conducting internal investigations that are trusted by employees

May 2014 ©Lorene F. Schaefer, Esq.

Conducting Internal Investigations That Are Trusted By Employees

Ever More Critical In The Era of Social Media

By Lorene F. Schaefer, Esq. Managing Partner, Win-Win Resolve

Schaefer & Associates, LLC www.WinWinResolve.com

Lorene F. Schaefer, Esq.

As more and more “digital natives” enter the workforce and the legal trend to restrict employers’ abilities to silence workplace protests continues, employers would be well served to think beyond their traditional legal defenses and consider research in the social psychology field of procedural fairness.

We are in a time of radical change as social media takes the prevalence of the Internet and 24-hour news cycle to dizzier and dizzier heights for many corporations. In today’s world, the instantaneous distribution of a blog, tweet or post is often given the same weight as an established journalistic source and the New York Times test is simply outdated. In this brave new world, confidential documents and information can now be published worldwide with just a few keystrokes and corporations are being forced to rethink how they respond and self-regulate in a world where involuntary transparency is becoming a new norm.

Employees and laymen are no longer limited to raising concerns or even filing complaints of harassment, discrimination or retaliation with the U.S. Equal Employment Opportunity, Department of Labor, state agency or local courthouse to gain an employer’s attention. Now, every employee has as much ability

Lorene Schaefer is the managing partner of Win-Win Resolve and has over 23-years of legal experience, including 14-years as in-house counsel at the General Electric Company. She also conducts workplace investigations nationwide and is a registered mediator.

Win-Win Resolve is a boutique law firm focused exclusively on ADR and the nationwide administration of internal dispute resolution programs and compliance hotlines that are trusted by employees.

Lorene’s book – Corporate Counsel’s Guide to Internal Investigations of Harassment, Discrimination & Retaliation – will be published this year by the ABA.

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www.WinWinResolve.com ©Lorene F. Schaefer, Esq. 2014

to be heard nationally and internationally as the President of the United States.

As a result, employees have at least some incentive to air their workplace concerns on social media platforms because it places them on potentially equal footing with the employer. Internet forums and review channels such as www.Glassdoor.com, where anonymous posts are published about employers, also provide a low-risk environment to disclose unfavorable information about employers. Other websites promote union tactics. For example, www.CoWorker.org provides free applications to employees to create on-line petitions to change their workplaces.

Simply put, social media provides a quick, cheap and often anonymous means for employees to pressure employers to change on the employees’ time schedule.

The leverage social media provides employees can be more problematic and immediate than a traditional administrative charge or even a lawsuit. A quick post can negatively impact employee morale, as well as damage recruitment and retention efforts.

Such disclosures also can disrupt the workplace as internal and interpersonal conflict can quickly escalate to a fever and debilitating pitch. Depending on the substance of a complaint, how widely communicated, and whether it involves leadership or management, a corporation’s brand and reputation might also be impacted.

The 2014 media blitz involving the Clippers’ owner is a striking case in point. Within hours of TMZ Sports posting an audio tape of Donald Sterling making racists comments in a private conversation with his girlfriend, advertisers were cutting ties with the team,

current and former NBA players were calling for the forced sale of the team in both social and traditional media and the NBA had retained a law firm to investigate. Just five days after the tape was made public, the NBA fined Sterling $2.5 million and issued a lifetime ban prohibiting him from attending NBA games or practices, stepping foot inside any Clippers' facility, taking part in business or personnel decisions, or having a role in league activities such as attending NBA Board of Governors meetings.

Laws Governing Social Media Policies Are A Moving Target

Corporations have often implemented social media policies with an eye to muzzling the publication of employee complaints and criticisms on social media platforms and the Internet. How far these policies may go is a moving target.

In April 2014, for example, an ALJ refused to follow the guidance of the NLRB’s General Counsel on a company’s social media policy. With case law continuing to develop, a corporate policy on social media may easily be legal today but not tomorrow. As such, frequent legal review of such policies is not only wise, but also necessary.

As more and more “digital natives” (individuals who were born into the digital era) enter the workforce and the legal trend to restrict

The leverage social media provides employees can be more problematic and immediate than a traditional administrative charge or even a lawsuit.

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employers’ abilities to silence workplace protests continues, employers would be well served to think beyond their traditional legal defenses and consider research in the social psychology field of procedural fairness.

4 Keys To Procedural Fairness

As a general matter, there are four key aspects to whether a person will accept a decision making process as procedurally fair:

! Voice – the ability to participate in the review of the complaint by expressing their viewpoint;

! Neutrality – consistently applied rules or legal principles, unbiased decision makers and a “transparency” about how decisions are made;

! Respectful treatment – individuals are treated with dignity and their rights are protected;

! Trustworthy decision makers – decision makers are benevolent, caring and sincerely trying to help the parties to the dispute – this trust is generally garnered by listening to individuals and by explaining the decisions being made.

