My employees have requested a “truly confidential” advice and complaint channel (i.e. an anonymous email), especially for sensitive situations such as allegations of harassment, bias, or perceived unfair treatment. I try to make my employees as happy as I can, but something strikes me as not quite right about this. What should I do?

It’s ok to have an anonymous email (or suggestion box), but having one opens a business up to some potential liability. If you decide to allow such a method of communication from employees, you must also design, maintain, and communicate a formal Complaint Resolution Process and Procedure.

 

Managers, with the support of HR (internal or a consultant) must balance a fine line between two goals:

• Protect the organization from risk of employees pursuing legal action against the organization for unlawful or unfair employment practices
• Act as an advocate for the employee, providing support to employees when they are in need of negotiation or mediation in an argument or disagreement with their manager, peer, or employer.

This fine line is exactly the crux of this question: shall the employer create a way for employees to report issues or complaints anonymously, or do they maintain a policy/procedure for complaint resolution that involves the employee bringing the complaint forward directly?

 

Many of our clients have come across formal and sometimes serious complaints dropped in the employee suggestion box by an employee. The problem with this scenario is that when an anonymous note is dropped in a box, there is no way for the employer to follow up and ask the requisite questions, nor is there a way to ensure that the employee will not be retaliated against. In short, the suggestion box must be accompanied by a formal and well-documented complaint resolution policy and procedure.

 

This is where ParkAllenHR can assist you: we will create a customized Complaint Resolution Process and Procedure. With our guidance, you will be prepared any time a complaint arises. ParkAllenHR has created this process for numerous organizations. It is essential that your customized program reflects all of the ever-changing employment laws, so each time we complete this type of program, we team with our employment lawyers to ensure that our clients’ best interests are thoroughly protected.

 

Complaint Resolution Process and Procedure: Level 1:

The great majority of complaints and disagreements can (and should be) resolved in the most direct way possible: one-to-one. Part of your new process will empower your employees to go directly to the person (in an appropriate time, place and with proper tone) and tell them what behavior or situation bothered them. The two employees then would be encouraged to work out a solution. Should the problem continue, an escalation phase to the program is employed.

 

Complaint Resolution Process and Procedure: Level 2:

If an employee states that they:

• Can not directly communicate their grievance/problem with another person because they feel threatened or uncomfortable, or
• They state they have been harassed, intimidated, treated unfairly, or discriminated against

The procedure moves to the more involved, “Level 2.” This level (or phase) is where a second part must step in to mediate. Depending on the severity of the situation, a manager may be able to mediate the situation, but for the purpose of this blog, we will assume the situation merits a higher escalation. An essential part of our process is to identify who the investigator will be. The manager or owner should never act as the investigator, for the simple reason that they can not be asked (reasonably) to act as the “neutral finder of fact.” ParkAllenHR has been extremely successful when acting as the investigator, because our role is to get to the bottom of the argument by asking questions calmly and thoroughly.

 

A question that we are often asked after ParkAllenHR has completed the customized Complaint Resolution Process and Procedure is, “Now what do I do? How do I tell my employees about this process so that everyone is aware, and that they begin to believe and trust it?” Your (and this program’s) credibility is established when the policy and procedure is:

• Talked about (for example once ever six months in an all-hands meeting)
• When less sensitive situations are managed smoothly
• When training programs are provided to management.

This building of credibility with employees continues with repeated talk and action (when necessary) by your HR support person to resolve other conflict in the work place.

 

These programs in essence contain the same phases:

• An information gathering phase (interviews with all parties including claimant, accused, and witnesses),
• An analysis phase which the investigator (HR) takes all of the information collected to see if there is any pattern or evidence of pervasive and serious wrong doing,
• And an information release phase where all parties are told what the findings of the investigation are, and when penalties or discipline (if any) will occur to any of the parties.
• A conclusionary/evaluation phase when HR along with the appropriate decision makers sit down to discuss if this was a one-time miscommunication, or perhaps an opportunity to positively and effectively change the company’s process (or culture).

What if an employee says, “Can you keep a secret?”

