Conducting a Procedurally Fair Workplace Investigation

Lorene is a mediator and neutral workplace investigator and has more than 23 years of experience as an attorney. She's the managing partner of Win-Win Resolve, a law-firm focused exclusively on workplace investigations, employee hotlines, workplace mediation, and internal dispute resolution program. She has spear headed hundreds of complex and sensitive internal investigations and she has a book coming out later this year on the topic. My name is Dawn Lomer and I'm the managing editor here at i-Sight (now Case IQ). i-Sight (now Case IQ) is a global leader in web based case management systems for investigators.

Lorene: Thanks Dawn, and good morning, good afternoon and good evening around the world, because I understand we have folks participating from most parts of the world today. So the first thing I want to do is clarify what we're going to be talking about today and actually what we're not going to be talking about today. Workplace investigations and compliance is a very broad topic and we've traditionally looked at compliance and workplace investigations through a lens of the law, and looked at it through a legal analysis in a very distinctive posture in protecting corporations. That is not what we're going to be doing today and it's not what this webinar three-part series of that is about. The webinar series is actually a three-part series that focuses not on traditional legal analysis and traditional legal tools, but on a concept of procedural fairness. And for those of you who missed the first of the three part series, that is available on a free recording on the i-Sight (now Case IQ) internet page and I've included here on the slide the link to it. I'm not going to go back through that because we're going to focus today on a different part of that. If you're not familiar with procedural fairness and that concept, I suggest you go back and listen to the first of this series.

Procedural fairness ... What we're going to be talking about today really stems from some recent research that The Ethics Resource Centre out of Washington DC did in 2012 and then followed up on some really fascinating research that happened in 2013. Two thousand thirteen, The Ethics Resource Centre issued a report called encouraging employee reporting through procedural justice and procedural justice is another way of thinking about procedural fairness. What that research was based on, is they looked at five companies and their compliance hotlines and they had 612 employees who had reported compliance concerns through the employee hotline agreed to complete web-based questionnaires, so that was the first study, the 2013 study.

It had followed and with a more detailed study that came out in 2012 and they issued a report called inside the mind of a whistle blower and they defined a whistle blower for purposes of that research as any employee who has decided to go outside the company to report a compliance concern. For purposes of this, there were really three, as I looked at those two studies and really reflected on compliance programs and workplace investigations, to me there were three key takeaways and that's where I really want to focus today, and what started me down this path of thinking about how we operationalize the learnings from these studies. So the first one is, and I think this is the key one, is that employees want to solve their problems and their compliance concerns internally at the corporation. They don't in fact want to be whistle blowers. They don't want to go outside the corporation. And in fact the whistle blower study found that 84% of employees who became whistle blowers and reported outside the corporation had first tried to report and resolve their concern internally at the corporation. Eighty four percent, it's a huge statistic.

This other key takeaway is that they will report their compliance concerns first internally at the corporation if they believe the employer's investigation resolution process is procedurally fair. And finally and I think the most significant finding of the research is that an employee will accept the outcome of the employers investigation even, even if the outcome is disappointing to the employee or if legal constraints limit what the company can tell the employee. If and this is the huge if, if the employee proceeds the employers' investigation or resolution process is procedurally fair.

Now why do I talk about this and why do I talk about this instead of talking about legal issues. I do this because when I was in House Council, the corporation, of course the goal is not to win the lawsuit. The goal is not to have the lawsuit. The goal is to solve employee concerns and compliance issues early, quickly, efficiently and quietly, so that's why we talk about this. Then I of course step back and say, "Well, that's great research Lorene, but how do organizations, how do employees operationalize it?" And so what we're going to spend the next 40 minutes or so going through are some ideas that I am developing, and I'm developing with companies across the country on looking at your protocols and your training curriculums through the lens of procedural fairness, so that you take and operationalize these concepts into your daily practice.

So when I did that and I stepped back and reflected on what the research tells us and I specifically applied it to investigations, this slide shares with you what I believe that are high-level, what would demonstrate to an employee that your investigation process is procedurally fair. And first you have to actually have a written set of procedures and protocols for receiving, investigating, and resolving your compliance concerns.

