In yesterday’s Advisor, attorneys Michael Soltis and Allison Bogosian shared investigation tips. Today, their take on the ticklish business of credibility determinations, and an introduction to a new training system that will help with all your training requirements.
Soltis and Bogosian are attorneys at the Stamford, Conn. offices of nationwide employment law firm Jackson Lewis. (Bogosian has since left the firm.) They presented guidelines for good investigations at a Workplace Law Symposium sponsored by the Connecticut Business and Industry Association.
Credibility Determinations
As part of your misconduct investigation, you need to make a credibility determinations, especially where there is conflicting information or uncorroborated statements, says. Soltis recommends that the following factors be considered:
- Inherent plausibility: Is the testimony believable on its face? Does it make sense?
- Demeanor: Did the person seem to be telling the truth or lying?
- Motive to falsify: Did the person have a reason to lie?
- Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred)?
- Physical evidence: Is there physical evidence (such as written documentation) that corroborates the party’s testimony?
- Past record: Did the alleged harasser have a history of similar behavior in the past?
Remember, warns Soltis, that none of the factors above are determinative. For example, the fact that there are no eye-witnesses to alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. On the other hand, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so this time.
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Document, Document, Document
Be sure to record the reasons behind your actions, says Soltis. This helps to assure that the employer is acting fairly, objectively, and consistently, and also assures that you can prove it, if need be. Remember that it may be years in the future when a case is before a jury. Fuzzy documentation will be a problem, especially if the decision-maker has moved on.
Effectiveness of documentation is generally improved if the employer follows these guidelines, Bogosian notes.
- Be aware that any document, including memoranda and performance appraisals, may be subject to disclosure in a lawsuit.
- Document the performance problem as soon as possible to assure accurate recording.
- Ignore minor issues; focus on important incidents and behaviors that reflect significantly on employee performance.
- Focus on job-related standards and behaviors. Avoid personal opinions as to the reason for the performance problem.
- Avoid the impression of retaliation or that the employer is building a case against the employee. For instance, do not document heavily one employee and not others in the same work unit or department.
Documentation and investigations are just two of many tasks that will cause trouble—sometimes big trouble—if managers and supervisors aren’t trained.
Even with the best of intentions, untrained supervisors and managers can easily get the company into hot water. Unfortunately, up until now, training has been a real challenge—there’s such a load of extraneous planning, preparing, and tracking involved. But we’ve got good news—BLR’s editors have developed a unique new program that’s done all that work for you.
It’s called the Employee Training Center. This turnkey service requires no setup, no course development time, no software installation, and no new hardware. Your employees can self-register, and training can be taken anytime (24/7), anywhere there is a PC and an Internet connection. Courses take only about 30 minutes to complete.
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The Employee Training Center automatically documents training. As trainees sign on, their identifications are automatically registered. When the program is completed, the trainee’s score is entered. So, when you want to see who has been trained on any subject, or look at the across-the-board activity of any one employee, it’s all there, instantly available to you, your boss, an inspector—even a plaintiff’s attorney.
Course certificates can be automatically generated from within the training center and are automatically retained for recordkeeping purposes.
Unlimited Training That Won’t Bust the Budget
Best of all, in these budget-crunching times, the BLR Employee Training Center costs only a fraction of what you would pay for a learning management system (LMS). You always know exactly what training will cost, no matter how many programs you use, or how many times you use them. There’s just one low annual fee—for unlimited training—calculated by the size of your workforce. Budget once and you’re done!
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