Lind, E.A. & Tyler, T.R. (1988). The Social Psychology of Procedural Justice. NY: Plenum.

Researchers Prescribe Procedural Fairness To Employers To Curb Whistleblower Claims

The most recent study by the Ethics Resource Center (an independent research organization in Washington, D.C) tested the concept of

procedural fairness as it relates to employee calls to employee hotlines. The study examined the hotline reporting experience of 612 employees at 5 different companies. It concluded that an investigation process viewed as procedurally fair “substantially increases the chances that reporting employees will accept outcome.” Ethics Resource Center (2013) Encouraging Employee Reporting Through Procedural Justice. Arlington, VA: Ethics Resource Center.

The reporting employees were asked questions intended to test the reporter’s perception of the fairness of the procedures used in the process, the fairness of the personal treatment of the reporter and the reporter’s overall view of the fairness of the report handling procedure. In order to evaluate the impact of the investigation procedures used, the researchers used a regression analysis to determine the influence a favorable outcome had on the reporter’s perception of procedural fairness.

Not surprisingly, reporting employees who viewed the outcome of the investigation as favorable were more likely to accept the outcome. What was surprising though was that even in situations where the reporting employee disagreed with the outcome they were still statistically more likely to accept the outcome if the reporter perceived the decision making process as procedurally fair.

This finding is consistent with an earlier research study by the Ethics Resource Center, which found that employees want to resolve their concerns internally with their employers and will do so if they believe the process to be fair. According to the study, 84% of whistleblowers who raised their concern to a third-party outside of the company, such as the government or an attorney, did so only after their employer failed to address their concern internally. Ethics Resource Center (2012) Inside the Mind of a Whistleblower. Arlington, VA: Ethics Resource Center.

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As co-founder and president of Workplace Investigations Group, Lorene also regularly provides training to in-house counsel, risk managers and human resource professionals on all aspects of workplace investigations.

This training is designed to cross train in-house counsel and to enhance the skills of Risk Management and HR professionals. It is very hands-on with mock witness interviews, report writing, and more.

In addition to regularly scheduled classes in Atlanta, this training can also be customized and delivered on-site at organizations nationwide.

For more information, visit www.Internal-Investigations.com or email Alex@Internal-

6 Tips to Increase Employee Trust of Internal Investigations

In light of this research, here are a few communication strategies and practical “how to” recommendations companies can use to increase the likelihood employees will first use internal reporting tools and that the reporting employee will accept the results of the company’s internal investigation and refrain from raising the concern to third-parties on social media or to the government or adversarial counsel:

! Humanize the reporting experience. Selection of the person(s) who will receive employee concerns is critical. Approachability and accessibility are key components of procedural fairness, particularly when an employer may already be viewed as intimidating or formidable. Intake personnel should be marketed with professional pictures and bios, including languages spoken, that present them as trustworthy and engaging.

! Explain what you’re doing and why. For many employees, raising a concern may be a traumatic event. The jargon of procedures can intimidate, confuse, and overwhelm employees or heighten fears of retaliation, pushing employees into the arms of government agents, union stewards, and the Plaintiffs Bar. Know that your competition uses simple, explanatory terms that are inviting. So should you. Further, reassure reporting employees that retaliation is prohibited for raising a concern in good faith.

! Manage expectations. If an investigation is warranted, explain how the investigator will be selected and the anticipated timing of the investigation. Establish a process that provides the reporting employee periodic “updates” that assures them that their concern is receiving appropriate attention, even though details may not be part of these updates.

! Carefully select a well-trained and neutral investigator with strong communication skills. Research shows that the trustworthiness of the investigator, as perceived by the reporter, is critical to whether the reporter believed the

Investigation Training

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the investigation was procedurally fair. When communicating with witnesses, the investigator must establish a professional degree of rapport through verbal and non-verbal communication, a relevant set of questions, and appropriate responses to witness reactions such that competence of ability is demonstrated, respectfully.

! Close the loop with the reporting employee, accused and any witnesses interviewed. “Closing the loop” with everyone who participated in the process is a critical step. Closing the loop means that participants are thanked for their participation, informed that the investigation concluded, and assured that appropriate measures were taken based on the results (the degree of detail may vary based on each situation and confidentiality concerns). This debrief is a marketing effort directed at company employees to reinforce the credibility of the process, assure employees that policies are followed consistently, and demonstrate that concerns are taken seriously without the need for involving external resources outside the company.

! “Market” your reporting and compliance programs. Develop a communication plan and consider periodically sharing high level and appropriately sanitized summaries of compliance investigations and/or the types of numbers of reports being received that is appropriate for shareholders, employees, and executive leadership.

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