It’s common for people to not say anything when something occurs that bothers them, until it becomes a persistent problem for them. Employees often are concerned that they may be perceived as the “problem employee,” so they may say nothing for long periods of time. There are times when employees hope to deliver the news “confidentially,” so that you, as the manager, can step in and fix their problem for them. The challenge here is that there is always another side to every situation, and your investigator needs to identify both sides of the story before any conclusions are made.

 

If an employee asks you to keep something confidential, you must reply, “If you tell me something that by law I need to act on, I must. This may include involving others in an investigation to find the facts. But I will assure you that at no point will you be retaliated against in any way because of this situation that you are bringing to my attention.” In several cases, employees have refused to release the details of the situation initially. In those cases, it is essential to reassure them of both the process, and the investigator’s ability to remain “the neutral finder of fact.” The employee wants desperately to resolve this situation, and with careful support, employees will divulge what the issues are.

 

Can these types of situations end smoothly?

Our clients have regularly expressed concerns that, “Nothing after this will be the same” after going through one of these situations. In a sense, this is true: people will act differently to one another after they participate in a problem resolution process. And there may be tension at first between employees. However, our reply is, “You’re right: your business culture will be even better.”

 

Studies have shown that employee morale is often tied to how they perceive they are being treated. If they are being treated well and have an effective way of communicating their concerns and resolving their conflicts, they stay engaged at the work place, and produce at a far higher rate.  This leads to an excellent/positive business culture (and overall morale), greater productivity, and oftentimes, it reduces high (and costly) turnover.  We have seen clients who have established and communicated this process describe their work culture as, “better than ever.” One client remarked:

 

“I was reluctant to establish this policy in fear that my employees would have a new way of airing petty differences. In fact, they were able to discuss their concerns in a fair and manageable way, and there was far less confrontations at work. My employees are not leaving at the rate they once were, and my bottom line is really reaping the benefits of this process.”

 

 

 

 

 

ParkAllenHR selected as July 2010 Business of the Month

This is great news... ParkAllenHR was selected as the July 2010 Business of the Month! Please read the article on page 2.  Here's the link: http://tinyurl.com/2f8e9tv. 

What do I do if my employee claims they have been harassed or discriminated against?

If you have ever been a manager or business owner and heard an employee say, “I’ve been harassed;” you probably have felt that dramatic “Oh my god, now what?!” feeling in the pit of your stomach. This is the point at which you must be prepared for what must come next: an investigation process.
Many business owners and managers have asked me for a simple and quick solution to deal with a complaint like this, or they’ve asked if they need to immediately hire a lawyer (and spend thousands of dollars to resolve the problem). The solution, while not a quick one, is fairly straightforward. If you follow the process that I lay out in this blog entry, you should be well on your way to resolving any issues that arise in this sensitive area of Human Resources Management.
The process:
The following is a solid 9 step process to address any harassment or discrimination claims broth to your attention. While this is merely an overview, it should give you an idea of the steps that should be taken:
1. Who do you turn to?
2. Initial meeting
3. Identification of an investigator
4. Investigation (claimant, accused, witnesses)
5. Following up with claimant
6. Further information gathering, if needed
7. Investigation document preparation
8. Evaluation of document and process by at minimum HR counsel, and probably legal counsel
9. Closing meetings and disciplinary meetings (if needed)
Who do you turn to?
If you are in a well-developed and HR supported organization, the clear answer is that you report everything you heard directly to HR, and await instruction on what to do next. But, many of us either do not have HR support, or HR is some office far away that only does benefits enrollment and recruiting. So, here is what you do if you hear “the magic words” (words like “he made me feel uncomfortable,” or even, “I think I’ve been harassed”).
If you do not have a Human Resources department, and you do not have a lawyer that your organization has used in the past, you must seek out an appropriate person or group to support you through this process. I will discuss this further in the “Identification of an investigator” section.
Keep in mind that 95% of employees do NOT want to bring something like this to your attention. They want to keep their heads down, work hard, and keep out of trouble. More often than not, they have stewed on this situation for a while, and have reached a point where they can no longer deal with the offending person any longer. They’ve reached their breaking point, and are in need of support, and of a good process. So that’s where we’ll start.
The initial meeting
Do you remember back in grade school when your friends would say, “Can you keep a secret?” Most times, you would say “of course I can,” and then immediately proceed to the next person to tell them what you just heard. Humans are very social creatures, and nothing is more social than sharing a tasty morsel of gossip. But in this case here is, word for word, what you should say to your employee (should an employee ask you if you can keep a secret):

“I will do everything in my power to keep the contents of this meeting confidential.  However, there are some topics or situations that if brought to my attention, I need to act on.”

