Employees Gone Wild

by Richard Burton

  HR ≠ BFF

  Although the human resources staff will do their best to be fair to all parties in an investigation, their job is ultimately to protect the interests of the business. No matter how nice someone in HR may be, or how sympathetic the rep may seem, his or her ultimate accountability is to the company and its bottom line. If the company and its productivity is negatively affected, HR will take whatever action is needed to resolve that. Niceness is not necessarily part of that equation.

  Also, the HR rep is not your therapist. Take your personal troubles elsewhere.

  Privacy Is an Illusion

  In the course of an HR investigation—as we’ve seen in several of our case files—your electronic communication may be monitored. Don’t say anything in email you wouldn’t say out loud. Know also that your past electronic activities are fair game, too. You may think things have been deleted, but IT staff can often recover things you thought were ancient history.

  There’s a trend in many industries toward open-plan offices. As we all share (less) space and work more closely (tightly packed), it’s harder to keep things under your hat. If you’re in a cubicle or open area, others are likely to hear your conversations. If the HR staff work in a similar setting, they may be sharing unwittingly. If a matter is sensitive, it’s not inappropriate to ask for a private conversation.

  MEMO TO MANAGEMENT: CONDUCTING THE INVESTIGATION

  Do:

  • Assure confidentiality. Not just in content, but in the conduct of the investigation. If the HR rep who never leaves his office is seen working his way through a department in a series of closed-door conversations, tongues will wag. Discretion is job one.

  • Interview all parties and witnesses promptly. The longer you wait, the more time there is for details to be forgotten or recollections to change.

  • Document the investigation thoroughly. This is especially important if there is likely to be any dispute about the outcome, or if legal action—by company or employee—is a possibility.

  • Be honest with employees. Nothing is helped by giving false assurances or making empty threats. Model the honesty you expect from your employees.

  Don’t:

  • Send people back to write things down. People tend to get creative when asked to write things out after the fact. Events may, intentionally or not, get edited to favor the person reporting when they go back to recount things in writing.

  • Play favorites. There are some people you trust—because they have a good track record, or are good performers, or are easy to work with—and some you don’t—because they have been in trouble or been difficult before or are cranky or complainers. Set those preconceptions aside when an investigation is under way. The nice guy or top employee who is considered above suspicion and uses that as cover for breaking rules may get away with something that will blow up later. Similarly, the pain-in-the-butt may actually be right. Give everyone a fair shake.

  • Brush it under the rug. There may be pressure—overt or subtle—to let certain matters slide or to make a particular assessment about a situation because to do otherwise would reflect poorly on someone, or bring bad press, or simply be an issue that top management doesn’t want to address. If there is a genuine violation—of law, particularly, as this kind of thing has a habit of occurring in discrimination cases, for one—the consequences of knowingly ignoring or dismissing it are more serious than if it had never been investigated. Even if it’s more minor, such as a violation of company policy, consistently ignoring infractions undermines your ability to enforce rules when you need to.

  Case Closed

  What should you expect to hear after an HR investigation? Because there are often a lot of people to be interviewed, or the HR department may simply be (like everyone) overworked and understaffed, these things take time. But eventually, the case will be closed, one way or another.

  If you’re the subject of the investigation, you will, of course, be told whether you were found to have done something wrong because your supervisor or HR representative will tell you what the consequences are: what you have to do differently, what remedies you might have to deliver, whether you still have a job. Or, if you’ve been cleared of misconduct, the HR representative should inform you of that as well so you can get on with your life.

  However, if you are not the subject of the investigation, the investigator is not obligated to tell you the outcome. If you are the person who raised the issue, as a courtesy, you may be told when the situation has been resolved. What you’ll be told about specifics will depend on the situation: remember, if there are other people involved, their confidential personnel records are not your business. Human resources and legal staff will make their judgment about what to tell you based on the situation.

  For example, if you were threatened by another employee, and that employee is being fired, you’d probably be told that so that you know the matter is concluded and you can feel safe again at the job.

  But if you reported one of the, shall we say, colorful bathroom episodes we talked about in an earlier chapter, and didn’t know who did it, HR may not feel it appropriate, in the interests of employee relations, to tell you who the poopmonster was. Just keep using the hand sanitizer.

  Legal Eagles

  People often ask me whether they should get a lawyer if they’re accused of workplace misconduct.

  If you’re accused of something illegal, the police are likely to be involved, and your rights are defined by the law. You have—as you know if you’ve ever seen any cop or crime show—the right to an attorney, and if you’re being charged with a crime, you would be wise to consult one immediately.

