As I travel around the country teaching internal investigations training programs for HR professionals, I routinely encounter a lot of attendees who have just been “thrown to the wolves” in managing internal investigations. Experience in handling payroll? Check. Experience handling benefits? Check. Pretty organized person with administrative backround? Check. Then the boss says, “Since you do such a great job with (insert other stuff you’ve been doing…) we’re going to have you start handling employee relations and internal investigations!”
So, what is wrong with this picture? What’s wrong is that business owners and senior executives (primarily in smaller organizations under 500 employees) are creating a ton of unnecessary risk for their businesses. Handling employee complaints involving sexual harassment, hostile work environment, discrimination, and especially retaliation can literally, financially wipe out a business if not handled properly.
Just looking at the EEOC charge statistics are proof that far more charge notices of harassment and discrimination are coming across the desks of HR professionals. T he numbers have increased dramatically over the past ten years, especially disability discrimination charges. However, what is most disconcerting is that retaliation claims across all protected categories, are now making up nearly 50% of the complaints handled by the EEOC. And, what we often refer to in HR as the “nonsense cases” in which we just settle with the EEOC vs. continue to fight the case…Well, it used to be we were settling these kinds of “nonsense” cases for $10,000 to $12,000. These days, it’s a much more costly proposition. In talking a bit of shop with chief counsel for one of my larger clients, she and I agreed that the trend is now more like $45,000-$50,000 to settle those “nonsense” claims. And, the cost is also much higher when employers have made mistakes in how investigations have been conducted. Things like failing to document properly, not preparing witness statements, making poor decisions that were biased by politics, failing to properly gather and preserve evidence, and I could go on with the boo-boos, here.
So, what I want to get across to HR professionals reading this blog is that the days have gone by that we can just let anyone “do investigations.” The fly-by-the-seat-of-one’s-pants approach is just not the right approach. And, today it seems that nearly every harassment or discrimination case has a retaliatory element to them. So, the risk for not knowing how to investigate, document investigations properly, prepare investigative reports—and manage employee relations issues after closing out a case–is much higher than it used to be.
Additionally, what is probably the most disconcerting to me is that most HR professionals are shocked when I tell them that they can be sued individually… It is not uncommon today for employees to file suit against the company–and the HR manager / internal investigator, and supervisors involved in the employment action. This is often the case when an employee has been terminated for misconduct or poor performance. After losing the job, they often threaten to get an attorney to sue the company. Well, today they actually do “get an attorney” much more frequently—but now they are naming the HR manager who “did the investigation”, their supervisor, their supervisor’s boss, and basically they create a laundry list of allegations, create a big list of names of people they want to sue—and they do it just to see what sticks.
So, please take my advice and make sure if you are an HR professional now faced with taking on an employee relations’ role—that you please get yourself properly trained in how to manage employee relations and conduct internal investigations. If you need some help, please just contact me at Natalie@rpchr.com or on Linkedin. And, for a “how to” guide on the subject, you can also pick up my book How to Conduct Internal Investigations: A Practical Guide for HR Professionals which is available on Amazon.com.
Until next time…
Natalie Ivey, MBA, SPHR, SHRM-SCP
President & CEO
Results Performance Consulting, Inc.