I think you have to consistently follow those established procedures, then perhaps and what this research found, is the most important aspect of whether an employee believe that the investigation and resolution process was fair, is their perception of the investigator. Did the employee who reported the concern and did the employee who was accused of wrongdoing, if there's an employee accused of wrongdoing, perceive the investigator as neutral and did they perceive the investigation process and analysis as neutral?

Another part of procedurally fair investigation is ensuring that every employee who's interviewed both the complaining employee, the accused employee, and any witnesses who are interviewed have a complete and full opportunity to tell what they believe happened in their own words and from their perspective.

Finally, what was also critical in the research and you saw it again and again is that the investigator, him or herself needs to treat the reporting employee, the accused employee and every employee who participates in the process with dignity and respect and concern for their well-being. How that is implemented is a part of what we are going to be talking to about today. And then finally the reporting employee and the accused employee need to believe and feel like all of their issues were taken into consideration and analyzed by the investigator in reaching his or her conclusions. So now that's at a high level, so we of course now need to teach our investigators what does that mean, how do you actually operationalize and put those concepts into day-to-day practice.

So that's what I have now done. We're going to walk through some very practical tips and as I go through this tips you're going to see that I focus on process, process, process, and why. If you think about trust, which is really at the core concept of procedural fairness. Do your employees trust you process? Do they trust the employees who are operating the process? So as we all know trust is very hard earned and it's extremely easily lost. So when I think about trusting a process, it needs to be repeatable, it needs to be consistent, it needs to be auditable and it needs to be transparent. And so for those things I think about, process, process, process. And for those on the phone who've been trained in sixth sigma or other types of operating processes, if you think about that and then start to look at the concepts of procedural fairness, you're going to have some tools I think that will really do you well in putting together and looking at your programs at each of your companies on investigation. So let's get into it.

So I want to look at three tips for establishing and demonstrating to your employees that you have a procedure and that you are in fact following it consistently, so here are three tips. My first tip is you need to, I talked about developing an investigation process and procedure, and people who contact me who say, "Well, just send me your process map." And I say, "Teach me your business." Because I think that one of the worst things an organization can do is simply take another organization's process map and procedures and implement it without any type of analysis of whether that process map and that investigation and resolution procedure makes sense in their organization. So while it's fine to look for best practices, look for templates, whatever your organization needs to do is sit down and consider your specific culture both internally and how you operate in the world. What are your specific risks and challenges and then take that and tailor what are some very good tools out there on risk management and develop an intake risk assessment and by all means not every complaint requires the same response.

Even the Department of Justice here in the United States recognizes that and recognizes in some guide I gave out a couple of years ago on the hallmarks of effective compliance program that not every business and not every complaint requires the same type of response. So it is appropriate and I would advise you in fact, to implement a tool takes into account the risk assessment in developing the response that'll be appropriate. But what you want to do is have that written down and then you want to share it.

So the second tip then is once you have in fact developed your risk assessment tool, developed your protocols for conducting investigations, and developing a response, is to take the time to create an annual communication plan. Because you need to actively and repeatedly communicate your investigation process, your intake receipt, your investigation process, and how you resolve concerns to your employees. Again, trust is hard earned and easily lost. And it's important ... We all as compliance professionals are every day thinking about compliance, but of course our employees are thinking about operating the business, they are selling our products and services, they are operating our plants. And this is not necessarily on the tip of their tongue every day. So taking the time to get with your communications professionals and developing a communication plan so that you’re repeatedly out in front of your employees teaching them, reminding them that you do in fact have procedures in place and that they are consistently followed.

The third tip on demonstrating that you have an established procedure is to conduct a regular training of your investigators and as importantly, I suggest having a committee or at least a person who on a regular rhythm reviews the investigations. Not necessarily for the substance but so that they are consistently following your investigation procedures and protocols and you want to audit them to ensure consistency of process and consistency of corrective action. So, again, this is about procedural fairness and perceived procedural fairness so when you develop your communication plan, one of the things you're communicating to employees is not only do we have this procedure, we regularly train our investigators and then we audit the processes. So again, you’re establishing trust, trust, trust of the process.