  If it’s not a criminal matter, you don’t need to run out and get a lawyer. In most situations, that’s overkill and an unnecessary expense. It’s also like bringing a gun to a knife fight—you’ve now raised the stakes beyond what they were, making the situation much more confrontational.

  Threatening to sue the company is similar—you’ve just raised the stakes. If the company lawyer wasn’t involved before, he or she may be now. And we have all known the employee who accompanies every minor complaint with, “You know, my son/sister/nephew-in-law’s cousin is a lawyer. . . .” If you think threatening legal action in that way makes people take you more seriously, think again. It just makes you more difficult. Maybe being difficult is warranted by the circumstances—but you had better be sure of that. And you best be prepared to deliver on that threat of legal action, which can get expensive. Remember, you’re one person with one salary. Depending on the size of the company, they may have a lot of lawyers and very deep pockets. Be sure it’s worth it before you escalate.

  Discriminating Advice

  What about cases of discrimination? If you have reason to believe you have been discriminated against, you should research your rights (which may vary, depending on your state, whether you are employed in government, etc.). Before you can file a lawsuit for any type of discrimination covered by most laws enforced by the federal Equal Employment Opportunity Commission, you are required to file an EEOC Charge of Discrimination. Visit the EEOC website (www.eeoc.gov) for more information and guidance in that process.

  The process is different for government employees, but the same site can help you get started.

  If you fear that raising the issue will cost you your job, a Charge of Discrimination can be filed on your behalf by another individual or—as is more common—by an organization. Associations advocating for and supporting the needs of various groups are often at the forefront of pursuing discrimination cases for their membership.

  A caveat, though: just because you are [fill in the blank], and the person who isn’t got the job, promotion, or whatever, doesn’t mean you have been the victim of discrimination. There are a lot of reasons why that person might have been selected ahead of you. Ask why you were passed over, and make sure it’s not simply that the other person had more qualifications or experience. Then use that information to make yourself a str
onger candidate for the next opening.

  CASE FILE

  Colorful Remarks

  Otis was a manager who had an issue with the back office area of his company. He complained to a colleague about it. His colleague wasn’t aware of a problem and asked Otis what he thought was wrong. “Too many black people,” Otis replied. “They don’t work hard enough.”

  Needless to say, that kind of remark is unacceptable. (It was also completely untrue.) Otis was called on the carpet for attitude adjustment. His remark was damaging not only to morale and work relationships but also potentially opened the company to a lawsuit.

  In a case of discrimination, the burden is on you to prove that your race/religion/sex/whatever was a factor, i.e., that you weren’t selected because of that. In rare cases, that’s straightforward: someone tells you they don’t want to hire or promote someone like you. A generation or two ago, it wasn’t uncommon for job seekers to be told outright: “We don’t really feel a black person is the right face for our company” or “Our customers aren’t really ready to trust a woman selling our product.” But in this day and age, that kind of explicit discrimination is rare. People like Otis are vanishing.

  Discrimination can be challenging to demonstrate, especially because it may not be overt or even conscious: nobody in the company decided to promote only straight white men. People sometimes choose people like themselves out of habit and comfort and may be genuinely stunned to hear that they may not have been evenhanded in their decisions.

  In order to make your case, if you’re satisfied that you have one, you may have to prove a pattern of discrimination; that it’s not just you who was passed over, but highly qualified minorities have consistently been passed over in favor of less qualified nonminorities. This isn’t easy. Seek expert advice before pursuing a discrimination claim.

  Where do you go for that advice? A good first step is to talk with an organization that advocates for members of your group because they will understand your issues. Organizations like the NAACP (www.naacp.org), whose mission includes the elimination of racial discrimination; GLAAD (www.glaad.org), which works on behalf of lesbian, gay, bisexual, and transgender people; or NOW (www.now.org), whose focus is women’s issues, have local chapters that can direct you to good resources for information. And if it seems that you might have a case, you will want to discuss the situation with an attorney experienced in employment discrimination cases.

  CASE FILE

  Seeds of Discontent

  Discrimination usually means that choices about employment—hiring, raises, promotions, opportunities, etc.—are based on something other than performance. Another form of discrimination is harassment of employees because of their race, sex, or other attribute; that’s called “a hostile work environment.”

  One white employee had issues with sharing the break room with African American employees. His method of expressing that was to leave a slice of watermelon on the counter or table every day.

  When confronted, he feigned innocence, saying, “I just thought they liked watermelon.” He had, however, made his views known to other white colleagues who didn’t share his bigoted viewpoint.

  We don’t usually fire people for a first offense of this type if it doesn’t affect our business directly. There’s more to be gained in the long run by trying to educate the person and change his attitude by showing him why the behavior is wrong, how it affects coworkers and the company, and helping him see others as individuals rather than stereotypes.