Your employee may then say to you, “Excuse me? What are you talking about?” You should explain that as their manager, if they tell you someone has discriminated or harassed them, you are obligated to take action to both support that employee as well as get to the bottom of the issue.

If the employee leaves without telling you what the problem is, your job is not done. You must then pay special attention, and listen to both that employee and others to see if you can spot the issue. You need to get that person to trust that you will do the right thing for them, and that you will support them through the process of the investigation. You need to get them to come back to the table and explain the problem they are experiencing.

If the employee chooses to stay and tell you everything, grab a pen, and take notes. You do not need to get every detail at this point, just the general situation, the players, and when it happened. Ask the person to take some time to write down everything they remember, who else witnessed this happening, and that you (or someone else) will be getting back to them to begin the investigation in the next few days.

Choosing an Investigator

If you’ve got HR, it should be their responsibility. Call and ask, or if possible, schedule a time with your HR representative to discuss what has been revealed to you.

Some organizations have designated someone else (their legal counsel or Risk Manager, for example) to conduct these investigations. If this is your case, then as with the HR representative above, contact the appropriate person.

If you have neither (as with many businesses), then you need to hire a reputable employment law attorney or HR person to conduct a proper investigation. If you choose a lawyer, they will probably assign a good HR person (or someone in their legal staff) to conduct and do most of the documentation (which they will review). If you choose an HR person, they should review their final outcomes and documentation with an Employment Law Attorney prior to final actions/presentations.

The bottom line is, you can not be the boss AND the investigator at the same time. It is essential to find someone to act as the “Neutral finder of fact.” By having this person act neutrally (not in favor of the claimant, nor the person accused (nor the employer)), you are better protected from lawsuits about this claim, and about claims in the future.

The Investigation

At this point, you have successfully turned the responsibility of the investigation over to another person (or persons). However, depending on who you have selected, you may need to make introductions (to the claimant, witnesses, and accused). Remember: you are the one they trust, and you need to explain why this person is taking part in this process.

As the manager or owner, it is important that you are familiar with the investigation process so you can follow up with the person you have selected (or identified) to complete the investigation in a timely manner.

As the investigation proceeds, you should keep in close contact (follow up often) with your employees to ensure that no one is talking about the process to ANYONE ELSE. Office gossip surrounding the investigation of the allegations needs to be kept to an absolute minimum. All employees interviewed must be sternly instructed that the issues and allegations are confidential. Gossip about the identities of persons involved may be damaging to any and all parties involved. Gossip is also damaging to the workplace dynamic and may result in individual liability to the gossipers.

ParkAllenHR’s Investigation process is a tried and true method that asks consistent and thorough questions of all parties. The process has been reviewed by several Employment Law Attorneys, and is reviewed and updated on an annual basis.

A note about “Retaliation”

Most harassment and discrimination claims are very hard to prove. However, retaliation claims that come from these investigations are often litigated. The trouble is, that “retaliation” is often subjective, that is, the claimant often feels that because of their claim, they are targeted. Their work performance will change, usually for the worse, and often these employees quit their jobs, or are fired for poor performance. These people then go seek legal counsel, who files a “right to sue” letter with either the Department of Fair Employment and Housing or the Equal Opportunity Employment Commission.

As such, it is essential that you keep office gossip to an absolute minimum, and that you explain tasks and responsibilities for your employees clearly, and if possible, in writing.

Following up with claimant

The claimant and others interviewed in the investigation will inevitably be thinking about this situation, and often may remember other details that may aid the investigator. If any of these people inform you of other details, make sure they get those details to the investigator.