So how do you demonstrate that an investigator is neutral? We know from the research that this is the most critical part of whether an employee trusts the process. Is the investigator neutral, is he or she perceived as neutral and then is the process that they use to conduct the investigation neutral? So I've stepped back and thought about three tips that I think help demonstrate in a practical way that an investigator is neutral.

First, and I say this and you would think that this is obvious, but it's not always obvious. So at minimum neither the complaining employee nor the accused employee should have any supervisory authority over the individual who conducts the investigation. I would take it a step further and say, if you've got key fact witnesses who their credibility is going to have to be assessed as a part of the investigation, I would urge you to avoid selecting an investigator where a key fact witness has supervisory authority over the investigator. And remember this is about perception, and perception is reality as we know, and so looking at who you want to investigate the claim through the lens of the people who have either complained about the compliance concern or the party who is going to be investigated and considering whether they would perceive the investigator as neutral.

The second one and this might be slightly controversial and maybe not intuitive, but in thinking about how you demonstrate that an investigator is neutral. One way to do that might be to in fact to separate procedurally out, the fact finding part of the investigation from any recommendations and definitely any decision making regarding corrective actions or how the issue is going to be resolved. Now, why do I say that? I say that because if you think about how an investigation actually works, let's take me. I'm doing an investigation and especially the accused employee wants to know what's going to happen, what's going to happen, what's going to happen, and they're constantly either directly or indirectly trying to influence the investigator so that the issue is resolved in the accused favor, right? That's human nature. If I as the investigator can say, "My job procedurally is to conduct a neutral, impartial investigation and make findings of fact, then I will give those findings of fact to a decision maker, i.e. management who will decide whether any policies have been violated and what corrective actions are going to be put in place."

What that does is it allows the investigator to control the investigation such that we're focused simply on the fact-finding and not jumping through the analysis that has to happen to decide whether in fact corrective action needs to be taken. So it helps procedurally and from a process perspective, stay focused on where you need to be focused on and not jumping to try to influence the decision. So for example, I want to give a hypothetical because I think it helps demonstrate the point. Let's take a simple sexual harassment case, a female employee has made an allegation against a male manager in the workplace of sexual harassment. I have been retained to conduct the investigation.

When I sit with the female employee I explain my role, I go through the process and then I am ultimately going to be investigating the underlying facts. So she alleges that she's been sexually harassed and my series of questions to her in her interview are directed at what specifically happened factually that causes you to conclude that you have been sexually harassed? So for example, "Have you been physically touched? Did Mr. Male Manager touch you, if so, where did he touch you, when did he touch you and who saw him touch you?" Right?

Then I ask a series of questions about, "You have made an allegation of sexual harassment, what happened in the work place or outside the workplace that has caused you to make that conclusory allegation? Did he say something to you that has caused you to come to that conclusion and make that allegation? What did he say, when did he say it, who heard it, where were you?" Those types of questions, right? She of course wants to say she is either directly or indirectly trying to influence the investigator to conclude and agree with her that in fact she has been sexually harassed, and that he'll be disciplined. And I say my role as the investigator is to listen to you and understand what your concerns are, what you say happened in the workplace and then to interview him and conduct a full investigation to make factual findings as to, if you alleged he touched you, make a factual finding as to whether he did in fact touch you. If you allege he made comments, to determine factually and make factual findings as to whether or not those statements were actually made or not made. Was it more likely than not that the behavior happened in the work place was it more likely than not that the alleged statements and comments happened in the work place?

Similarly when I sit down with the accused manager to speak to him and get his side of the story, I am going to be focused on fact finding, and he of course is worried about whether he's going to keep his job, whether he is going to be disciplined, who's going to know about it, what's going to happen. And what focusing and separating out fact finding does for the investigator is to allow them to demonstrate their role as neutral fact finder and that's so, so critical as we know to procedural fairness.