  TIPS

  Protected Classes

  Discrimination based on the following groups—“protected classes”—is prohibited under federal law:

  • Race

  • Color

  • Religion

  • Sex (including pregnancy)

  • National origin

  • Age (40 or older)

  • Disability

  • Genetic information

  Note that sexual orientation is at this writing not a protected class under federal law. There may, however, be state or local protections in place.

  CASE FILE

  Dumb and Dumbest

  Susan was a call center employee with a hearing impediment. We were satisfied that she was able to do her job, but that didn’t keep two of her colleagues from subjecting her to verbal abuse because of her disability. They were careful to keep it on the downlow when supervisors were in range, so it was her word against theirs.

  Susan decided to gather evidence by bringing a tape recorder to work. What we heard when she brought those tapes to us was appalling.

  While on the phone with a customer, the two troublemakers could be heard saying, “That dumb b**** can’t hear what is being told to her, so why bother being on the phone anyway.” During the same call, one of them said, “Crawl over here on your knees and we’ll show you what you’re good at.”

  That was a two-fer: harassment based on her disability and sexual harassment. We had no trouble firing both of the offenders.

  TIPS

  Let’s Go to the Tape

  Call center employees are routinely recorded for quality control purposes; you’ve probably heard the recorded disclaimer to that effect while waiting for the next available representative. Secretly recording interactions in the workplace, though, can be dicey from a legal standpoint. Laws differ from state to state. Get legal advice before going too far.

  MEMO TO MANAGEMENT: DODGING THE DISCRIMINATION BULLET

  It’s not difficult to protect yourself from charges of discrimination. Keep the following in mind:

  • Be clear and explicit about qualifications and criteria for hiring, promotion, raises, etc. If the job description says the applicant must have three years of experience with Photoshop and the candidate who was turned down only has two years, it’s hard for him or her to argue that your decision was based on anything except qualifications.

  • Use those qualifications and criteria. If you decide you really want to promote someone with a different skill set than the one you originally told potential promotees, it’s natural that they might think the decision was based on something other than qualifications. If you have to make a change midstream in what you’re looking for, give every candidate an opportunity to compete based on those criteria.

  • Be willing to answer reasonable questions. “We went in another direction” is open to a lot of interpretations, but “the other candidate communicated more effectively” makes it clear the decision was based on preparedness for the job. It also gives the applicant more information about what he or she can do in order to be a more competitive candidate for a future opening.

  • Assess your workforce overall. Looking at the big picture will help you identify unconscious trends. If, for example, it seems like women never rise in a certain area of the company, it’s worth examining whether suitable female candidates are being overlooked at promotion time. You don’t need binders full of women—you just need to make sure there are no patterns of omission.

  • If you do see patterns, examine what you can do to change that. Should you increase your recruiting at events that focus on groups that are underrepresented in your company? Maybe you see that there are few people of color in your company. Is that because potential candidates don’t know about job opportunities in your company? A diverse workforce is an asset in serving a diverse community of customers or clients—and a protection against the appearance of discrimination.

  No Big Payday

  By the way, don’t expect to hit the jackpot by suing for discrimination. The law seeks to make things right by putting you in the position you’d be in if the discrimination hadn’t happened. That might mean giving you the promotion or back pay to cover the increase you were inappropriately denied. You might be able to get the other party to pay your attorney’s fees and court costs if you win. But if you have the idea you’ll sue for discrimination and land on Easy Street . . . wrong turn, buddy.

  I Can Say Anything! You Can’t Stop Me!


  People fling “free speech” around with the idea that the First Amendment to the Constitution means you can say whatever you want, wherever and whenever you want, and anyone who tries to stop you is violating your civil liberties.

  Wrong.

  Here is what the amendment says:

  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  Read those first five words carefully. The only people who can’t restrict your speech are the members of Congress in their lawmaking capacity.

  Can your boss tell you to take down that campaign poster or shut up about the company? Yep. Nothing to do with the First Amendment.

  Now, to be fair, there is a complex history of legal decisions around what an employer can or can’t do with respect to an employee’s speech. But the bottom line is that while Congress can’t make laws restricting your speech, lots of other people can put a gag on you.

  So if you were thinking of deriding your company’s products at the top of your lungs from the sidewalk out front, under the assumption that the company can’t fire you because of the First Amendment, well, you’ll have plenty of time to reconsider during your impending unemployment.

  The Bottom Line

  Allegations of workplace misconduct are serious business. The investigations are both important and sensitive in nature. If you are involved in any such scenario, tread lightly, proceed with caution, and communicate with sincerity.

  If all else fails, you may want to duck and take cover!

  CHAPTER 9

  Employees Behaving Better