Further information gathering, if needed

As with any good investigation, when any other details have been revealed, it is important for the investigator to find out as much as possible.

Investigation document preparation

When the interviews with the claimant, witnesses, and the person accused have been completed, it is the responsibility of the investigator to write down all that was disclosed. This document needs to be evaluated by at minimum HR counsel, and most likely legal counsel as well. Because there may be implications with disciplinary actions and even people’s employment, the findings should be shared with you, the owner and/or manager.

Closing meetings and disciplinary meetings (if needed)

The investigator should meet with (at minimum) the claimant and the person accused of causing the discomfort. These meetings should reveal the findings of the investigation, and not the investigators feelings of who was right, or who was wrong. Again, the goal of the investigator is to remain the “Neutral finder of fact,” and not the judge.

However, if a trend is obvious, or it is clear that the conflict is based in misunderstanding or (or more likely, perception), those facts should be called out to all parties.

If wrongdoing is found, there must be immediate repercussions for that wrong doing. It is essential to be prepared with all the documentation, and final checks, if necessary.

ParkAllenHR has a full-process developed for events such as these. Feel free to contact Park to set up a time to discuss this process.

Moving forward, moving on

As with any argument, this investigation process (or the situation that necessitated the investigation) will leave a lasting impression on your business or group. There will be tension, frustration, defensiveness, and possibly employee turnover because of it. As mentioned before, it is ESSENTIAL that there is absolutely no retaliation toward the claimant. Even if the investigation found that the claimant was absolutely, unequivocally wrong, if that person is made to feel retaliated against, they have grounds to seek a lawsuit against you.

As such, you must set the tone. You must increase the time you spend communicating with each person. On a regular basis, you need to ask the claimant, “How are things going? Have there been any situations that you want to tell me about?” If you document when you bring this up to your employee (and even better, do it in writing or an email, and encourage the employee to respond), you have a level of protection against future litigation. In time, your group will again start to work well together, and perhaps because of new expectations, they may function better together.

You will find that setting a cultural expectation of mutual respect and open communication is essential, and will go al long way to lessening the amount of claims that occur in your workplace.

Are you in need of an HR Consultant?

Please keep in mind that I can assist you and your business to achieve a greater level of success and employee satisfaction by helping you establish a solid HR procedure at your place of work...  I can assist you with such projects as:

◦Paperwork for new hires, leaves of absence, and termination.

◦Employee handbooks/manuals, policy/procedures, or program design.
◦Employee conflict or under performance documentation and guidance.
◦Audits of I-9 documentation, federal posting requirements, and other HR documentation.
◦Benefits analysis, roll-out, or redesign.
◦Federal, state, and local law compliance audits (examples: San Francisco Sick Leave Law, Healthcare Accountability Ordinance).
◦Recruiting services for a single employee or an entire department (and on-boarding process analysis).
◦Management and employee training, such as Anti-harassment training for supervisors, excellence in customer service, active listening.
◦Job descriptions and pay structure projects.
◦Compensation analysis and structure.
◦Workers Compensation, Safety/OSHA Compliance audits and program/process improvements.
◦We can also design a custom solution for any other challenges you're trying to resolve, so please contact us to discuss your particular needs. We will work with you to design a tailored solution that best meets your needs.

Don't hesitate to call me should you need support.  You can reach my at: park@parkallenhr.com, or (415) 302-3557.

How do you get rid of a problem employee?

If you have ever owned your own business, or if you have ever managed people, you most likely have come across this problem: “How do I get rid of a problem employee?” Let’s use the following as our example:

 

You have an employee named Mary, who for a couple years now has taken up most of your time. She comes in late, or she calls off sick. When she is in a bad mood, she can be neglectful or even disrespectful to co-workers or clients. She doesn’t support any new initiatives, because she thinks the way things have always been done is just fine. She seems to infect others with her lack of enthusiasm, and she seems to spread indifference across those she works with. And yet, you have only commented to her a couple times that you wish she’d improve her attitude. The rest of the time you’ve spent trying to keep everyone else motivated to step it up. You’re tired of dealing with Mary and her distractions, and you’re ready to move on.

