Harassment Claims In The News: Lessons for Municipal Government

by Tami Tanoue, General Counsel/Deputy Executive Director

At 6 p.m., an employee meets with management to reveal the details of an accusation of sexual misconduct against another employee. By 6 a.m. the next day, the accused employee has been fired, and the employer makes a public announcement telling the world about the accusation and the consequences.

We’ve seen this and similar scenarios unfold in the media recently. But how “real world” is this scenario when applied to our world, municipal government, and are there any lessons to be learned from it?

At CIRSA, we frequently assist our members in dealing with accusations of harassment or related misconduct. Based on our experience, we can say that the above scenario is a pretty unlikely one in municipal government. Let’s count some of the ways.

Investigation? Most municipal employers, like their counterparts in the private sector, have policies prohibiting harassment and related misconduct on the basis of gender and other protected classes. Most municipal employers take allegations of harassment seriously. But an overnight firing seems very unlikely, because the first step in taking an allegation seriously is to investigate it. A full, fair, and credible investigation can take days, weeks, or months. So that’s the first way in which the above scenario doesn’t fit our experience: how much of an investigation could have been conducted in 12 hours or less? Unless the complaint was accompanied by irrefutable evidence, or the accused employee immediately made a full confession, the accusation is just that: an accusation. More is needed before action is taken. (Of course, what hasn’t been made public in the above scenario is the possibility that behind-the scenes investigation may have taken place for days or weeks before the meeting and firing announcement.)

Process? The speed with which the consequence was seemingly imposed in the scenario above is another difference. Personnel enactments in most municipalities would likely stand in the way of such speed. There may be charter or statutory requirements that must be followed, or personnel policies that provide a process for disciplinary actions. Although “at will” employers still exist among Colorado municipalities, internal processes may exist, even among those employers, that would make an overnight termination unlikely. And in those municipalities that have in place a “for cause” process with pre- and/or post-termination meeting or hearing rights, an overnight termination would be vulnerable to a legal challenge.

Transparency? Another difference is the public manner in which accusations play out when high-profile players are involved. For media figures in particular, there’s a logic to upholding transparency in an industry that demands it of others. But most employers are cognizant of the limits of transparency when it comes to personnel matters. Even in the public sector, open records and open meetings laws respect the need for confidentiality in some matters involving personnel issues. So it’s unlikely that a public employer would feel it necessary to make an unsolicited public announcement about a harassment allegation and its aftermath.

Timeliness? The timing of the accusations could be another difference. While we don’t know how far back the accusations extend in the scenario above, we’ve been seeing some public accusations of decades-old conduct against other high-profile figures. These old accusations may be newsworthy. They may be of public interest in situations where character assessments are pertinent. The public might find it worthwhile to gauge an accused person’s public positions or statements in light of allegations of private conduct against that person. But how would a municipal employer deal with decades-old accusations of harassment against a municipal employee? It seems unlikely that such old allegations could, by themselves, serve as grounds for serious and immediate disciplinary action today, absent some connection to more recent allegations, or highly egregious allegations.

Known? A final difference may be the degree to which allegations were known to the employer before they took the form of a formal complaint to which the employer finally responded. In at least some of the situations making the news today, it seems that the allegations were well-known to many, and perhaps had been circulating in the workplace or the larger community for years. A “whisper campaign” may have warned new employees about predatory bosses or co-workers, or a “burn book” of colleagues to avoid may have been circulating among employees. It’s hard to believe that some of these allegations didn’t reach the ears of the organization’s leaders, who would have been in a position to do something about them. Indeed, in at least one case, a complaint was made, but the leaders honored the complainant’s desire that nothing be done about it, and the complaint subsequently hit the news.

In municipal government, we know that the organization’s leaders have a responsibility to follow up appropriately even when the complainant wants nothing to be done, or refuses to put a complaint “in writing.” If there’s enough information upon which an appropriate follow-up can be done, then it should be done. Doing nothing under these circumstances, even if that’s what the complainant says he or she wants, harms the organization and everyone in it. The complainant and others may continue to experience mistreatment if the complaint would have been determined to be well-founded; or if a complaint would have been determined to be false or unsubstantiated, then the person who was wrongfully accused may be harmed. The organization and its leaders also lose credibility by not following the very policies they’ve put into place.

