Allison West – Employment Practices Specialists

I am not a big sports fan and tend not to use sports analogies in my writing or training. But when you live 20 minutes from a team headed to the World Series, you become, as if by osmosis, a devoted fan. Everyone loves a winning team. But, in order to have a winning team, there must also be a losing team. Now I am pretty sure the Cardinals (they were the other team, right?), must still be outstanding to have made it through 7 games for a chance to win the Pennant (am I even saying this correctly?)  However, in the end, to the world, the Cardinals are the losers.

The words we choose have power. They have the power to make someone feel fabulous – “You look beautiful in that shirt.” Or, can be brutally raw and hurtful, “That presentation was lame and a waste of time.”

The word “loser” connotes many images – someone who didn’t try, wasn’t good enough or is a failure.  I have personal story concerning power of the word “fail.”

Back in 2003, CBS approached me to be in one of their featured segments on adoption as I was nearing the end of the process of adopting a baby from Belarus.  I was given a camera to chronicle my journey to meet my son and bring him home.  CBS sent a crew to our town near San Francisco to film us for a day, and voila, our segment appeared on The Early Show back in December 2003.

Sounds great, right?

Well, as I began to watch the show (with the rest of America) I heard the narrator say, “Allison West…after two failed marriages…” I couldn’t hear anything else she said about my need and great desire to be a mom. All I heard was “failed.”  I was shocked.  Sure, I was acutely aware my marriages didn’t work out (not my fault according to my mother) but I never used the word “failed.” Somehow, that word made me see myself differently – for a short time. Was I a failure? I didn’t think so, but hearing that word made me pause and wonder if the rest of the world would view me that way as well. Ultimately, I decided to not let that word define me.

So back to the Cardinals. They lost a Pennant, but they are not losers. The point is – they failed to meet their goal, but they are not failures or losers.  Just as we are not losers if a marriage or job doesn’t work out.  As HR professionals, we need to guide managers and supervisors to use words correctly, deliberately and with integrity. Words can empower. Instead of saying to someone – let’s look at your weaknesses and turn them into strengths. You can say let’s look at ways that I can help you improve your performance to meet your goals. By taking away the word “weaknesses” we can turn that sentence around so it is creating a more positive message. Words have power.

On a personal note, this past Sunday was the 9th anniversary of the adoption of my son, Tyler. The love of my life. For those who might be interested in seeing that CBS special I referenced above, here is the link.  Just fast forward over the failed marriages part…

http://www.cbsnews.com/2100-500178_162-589296.html

The NLRB recently ruled that employers who tell employees involved in an internal investigation to keep the details of the investigation confidential must now be prepared to prove that the confidentiality restriction is necessary to further a legitimate business need. This puts a significant burden on the employer to justify something that most investigators would agree should be a given and constrains the ability of employers to conduct thorough and accurate workplace investigations. As an investigator – I can tell you I now do some things differently.

So, what should employers and investigators to do?

To answer this question i-Sight Software will be hosting a free webinar featuring – yours truly – on October 18^th from 2 to 3pm EST/11-12 PST

The webinar will explore:

• Working through the 4-prong test to prove a legitimate business need for confidentiality
• Who should decide whether or not confidentiality is necessary for a particular investigation.
• How to properly document the case for requesting confidentiality
• Various dilemmas the case creates for investigators
• Some suggested wording for retainer agreements

Here is the link to register:

http://i-sight.com/investigation/confused-by-the-nlrbs-ruling-on-confidentiality-in-investigations/

You read the blog title, slap your head and say, “Really?” Last week the NLRB came out with a decision that really has HR and employement attorneys rolling their eyes. In its Banner Health Systems decision, the Board ruled that employers (read: HR and outside investigators) who tell employees/witnesses to keep the nature of the investigation confidential must now be prepared to prove that the confidentiality restriction is necessary to further a legitimate business need. HELLO! What more legitimate business need can there be than
1. encouraging employees to come forward with a complaint,
2. protecting witnesses and employees from retaliation, and
3. helps maintain the integrity of the investigation (e.g., rumor mills, spoliation of evidence and on and on.)