 

Oh yea, and the kicker is that she’s over-forty, a minority, and has a bad back from lifting a box in your back office. This makes you feel that she’s “untouchable,” because if you fired her, she would probably sue.

 

Three step process

 

So you’ve determined she needs to go… But how do you do it without getting sued? Without completely disrupting your normal business flow? You can do this, as long as you follow three steps:

 

1. Set expectations in writing, and have the person sign and date that document. Set a time for checking back in on those expectations.
2. Meet again to discuss progress, what expectations are being met and not being met, get signature on that document.
3. Warn the employee that they will lose their job if they do not change their behavior, get signature on that document.

 

I’m sure you said, “Easy for you to say, hard for me to do.” This is an inherent challenge in managing people: having to affect their lives in a negative way (firing them). But it must be done, or things will never improve. Other employees, including those who are hard workers, will follow the negative lead if you do not take action. If you take the proper steps, and are prepared, then you can terminate the employment of this person, and improve the office or business culture.

 

Document, document, document

 

Written documentation is never an easy thing to put together. The best way to handle this is to have a system or process in place that you can lean on when there are challenges. For example, if you give someone a list of tasks they must accomplish every day in order for your business to succeed, and you have them sign that document, then you have established expectations. That’s a great start! If you formalize these lists, they are the basis of job descriptions (a key employment document along with an employee handbook).

 

The second step is to create on-going check-ins to identify tasks that are being accomplished to your expectations, and to tell the person (in writing) where they are not doing enough. An example of this is an annual performance appraisal, but it could be a simple monthly check in (with a written document, so the employee can not say, “you never told me that.”).

 

The next step is to put the person on notice that their actions are so bad that you will take serious actions if they do not change their behavior. I like to start this serious document with the following line:

 

“This is a written warning. Your job is in jeopardy. It is essential that you take

the necessary steps to improve your performance and to sustain that improvement.

Failure to do so may result in further disciplinary action, up to and including

termination of your employment.”

I especially like the bolded part, because it makes it very clear that you are the decision maker, and you will take action if the employee does not improve.

 

The final step is the termination meeting. You must be prepared. Depending on the size of your organization, and the tension of the meeting with this person, I recommend that you seek counsel/advice on this final step with either a Human Resources expert, or an employment lawyer. They will help determine how at-risk you are for any litigation, and what steps you can take to mitigate that risk.

 

Advice for the meeting

• Say what needs to be said in as few words as possible. Do not hesitate during your delivery of this message, because hesitation creates tension.
• Be as honest about what you and the business need to succeed, and what actions the person is/was doing that negatively affected those needs.
• Maintain eye contact with them when you say things like, “I know you are a good person, and some of the tasks you did for the organization were good.”
• But drop your eyes, and be as respectful and kind as you can when you deliver, “I know this is very difficult to hear, but as your manager, I must say it.” And, “We both know this situation wasn’t working well, and there will be other, better opportunities for both sides.”
• Let the person maintain their dignity. Do not make them clear out their desk/cube/locker on a Friday at 3pm, in front of the rest of the staff. Attempt to have the meeting when others will not be around to witness it.
• Never agitate the situation, even if provoked. For example, if the person tells you that you are a heartless (insert expletive), do not respond with, “You’re fired! I’m glad you’re gone!” Let the person walk away with the last word, because it may make them feel a bit better about getting that last word. If you must respond, then say something disarming like, “I am really sorry you feel that way. I truly hope you find another opportunity that makes you happier."

Conclusion

 

While it is never easy to end someone’s employment, it is a necessary and essential part of a manager or owner’s job. It’s telling the truth, and holding people accountable. The good news is, if you begin documenting expectations BEFORE there are issues, these processes are easier, and also less frequent.

 

Remember to follow the three step process, making sure to document each step in writing, and to deliver the message in a respectful, calm, and prepared fashion, and you will be able to complete this very difficult process.

Welcome to the new year... Are you prepared to make the right personnel moves?

I'm an independent HR Consultant who has had great success in finding progressive and creative solutions for difficult HR challenges.