigator should possess the following characteristics:
- Thorough understanding of the law and organization’s policies, procedures, practices, and rules
- Knowledge of sound investigation practices and techniques (licensed, if necessary)
- Knows how to be discreet and maintain confidentiality
- Able to be fair, impartial, and objective
- Willing to consider complainant and accused
- Will make a good witness at trial
Confidentiality is particularly important, says Kay. "I’m surprised," she says, "by how many HR people violate confidentiality. They want to be loved, and they love to have the ‘hot news.’ " HR must be discreet.
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Trend: The Investigator on Trial
Don’t be surprised by the opponents’ attempts to discredit your investigation, says Kay. They will question the:
- Education of the investigator
- Experience of the investigator
- Impartiality of the investigator (The investigator will be grilled about his or her relationship with the parties involved.)
- Documentation (notes, tapes, etc.)
- Scope (Write down why you made your decisions.)
- Witnesses
- Methodology
- Whether the investigation followed organizational policies
- What questions were asked (and not asked)
- What documents were reviewed (and not reviewed)
- Whether confidentiality was maintained
- How the conclusion was reached
What About When Higher-Ups Don’t Want an Investigation?
This is a tough situation, but Kay has a suggestion: "Tell them, ‘OK, no investigation, but let me just do a little fact-finding.’" It works, she says.
Investigations—they’re one of, what, maybe a dozen challenges hitting your desk every day? And how about those intermittent leave headaches, accommodation requests, or attendance problems? Let’s face it, in HR, if it’s not one thing, it’s another. And in a small department, it’s just that much tougher.
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- Explanation of how HR supports organizational goals. This section explains how to probe for what your top management really wants and how to build credibility in your ability to deliver it.
- Overview of compliance responsibilities, through a really useful, 2-page chart of 21 separate laws that HR needs to comply with. These range from the well-known Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) to lesser-known, but equally critical, rules such as Executive Order 11246. Also included are examples of federal and state posting requirements. (Proper postings are among the first things a visiting inspector looks for … especially now that the minimum wage has been repeatedly changing.)
- Training guidelines. No matter the size of your company, expect to conduct training. Some of it is required by law; some of it is just good business sense. Managing an HR Department of One walks you through how to train efficiently and effectively with a minimum of time and money.
- Prewritten forms, policies, and checklists. These are enormous work savers! Managing an HR Department of One has 46 such forms, from job apps and background check sheets to performance appraisals and leave requests, in both paper and on CD. The CD lets you easily customize any form with your company’s name and specifics.
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