Conclusion. We’re hearing a lot about the “reckoning” happening now in workplaces around the country as a result of the highly public harassment accusations that have hit the news in recent months. There’s talk that the “me too movement” (which encourages people who have experienced harassment to share their stories on social media using the hashtag “#metoo”) is changing workplace culture. But these types of accusations are nothing new. In municipal government, we’ve worked diligently for decades to do the right thing when such accusations surface in our workplaces. We need to make sure that the spectacles making news in the worlds of entertainment, media, and politics don’t teach us the wrong lessons. Let’s continue to set the right example by:

• Having in place a clear policy against harassment, setting out conduct standards and processes for addressing complaints, establishing protections against retaliation, and providing regular training on the policy;
• Encouraging everyone in the workplace to do their part, both by meeting workplace conduct standards, and by speaking out promptly when concerns surface;
• Carrying out a credible, fair, and thorough investigation when complaints surface;
• Following up when there’s enough information to do so, whether or not a “formal” complaint has been made, and even if the complainant expresses a desire that nothing be done;
• Imposing appropriate consequences following applicable procedures when it is determined that a complaint is well-founded; and
• Exercising appropriate discretion about revealing personnel matters in public settings.

Do’s & Don’ts For Selecting Outside Investigators

by Tami Tanoue, CIRSA General Counsel/Claims Manager¹

It’s a given that a police department depends on the skills of its investigators to solve crimes, follow up on complaints, and otherwise fulfill the department’s mission. But investigative skills are important in every department, not just the police department. This article focuses on the use of outside investigators in human resources-related internal investigations.

What’s The Role Of Investigations In My Department?

It’s likely that your personnel manual includes a process for receiving, investigating, and following up on employee complaints. Policies prohibiting sexual (and other protected category) harassment, anti-discrimination policies, anti-retaliation policies and policies prohibiting bullying and workplace violence are among those that commonly include such a complaint mechanism. These policies serve several important purposes:

• They apprise employees of certain unacceptable behaviors;
• They provide a way for accusations of unacceptable behaviors to be brought to management’s attention;
• They help ensure that appropriate consequences are imposed for verified accusations; and
• Properly implemented, they help shield the municipality from the liabilities associated with such behaviors.

Your City/Town Attorney can advise you on when an investigation is warranted under applicable laws or internal policies, and how to conduct the investigation.

Who Should Act As Investigator?

Municipalities that are fortunate enough to have a human resources (HR) department can usually rely on its HR professionals to fulfill the investigative function when a complaint is received. In other municipalities, that function may be fulfilled by a supervisor, a department head, or the Manager/Administrator.

In some circumstances, it’s possible that staff handling of an investigation may be inappropriate or inadvisable. For example, if a complaint is made against the Manager/Administrator, or one or more elected officials, then there may be no one in-house who can credibly handle the investigation. As another example, if a professional standards complaint is made by a police officer against the Chief and other high-level departmental personnel, it may be inappropriate for the complaint to be investigated using internal resources, when the investigator is supervised or reports to the accused and an assertion of bias could be made. Your City/Town Attorney can advise you about circumstances when it would be inappropriate to handle an investigation in-house.

So We Need An Outside Investigator

Let’s say you’ve received an HR complaint and, with the City/Town Attorney’s help, you’ve determined you need an outside investigator. Where do you turn?

The answer may depend in part on the nature of the complaint. A law enforcement-related complaint often requires expertise in police policies and procedures, and familiarity with the law enforcement environment. A complaint of sexual harassment may require expertise in harassment policies and applicable laws.

You may be fortunate to find free assistance. For example, a neighboring police department might be willing to lend you the services of its internal investigations unit. But free assistance can be difficult to find, and you can go to that well only so often before you wear out your welcome.

There are consultants and companies that can be engaged to fulfill the investigative function. But you need to choose very carefully. A poorly handled investigation can be worse than no investigation at all. At CIRSA, we have handled member claims where the investigation was either not helpful, or placed the member at greater risk than if no investigation had been done. Some considerations to keep in mind when engaging an outside investigator include:

• The investigator needs to have prior experience in HR or police investigations, as the circumstances warrant. You don’t want to be the municipality providing “on the job training” in this critical function.
• The investigator needs expertise in the subject matter of the investigation, as well as the work culture from which the complaint arose. There are unique and complex elements in the municipal environment. You may not want someone unfamiliar with the law enforcement culture, for instance, to do an investigation of a complaint within the police department.
• The investigator must be able to follow your instructions and applicable policies on the scope of the investigation and the manner of investigating, including any procedural or notice requirements that exist. You don’t want an investigator to freelance or delve into areas that are not part of the scope of the investigation.
• The investigator needs to be neutral and impartial, and perceived that way. Someone who’s affiliated with an organization that seems to have a partisan interest in one side or the other of the employer-employee relationship may not be perceived as neutral or impartial, even if he or she is.
• The investigator must have the skills to draw information from possibly reluctant or hostile interviewees. Excellent interviewing skills and a sound knowledge of interviewing techniques, are critical.
• The investigator must have excellent organizational, analytical, and writing skills, and the ability to make accurate findings of fact and pertinent conclusions. If you want recommendations in connection with the matter being investigated, the investigator needs to be willing to provide them.
• The investigator must be willing to stand behind his or her investigation and be willing to testify at a hearing or in court about the investigation. He or she must be a credible, articulate, and truthful witness if required to testify.
• And the investigator must be able to do all of the above without costing you an arm and a leg!