The third tip as far as demonstrating that the investigator is neutral is that the compensation of the investigator should not be in any way impacted by the investigator's factual findings. So for example, when I am retained as an investigator, my retention agreement clearly states and the employer agrees in retaining me that I am paid and receive full payment for the results of my investigation regardless of what my factual findings are. Why do I want to do that?

One, I want to make clear and document that that agreement that they are not in any way trying to influence what my factual findings are. Where you are using internal investigator, which many organizations do for much of their compliance work, you similarly don't want to in any way make it appear even that whether you get a raise or whether you obtain certain bonuses or whether you get promoted or get additional training etcetera is in any way dependent on the substantive factual findings. It can be discriminative of course on actually closing out your investigation in a timely manner, conducting them in an impartial way, going to your training etcetera, but on actually the substance of what you find, you want to avoid even the perception that you are in any way trying to influence the investigator's factual findings.

So how do you demonstrate that the investigation process itself is actually neutral? Well, I have come up with four tips for demonstrating this and again, it's process, process, process. Many of you will already be doing these things, but I've got some tips on how to document and demonstrate to the participants in the investigation that you are actually utilizing a neutral investigation process. So the first tip is when I sit down with a witness to interview them, I explain who I am and I also explain my education and my investigation training. Why am I doing that? A part of what I am doing is demonstrating to them that my process that I'm going to use is neutral and that I am not just weaning it if you will. That I just don't periodically do this, I have real education training and real investigation training on how to conduct a neutral investigation.

Next tip is I explain to them how a credibility assessment is going to be made if it's necessary. So I talk to them about what happens if I find conflicting evidence or information in conducting the investigation. I talk to them about the EEOC guidance on making credibility assessments. I talk to them about jury instructions and how juries are instructed in the US on how to make credibility assessments when there is conflicting information. I explain that to them so that they understand that there are tools out there, legal tools that will be used in making the credibility assessments and that the credibility assessments will in fact be made and that they'll be made in a neutral way. Again, this is about process.

When I talk to organizations and when I do investigations personally I think it's helpful, especially if you have a number of investigators across the country who are doing investigations for you, that you actually develop a template for ensuring that you are documenting that you have a consistent framework that will be used when you're making a credibility assessments. So those types of templates are helpful and can ensure consistency.

Then finally again, this concept of considering from a procedural perspective in your internal investigations whether it's in fact possible and the pros and cons of separating out the investigator's role on fact finding versus someone else who may make recommendations and decisions as to any corrective actions, disciplinary process that needs to be happening. I think again that allows the investigation and the investigation process to stay more neutral and be perceived as more neutral.

So how do you demonstrate that you are treating an individual with dignity, respect and concern for their well-being? We'd like to, of course, all think that we treat each other with dignity, respect and concern but the reality is sometimes our behavior in the workplace doesn't always demonstrate that. What do I mean by that? Well, sometimes we might forget to say thank you. It's a simple idea but in our pressure to get all that we have to do done every day in an organization, sometimes the common courtesies can be lost. It is through those common courtesies of course that we demonstrate in a meaningful way that we respect the other human being. We may disagree with them but we respect their time, their commitment to the program.

So I begin every investigation interview with a professional greeting. I talk about what our agenda is for the meeting and I simply thank them for taking the time to meet with me. I do that, by the way, even of course in the investigations I am doing most employees have an obligation under their policies to cooperate with an investigation. So I'm really thanking them for something that they are in fact required to do, but it is a common cutesy and a way of showing respect for those individuals which goes to this concept of procedural fairness and whether your employee will trust the process.

I also think that demonstrating dignity and respect and concern requires that if it's at all possible that you actually speak and conduct interviews face to face. It's simply a matter of courtesy. You also want to make eye contact of course and use body language that would convey respect. What I mean by that is I don't turn my back to the employee I am speaking with, I look at them, I take notes, I nod, I show that I'm reflecting back and of course, avoid taking other phone calls, texting, working on the computer. I even try to take hand written notes versus typing on a computer because I think putting a computer screen between me and the human being with whom I'm trying to interact and demonstrate that I respect them can for some people put a barrier between the two of us and show something besides respect and concern for their well-being. So if I'm speaking about procedural fairness, I'm trying to demonstrate in my bodily behavior that I respect them and I appreciate them coming forward and speaking to me.