On July 19, I delivered a session at The HR Star Conference rconference entitled The Top 10 Mistakes Investigators Make. One of the mistakes is not keeping things confidential. I did caution the audience that asking an employee or witness to keep the matter confidential could snag the ire of the NLRB but that investigators still have an obligation to manage the investigation and so long as the instruction on confidentiality is narrowly tailored – you may, might, hopefully be ok. My advice was timely, but where are we left now with this decision?

The Boards decision is not a total prohibition on asking for confidentiality. Just be prepared to establish that confidentiality is necessary to protect a witness, prevent the destruction of evidence, preserve testimony, prevent a coverup, or further another legitimate business interest.

(I am writing on an ipad in Barcelona so please forgive typos)

Last week Jerry Seinfeld was the entertainment at the SHRM Annual Conference held in Atlanta. He was dressed in a suit which I greatly admired – he took his audience seriously. He was in perfect form and had about 15,000 of us laughing for over an hour. Here are some takeaways from his wonderful performance:

1. Watch your tone. Now Jerry spent quite a bit of time relaying how his wife didn’t like his “tone.”  I am sure you can all relate whether it is your wife, husband or parents telling you about your tone.  When it comes to the workplace, how HR and managers relay their message is often impacted by the tone we use.  Pay attention to how others view your words, demeanor and intent. Do they line up?

2. Stop sitting so much.  Jerry’s opening routine was about sitting. We are all looking for the next place to sit.  One popular management technique is to manage by walking around. The same holds true for HR. Get up out of your chair and walk around – visit with employees and managers.  Let them know that your open door attitude goes both ways and that you are willing to get out of your chair to meet, greet and assist.  By walking around you may actually learn more about issues, concerns and ways you can help.

3.  Watch your words.  Pay attention to the words you use and how you use them – they have many meanings.  Ask folks for their definitions – listen and connect.  For example, an employee may say they feel “uncomfortable.”  I know what that word means and so do you. But, maybe the employee has a different definition and by asking you can gain insight to a particular issue going on.  The words we select can give away a lot of information – don’t miss out on a great opportunity to learn and be able to assist your employees.

Have any other lessons from Jerry Seinfeld you want to share?

I will be delivering a three-hour session on How to Conduct a Legal, Thorough Work Workplace Investigation at the annual California Employment Law Update Conference in Berkeley on November 2.  As part of the promotion, I was asked to share what common investigator mistakes I frequently see and wanted to share some of my observations.

The most common mistake I see is that investigators don’t dig deep enough during the investigation interview.  For example, the complainant is a white 55 year old female.  She describes feeling “uncomfortable” with the alleged wrongdoer.  Most investigators will simply write down “uncomfortable” without asking what the person specifically meant by “uncomfortable.”  The complainant may have an entirely different definition than the investigator who is a 35 year old Hispanic male.  Or, a 25 year old white female.  Why is this important? You need to know what the words mean to the witness.  When you query the witness she explains,  ”I was scared, nervous. I was afraid for my safety.”  Okay – now you are getting somewhere. Her definition is a bit more extreme that you might have anticipated and gives great insight into what she was feeling.  By asking the witness to more fully describe a particular word you will be able to dig deeper and find out more about the facts.  If you had neglected to probe further you might miss – or misinterpret – what the witness is telling you.

Another common mistake I often see is when the investigator has not remained neutral. He or she comes to the table with some bias towards one of the witnesses, the complainant or the alleged wrongdoer.  It could be the investigator is too close to the situation, knows the parties too well or has preconceived notions about the parties because of past experience.  Staying objective is a critical part of conducting an effective investigation.

A third common mistake I see, and one that has a potentially perilous outcome for the employer, is when the investigator reaches a conclusion too early.  This happens when the investigator is engaging in the second mistake noted above – they are biased.  The investigator feels he or she knows what happens and does not conduct a thorough investigation.  They stop too early, don’t attempt to get corroboration, and worse yet, make assumptions without gathering all the facts.

Stay tuned for future posts about other investigation mistakes. Please share any common mistakes you see!

To register or learn more about the California Employment Law Update: http://celuonline.com/workshops/