Questions To Ask Before Engaging An Outside Investigator

Will you be interviewing prospective investigators? Here are some questions you might consider asking:

• What is your hourly rate, and what expenses are charged separately?
• What is your experience doing HR or police-related investigations, as the circumstances warrant?
• Are you willing to discuss your draft findings and conclusions orally before providing them in writing? Are you willing to set your findings and conclusions in writing, and provide recommendations if requested? Are you willing to make definitive findings, rather than merely stating that a particular factual circumstance may be “more likely” or “less likely” to exist?
• What is your experience working with personnel policies and Title VII of the Civil Rights Act (concerning employment discrimination) or other Federal laws and counterpart state laws?
• Are you willing to testify at an administrative hearing concerning your investigation? To testify in court? What is your experience testifying in hearings or in court?
• Is your company or organization affiliated with employee or employer interests, or independent of such interests?

How Can CIRSA Help?

If you have an internal investigation situation that you think is likely to turn into a claim sooner or later, please contact us for help in assessing the situation. If it appears to us that pre-claim assistance would help ensure that the matter is handled properly, and reduce the likelihood or magnitude of a claim, the opening of a claim file may be appropriate at the pre-claim stage. By opening a claim file, you can obtain the assignment of an attorney from our defense counsel panel to provide you with intensive one-on-one assistance. If the attorney advises that an internal investigation using an outside investigator would be appropriate, the cost of the investigator will be charged to the claim. You would be responsible for the payment of the applicable deductible on the claim, but other costs would be borne by CIRSA.

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¹The assistance of Andy Nathan and Marni Nathan Kloster of the firm of Nathan, Bremer, Dumm & Myers in providing suggestions and reviewing a draft of this article is acknowledged with thanks.

Finland Study Says Bad Bosses Cause Heart Attacks!!!

by Tami Tanoue, CIRSA General Counsel/Claims Manager

You probably saw or heard recently the sensational headline that begins this article. While this study received wide media coverage, few of the reports actually provided any details. It turns out to have been a scholarly examination of the effect on employee health of injustice or perceived injustice at work. The study provides some insights on the management and supervisory environment that can lead to unhealthy stressors in the workplace.

The Study Results

The study, published in the October 24, 2005 issue of the Archives of Internal Medicine, surveyed 6442 male British civil servants aged 35 to 55 years without prevalent coronary heart disease (CHD). The researchers found a clear association between employees’ perception of a just and fair workplace and a decreased incidence of coronary heart disease. In men who perceived a high level of justice, the risk of CHD was 30% lower than among those who perceived a low or an intermediate level of justice.

According to the researchers, this finding was not accounted for by baseline factors such as age, ethnicity, marital status, educational attainment, socioeconomic position, cholesterol level, obesity, hypertension, smoking, alcohol consumption, and physical activity. The association between the level of justice and CHD was also independent of other psychosocial factors at work.

The Study Questions

While this result is certainly interesting, and filled with implications from the standpoint of employee wellness, equally interesting were the questions that were used to measure employee perceptions of a just workplace. The key survey questions were:

• Do you ever get criticized unfairly?
• Do you get consistent information from line management (your superior)?
• Do you get sufficient information from line management (your superior)?
• How often is your superior willing to listen to your problems?
• Do you ever get praised for your work?

These study questions provide some insights into the management and supervisory behaviors that can lead to employee perceptions that the workplace is a just or unjust one.  Of course, some employees perceptions just can’t be altered despite reality, but doing all you can to provide both the perception and reality of a just workplace is a worth.

Providing a Fair and Just Workplace

Here are some issues to consider in gauging and increasing the level of “justice” in your workplace.