The third tip of course is don't interrupt anyone. Again, this can be difficult because investigations are by their very nature, they can be emotional. As lawyers when we conduct an investigation we want people to stay on point, but what the concept and the learnings that we are seeing from procedural fairness is that it is so critical for employee to trust you, that they have the opportunity to fully explain to you their story in their words, in their own timeline.

So I have learned that even if an employee is giving me information that frankly may or may not be relevant to the investigation, that it is inherent in establishing trust that I slow down and that I allow the employee to tell me their story. Why? They believe it to be relevant and procedural fairness is about the perception of procedural fairness and so I need to allow them to tell the story. Of course, I may try to guide and get them back to what I believe to be the relevant facts, but I will very, very seldom interrupt someone and tell them that that's not relevant. I'll simply allow them to tell the story in the way that they want to tell me and take notes and then take follow-up notes on what is actually relevant to the situation at hand.

Again from the concept of how do I demonstrate respect, one of the ways, and of course you do this for their reasons too, but when you think about the concept of procedural fairness, one of the ways you want to give them an opportunity at the end of every interview and to in fact feel like they've exhausted and told their story. How I do that is I ask every witness at the end of each interview is there any there else that we haven't discussed that you think would be helpful for me to understand as I go about conducting this investigation. And I pause and I wait because I want them and I want every witness with whom I interview to feel like they got to say whatever it is that wanted to say. Then of course, I simply thank them for their time as a matter of professional cutesy and way to demonstrate respect and concern for their well-being and I tell them what they can accept next.

Maybe they won't accept anything, I simply am telling them that I appreciate their time and it's hardly unlikely that I'll be speaking with them again. Whatever it is I try to explain to them what happens. So I don't leave a vacuum and it's a way of demonstrating respect and concern for their well-being which goes to the idea of whether they'll trust the process and trust me as the investigator.

So this then, of course, after you have gathered all of your facts, you're of course going to analyze these facts. As we know, we all do this in conducting an investigation, but the question through the lens of procedural fairness is how do you demonstrate that you have actually analyzed all of the information? So again I thought of three tips of how as organizations and investigators we demonstrate that we've conducted a complete analysis. One way we do this of course is by ensuring that our investigators are well trained and that the investigators we select communicate effectively both verbally and in writing. When you are selecting an investigator, you always have to assume the worst. Assume that they'll be at a courtroom somewhere or at a witness stand or on TV explaining why they conducted the investigation in the way they did and why they conducted the analysis in the way they did. I always assume the worst and so when I do this, the first tip is to make sure one way of demonstrating an analysis and completing an analysis essentially demonstrating that the investigator you have selected is a professional well trained and can communicate his or her analysis.

The second tip is, again demonstrating trust and creating trust process, one way you do it is by having a consistent process that's repeatable. So I think a simple template that the organization has created that will be used by investigators to consistently document what are the relevant facts to be determined. So let's take the sexual harassment allegation we talked about earlier. Female employee has alleged that male manager has sexually harassed her. When I interviewed her she said that he has touched my breasts on three different occasions and he has propositioned me and asked me to meet him for drinks on four different occasions. Those are the relevant facts because when I asked her what facts, what has happened in the workplace that caused you to use the language sexual harassment and make this complaint that's what she talked about. Three breast touches and four requests to meet after work for drinks. So those are the relevant facts that have to be determined.

When I look at sources of information gathered related to those relevant facts, I am going to talk about the fact that I interviewed her, I interviewed the alleged male harasser, I interviewed people who saw them interact together. I reviewed other source of information, text messages between the two of them, email messages between the two of them, comments that were made simultaneously on other social media that have come forward. Whatever sources of information I have gathered relevant to the specific relevant facts that I needed to decide whether they happened or not.

Then I'm going to analyze in my template what information that I gathered was consistent i.e. what consistently said he asked her out for drinks four times and then what conflicting information was gathered. So did he deny that he asked her, did someone hear that he asked her and I'm going to have a template that simply helps me create a framework in a consistent, repeatable, auditable way to look at that investigation. Again, why are we doing this? This is not for legal purposes, this is for demonstrating ... Or this is for legal purposes but it's for this analysis and what we are talking about today in the counts of a procedural fairness this is the way to demonstrate in a repeatable consistent way that the investigator has undergone a complete analysis of the facts.

Again, what does a complete analysis do? In almost every investigation, at some point you are going to need to make a credibility assessment and ensuring that a complete analysis is done and demonstrating that a complete analysis is done is then taking and using a template to look at the credibility determination. So in a he said, she said scenario we are going to assume that the man denies that he has sexually harassed her, denies that he touched her breasts, denies that he asked her for drinks. We are going to use the guidance from the EEOC, the guidance from jury instructions on credibility assessments and the template that we have created and make a documented, consistent and complete analysis as to credibility of who is essentially telling the truth and what more likely or not happened in the workplace or did not happen in the workplace.

I’ve got some time I’ve saved at the end here, those are some of my thoughts on how we take the learning on procedural fairness and make it a practical way and repeatable way in the workplace. In the third of the three-part series, we are going to be focused on how do you demonstrate procedural fairness once you sit down with the reporting or the complaining employee and report the results and how does that look. What does that look like and then closing out the investigation with the accused employee and then documenting in your investigation reports with again the lens of procedural fairness.

I also do of course true training, two and three day training that I offer in Atlanta and I'm [inaudible 00:41:23] I'm pleased to consult or do onsite training with any organization across the country. I think Dawn that you have been getting questions coming through and so I'll turn the phone to you to see what questions we may have this morning.

Dawn: Okay great. Yeah, we've got some good ones in here. Heather is asking or saying, "In my experience, the question about who gets the investigation report can cause a lot of controversy. Do you think it’s procedurally important for both the complainant and the respondent to receive copies of the report or is it acceptable for them to receive the summary?"

Lorene: You know, through the lens of a true procedural fairness, it’s all about transparency and so if all we were concerned about in the workplace was procedural fairness, we would say everything is transparent and we share everything with everyone, we have nothing to hide. That's not our reality. We have competing interests of course in the workplace, so we have privacy concerns that are very, very real. We also have concerns about potential retaliation and of course witnesses are reviewed who have absolutely nothing to do with the alleged misconduct and simply has the misfortune of having information that may or may not be relevant. So unless there is an agreement to the contrary, most organizations do not in fact share written reports as a routine matter with either the complaining employee or the accused employee.

What it more typically done is that there is a verbal close out of some sort done with both the complaining employee and the reporting or the accused employee. I think that is probably right. You may create more issues in fact by sharing written documents and written investigation reports, even though of course from a pure lens of procedural fairness everything would be transparent. So I generally say no one gets the investigation report except management and if litigation ensues and the investigation report is not in fact privileged, you may have an obligation to produce it as a matter of course in the litigation that ensues. But short of that, most corporations are not in my experience actually sharing copies of the written reports with anyone other than management.

Dawn: Okay great. Here is another one. Do you have any tips for how to respond to a comment from an employee who says to the investigator that he or she had no confidence that the investigator can be fair since you work for the agency against whom she has filed the complaint?

Lorene: I think that is an [inaudible 00:44:27] good for the employee for raising the concern. Then what I say is, "Tell me why you feel that way." I turn it because I want to understand ... the worst thing you can do as an investigator is take any of this personally. Remember, we are simply trying to help resolve the concern and someone needs to investigate these concerns and the reality is no one is going to do it for free. So if an employee has to be asked, "What is it that you would want? What would make you feel comfortable in the process?" And yes, even me, I don't work for the employer but I am paid by the employer. I don't work for free. And so I think simply saying to the employee, "I appreciate that. Can you explain me understand what specifically you are concerned about," will go a long way for sort of dissipating that don't get offended, don't get your back up simply, "This is a part of my job." And I also think that's a part of how you go through and say, "You know, I understand that concern now let me talk to you about my process I use, let me talk to you about my education I use. I don't have personal relationships with anybody who is involved in this concern."