• Are your employee evaluations fair and consistent? Do you resist the urge to “inflate” the evaluation out of a mistaken belief that you might be providing positive motivation? If you downgrade an evaluation in relation to a prior one, do you make certain that you can identify the factors that justify the downgrade?
• Are you aware of these factors that might tend to influence an evaluation improperly:
  • The “recency” effect, where a significant event that occurs just before you do the evaluation influences the entire evaluation?
  • The “primacy” effect, where a significant event that occurred early in the evaluation period colors the entire evaluation period?
  • The “halo/pitchfork” effect, where a single very positive or very negative factor being evaluated influences your view of every other factor?
  • The “contrast” effect, where the person being evaluated suffers by comparison, because the previous person you evaluated is a “superstar” (or vice versa)?
• Do you give employees a fair opportunity to participate and provide input during performance evaluations? Are you compassionate in any criticism? Do you set specific goals and measurements for those goals? Do you discuss problems that may be hampering performance, with a focus on listening with an open mind and achieving mutual “buy-in” to solutions?
• Managers and supervisors hate “surprises” from those they supervise, but do you treat those you supervise as you would like to be treated with respect to “surprises”? Do you give adequate time for employees to do quality work and meet deadlines, or are you prone to dropping last-minute “rush” projects on them? Do you think through your instructions so that they’re clear and complete, or do employees waste time or have to re-do work because your instructions weren’t well thought out?
• If you need to terminate someone’s employment for poor performance, is the termination something that the employee will understand and perhaps even have expected? This is another area where avoiding surprises will work to everyone’s benefit. If you’ve made your expectations clear, set achievable performance standards, and provided the tools and time to meet those standards, then you’ve been just. By doing so, you’ve supported the employee and provided the employee every fair opportunity to succeed. If the employee fails, a termination will likely be justified and defensible, and will not come as a surprise to the employee.
• Do you make sure that employees learn about workplace developments directly from the source, rather than from the rumor mill? Rumor management is particularly important when the developments are or might be perceived as negative, but even neutral or positive developments can become the subject of corrosive rumors. Rumor-spreading can cause morale destruction throughout a workplace, without supervisors or management ever knowing what’s going on. Are changes in benefits being considered? Are wage freezes or layoffs a possibility? Anytime the organization has plans in the works that may affect employees, make sure those plans include ways to provide information to employees early and often:
  • Implement a comprehensive communication campaign, be truthful, and allow opportunities for questions to be asked and answered. Make sure all levels of managers and supervisors are well-versed in the issues and well-trained in their communications roles.
  • Confront tough questions honestly and accurately. Don’t try to put an unrealistic positive “spin” on something that’s going to be bad. Make sure you don’t take a defensive or punitive approach towards critics or tough questioners.
  • To achieve better “buy-in,” make sure employees understand the reasoning behind the plans. Why are the plans being pursued? What are the goals sought to be achieved? What alternatives were reviewed? What would happen if the plans weren’t implemented?
  • Identify the key “rumor-mongers” in the organization, and focus on neutralizing their negativity or, if possible, making them your allies in communicating accurate information. Those who are able to make a negative impact on co-workers often have leadership and communications skills that might be redirected for positive purposes.
  • Keep in mind that “venting” isn’t necessarily a bad thing. If the entity’s plans may negatively impact the workforce, look for ways to acknowledge and address the anger and unhappiness that are likely to surface, and provide coping mechanisms. Don’t just ignore an anxious or unhappy workforce – the situation’s not going to get better or go away by itself.
  • Even during “quiet” periods, keep the rumor mill down to a dull roar by having regular staff meetings and using other opportunities for regular communication. Share information even if you think it would be of little or no interest. You may be surprised at the interest people have in what you think are boring, routine details, especially if they’re not involved in them day-to-day.
• Do all supervisors and managers understand that maintaining and living by an “open door policy” is a key job responsibility? You may want to close your door or put your phone on “do not disturb” to get done what you think of as your “own” work. But if you do that too frequently as a supervisor or manager, think about the messages you’re sending: “Stop bothering me. Your problems are not important to me.” Don’t think of employee phone calls or drop-bys as “interruptions” in your “own” work, but as an integral aspect of supervising, managing, mentoring, and problem-solving. Listening to your employees is indeed part of your “own” work!
• And finally, is your workplace praise-deficient? Don’t take your good performers for granted. They may be self-confident and self-motivated, but who doesn’t appreciate praise? One study found that “limited praise and recognition” was a primary reason why employees leave their jobs – ahead of compensation, limited authority, and personality conflicts! A praise-deficient employee is an employee who doesn’t feel valued and respected, who doesn’t feel that he or she is making a contribution to the organization, and who’s going to run out of motivation sooner or later. And don’t overlook your “weakest links,” either. Praise is a powerful learning tool. Reinforce any signs of improvement, no matter how slight, with praise. Be specific, so they understand which behaviors have earned your praise and should be repeated.