Dawn: Okay. here is another, do you have specific recommendations for dealing with a subject that you suspect is being deceptive?

Lorene: There are a whole, whole seminars on testing veracity. I don't typically, I mean I do but I'm not prepared to talk about that today but there are a lot of tips and tools on how to test veracity. A simple one is to ask the same story, ask the employee to tell you what happened. The most current event backwards and then the longest ago and then consecutively, so that you are testing veracity in that way in telling the story. What we know about veracity is that we are not as good at telling when someone is lying as we would have thought we were. That's what research is showing us today. So I try to test veracity through documents, through consistency of story, through some of the ways we've made credibility assessments according to the EEOC guidance and according to how we instruct juries on deciding who is telling the truth.

Dawn: Okay great. If anyone is interested in finding out a little more about [inaudible 00:47:18] and we have had some webinars on that topic in the past and the recordings are on our website so if anyone feels like listening for an hour or so to [inaudible 00:47:29] go on our website.

Lorene: Yeah.

Dawn: Okay here is another one. After interviewing both parties in your example, what if the statements given are conflicting? I think this is about the sexual harassment one. Who do you believe? What steps do you take to determine who is lying?

Lorene: Yeah. That really is ... One, that is almost always going to happen. When I come in and do investigation training with corporations, one of the things I do in preparing for that is ask to see some standardized reports, take the names out etcetera but show me what your reports look like. Inevitably, that's the weakest part of the investigations report and as human beings, we don't like to call someone a liar but the reality is that when you do an investigation you have to make a factual finding about what more likely or not happened or did not happen in the workplace. And so that is really making credibility calls and the EEOC guidance is it has some pretty good guidelines on that.

We spend a lot of time in my training in working through protocols. But that's why I say developing these templates for the investigators to use and making credibility assessments i.e. making decisions about who is telling the truth and who is not, what more likely happened or didn't happen. That's how you do that. And is it foolproof? No. The good news is we don't have to be foolproof as investigators, we have to act in good faith, we have to demonstrate fairness to our employees and there are tools for doing that but yeah, you do have to make the hard call. That's our job as investigators.

Dawn: Okay. Here is another one, any tips about handling a situation in which the complainant's attorney continually interrupts the process?

Lorene: One, query why you have the attorney allowed to participate. But yes, I do have a tool and it has proven pretty effective in that one, remain calm, then remember that the employee's attorney believes that he or she is helping his client. And so what I have said is one, when I allow an attorney to participate in an interview, I do so with a reminder of this, which is that the organization is going to allow you to participate Mr. Attorney in my interview of your client but of course you do understand that that will make you a fact witness. And so if this matter proceeds to litigation, I will be a fact witness because I have conducted the investigation and you too will be a witness because you have sat and listened to the investigation. That's one.

Two, if they decide to try to influence the investigation at the interview of their client, I note that in my meeting notes, I also note that in my investigations and I say to the attorney, "I'm sure that you believe you are helping your client, perhaps it's helpful for me to remind you what my role is here. My role is to make factual findings about what happened in the workplace or did not happen in the workplace. And one of the most important and most critical things I am doing of course is assessing the credibility of your client and your continued interruption and attempts to influence what your client is telling me of course is influencing my decision about how truthful they are being with me and how forthright. Did that help?

Dawn: That sounds good.

Lorene: Often that will shut them up frankly. And often, by the way, once I remind them that they will be a fact witness, which means of course that they can't try the case, and get additional fees, they rethink their request to attend the interview.

Dawn: Yeah, that should get rid of them. Okay, is there a way to measure whether employees think that the investigation process is fair?

Lorene: Well, I think the closest I have seen is this survey and research that was done by The Ethics Resource Center that there is a site in the slide that has an ethics.org. And there is a PDF of the research study that was done and that research study includes the questions that the employees were asked who reported. And so I think if an organization was interested in conducting similar analysis of how satisfied or not satisfied their employees are with the process that's being implemented, you could utilize a study similar to the one that The Ethic Resource Center did.

Dawn: Okay. Can the management who will receive the investigation report send aside on the outcome include the accused employee's direct manager or should this also be avoided due to potential conflict of interest?

Lorene: I'm not sure I understand that conflict of interest question because as a general matter, the manager who is supervising the accused employee is more likely than that not going to be involved in making disciplinary decisions. So unless what they are saying in the question is that the accused manager is also somehow involved in the alleged inappropriate behavior in the workplace, then I guess I can see that. But as a general matter, the operational management should be participating in the decision as to whether there is any disciplinary action that needs to happen.

Dawn: Okay. Who in an organization should be responsible for monitoring whether investigation procedures are fair? Is there a particular person who should be monitoring that?

Lorene: I think that depends, that goes back to my first slide, which is there is no one side fits all and in some ways, that question goes to the whole debate that's happening as to whether the compliance responsibilities need to somehow be separate than the legal responsibilities and there is a health debate happening across the country. My view of that is each organization has a [inaudible 00:54:35] that. And so I've seen organizations where there is someone in the compliance department who is auditing the process, maybe there is a person who has been trained as a paralegal or as an attorney or simply in compliance in process management who is doing it. I've also seen it be monitored solely in the legal organization. What's important to me is that someone is monitoring it and if there is feasibility at the appropriate level in the organization and a way to ensure that there is consistency of process.

Dawn: Okay. I'm not sure whether you can answer this one but somebody has asked whether there is a correlation between employee whistle blowing and the presence of hotlines and if the ERC's study included that information.

Lorene: Can you say that question Dawn?

Dawn: Whether there is a correlation between the existence of hotlines and employee whistle blowing, so when there are hotlines present, does that have a positive effect on the number of employees who come forward? I'm assuming that's the interpretation.

Lorene: I don't know if there is any research on that or not. I know under Sarbanes and Oxley and Frank-Dodd and some of the other financial legislation that's been passed over the past several years in the US that there is a requirement that public companies have employee hotlines. The theory behind that legislation is of course that an employee may not feel comfortable reporting locally their concern and that they want to go outside their immediate line of management to report to headquarters, if you will. Our experience in operating hotlines is that employees do feel like they can trust ... It helps influence trust if the employee feels like they can take their complaint. One, they can do it anonymously, two they can do it outside their organization but what's most critical is that they feel like what's going to happen to their complaint? That someone in the organization is actually going to have it looked at in a neutral way. So how you respond is I think more important than how you necessarily receive the concern.

Dawn: Okay and I've had a comment here in the question box from our next webinar presenter who happens to be in this webinar, Tim Reddick [SP] and he said that the correlation between hotlines and whistle blowing will be addressed in the working with whistle blowers presentation on May 29th.

Lorene: Perfect. Perfect okay.

Dawn: One final question.

Lorene: Okay.

Dawn: Can you recommend any additional reading on procedural fairness that people could [inaudible 00:57:36] these issues?

Lorene: Yeah absolutely. If you go to the first webinar, the last slide has some references there. There are a number of books that have been written on procedural fairness as a general matter. I also write on procedural fairness a fair amount, and so I write an employment law blog at winwinhr.com and you can actually go to that website and search procedural fairness and you will see a number of articles that I've written about it over the past few years.

Dawn: Great. Well, I think that's about all of our time.

Lorene: Great.

Dawn: Thank you so much Lorene for that ...

Lorene: Thank you.

Dawn: ...very interesting presentation. Getting lots of positive comments in the feedback box. If you missed any of Lorene's presentation today, you can watch the recorded webinar, which will be posted on our website next week. So keep an eye out for an email from i-Sight (now Case IQ) with a link to the recording. And I have had a few questions that I haven't had a chance to answer on here about the previous webinar, that recording is also on our website you will be able to find it through that same link. For those of you looking for HRCI or other continuing education credit, watch for an email from us with a link to a form that you can feel out to request your certificate of attendance for today's session. So thanks again Lorene and thanks to all of you for attending today.

Lorene: Great, thanks Dawn. Bye bye.