It seems to be that each week is busier than the last. Here are some of the things we blogged about this week- as well as some other pieces that caught our attention regarding internal investigation, human resources and ethics:

Monday:

• Blog Post- Integrating Ethics and Compliance Into the Entire Organization

“There’s no point investing in and implementing an ethics and compliance program unless the time is spent integrating the program into every aspect of an organization. The need for companies to develop effective ethics and compliance programs has been acknowledged by several government agencies- examples are the SEC in the US and the government in the United Kingdom. Both groups have recently passed legislation or made amendments to existing guidelines, focusing heavily on the importance of ethics and compliance at all levels of an organization- especially at the top. Employees at each level contribute to the success of a company’s ethics and compliance program. Integrating ethics and compliance at each level helps ensure the message from the top makes it all the way down to the lower levels of the organization. Training, messages and other ethics and compliance initiatives must be developed to evolve with employees as they move through the company. That being said, employees at various levels need to be prepared to address different ethical issues they may encounter based on the role they play in the organization.”

Tuesday:

• Blog Post- Reducing the Opportunity for Workplace Fraud

“The values associated with workplace fraud continue to rise- especially during economic downturns. Preventing workplace fraud begins on the inside of an organization. One of the largest fraud risks companies must address is the opportunity for fraud to occur. There are a number of anti-fraud techniques and systems that are easy to implement within any organization. When fraud grows out of control within an organization, reputations and public trust are destroyed. To reduce the opportunity for fraud to occur, accounting and money handling responsibilities must be divided. Monitoring and enforcement of anti-fraud programs is necessary in order for the program to be effective and for employees to take it seriously. When employees know they are being watched, their work is being reviewed on a consistent basis and punishments are administered to those who violate anti-fraud policies, there’s less room for fraud to go undetected.”

Wednesday:

• Blog Post- Recovering From Ethical Lapses and Investigations: Siemens

“The $1.6 billion fine handed down to Siemens in 2008 was much more than a record breaking fine, it was a lesson for other companies to learn from. Prior to the bribery scandal, Siemens had an ethics and compliance program in place, however, there was a missing link between leadership and the enforcement of the program. The company’s cooperation during the SEC investigation lead to a reduced penalty, but also gave way to a complete re-design of the company’s internal ethics and compliance controls. There are many lessons learned from the Siemens charges, the reaction to the investigation and the actions taken by Siemens to position the company as an ethics and compliance leader in the post-scandal era.”

Thursday:

• Blog Post- The Importance of Investigation Interview Credibility

“In order for a workplace investigation to be credible, investigators must deploy certain tactics to verify the accuracy of interview responses. In a previous post, Investigation Interview Questions to Determine Credibility, we reviewed the EEOC’s 5 factors to consider when determining statement credibility during investigation interviews. One of the toughest challenges to overcome during investigation interviews is the fact that witnesses may withhold or modify their responses to protect the subject- or the complainant and possibly even themselves. As investigators are often pressed for time when conducting internal investigations, they cannot afford to get hung up on determining who is correct in the “my story vs. their story” battle. We have compiled a list of simple tips and techniques investigators can use to determine investigation interview credibility.”

For many organizations, situations involving workplace bullying remain a growing concern. Whether the situation involves peers or superiors, all matters involving physical or mental bullying must be investigated promptly, with appropriate punishment administered. Like many forms of workplace harassment or discrimination, movements are being made to hold employers responsible for protecting employees from workplace bullying.

In May, the Wall Street Journal published an article that discussed the signing of a bipartisan measure in the state of New York that would allow employees who have been abused in any form within the workplace, to place charges against their employer in a civil court. Following in the footsteps of the UK Bribery Act and US FCPA, the anti-bullying legislation proposed in New York states that employers may not be held liable in a workplace bullying case if they can provide sufficient evidence that a program is in place to prevent such incidents from occurring. 

A number of other states in the US have developed legislation to help fight workplace bullying, however, according to the article “For Businesses, Bully Lawsuits May Pose New Threat ,” none have become law. If a bill such as this were to become law, there would be significant implications for employers. The number of complaints related to bullying situations would likely increase, resulting in an increase of the number of investigations conducted.

Complaint Handling

Workplace bullying situations vary both in nature and the effect of the actions on each individual. By definition from the “Healthy Workplace Bill,” workplace bullying is:

“Repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms:

Offensive conduct/behaviors (including nonverbal) which are threatening, humiliating or intimidating

Verbal abuse.

Work interference – sabotage – which prevents work from getting done.  

All incoming complaints should be treated with equal importance, subject to a pre-screening process before the decision is made to launch a full-out investigation. Upon receiving a complaint regarding workplace bullying, investigators must respond promptly. As previously discussed in this post, workplace bullying isn’t illegal. However, bullying situations, if ignored, can lead to illegal workplace acts, such as discrimination or harassment. In order to respond to and conduct an investigation in a timely manner, investigative units should consider implementing a case management software solution.

i-Sight Case Management Software assists investigators in managing cases through the use of workflow rules and automatic alerts. When a new case is entered into the system, an investigative manager can either assign the case to a member of the investigation team, or the case can be automatically routed to an investigator based on case information. To remain on task throughout the investigation, alerts are sent to bring attention back to overdue assignments to complete the investigation on time. The time it takes to complete an investigation is important. Should the case end up in court, employers can be held responsible for negligence if an investigation is completed improperly or takes too long.

Determining Credibility

Determining the credibility of the complaint is a key success factor in any internal investigation involving bullying. As mentioned above, incoming complaints should be put through a “pre-investigation” process before allocating the resources required for a complete investigation. Certain incidents can be resolved without an investigation, therefore, save some money and investigate when appropriate. Assessing the credibility of an initial bullying complaint is important, as mentioned in the Bloomberg Businessweek article “Employers Can’t Ignore Workplace Bullies,” everyone has a different interpretation of what bullying is:

“What is bullying to me might not be bullying to you. A manager may have to tell you something that hurts your feelings to help you do your job. If your boss screams at you for being late, for instance, you might think that’s horrible… Most commonly, bullying consists of repeated verbal harassment. If it becomes physical there are existing legal tools to deal with it, such as assault and battery. Bullying behavior typically comes from somebody in a position of authority at a company. A bully can be a co-worker, but it’s more commonly associated with a boss and particularly with an immediate boss, as opposed to someone running the company.”

Other areas where credibility must be determined include investigation interview statements. Once it has been decided that a complaint warrants an investigation, it will be important to determine the credibility of statements made by the complainant, subject (the accused) and any witnesses. During investigation interviews, investigators must take note of physical and vocal indicators, as well as any relationships between employees, in order to determine if any bias exists that could be influencing their statements. We cover this topic in greater detail in our post “Investigation Interview Questions to Determine Credibility.”

The interview element of a workplace investigation isn’t easy. Interviewing becomes increasingly difficult when there are conflicting responses from candidates you interview. Credibility can be sacrificed when there are too few or too many people interviewed. If the complainant and the subject are the only people to interview, it becomes one person’s word against the other. If there are a lot of witnesses, some may have conflicting stories due to bias. The EEOC recommends weighing the credibility of each person interviewed in order to find out what actually took place during the incident.

Factors to Consider:

The EEOC has put together a list of 5 factors to consider when trying to determine the credibility of statements and responses made during the interview process. However, it is also important to note that these are “things to consider” and not the “be all, end all” for determining credibility.

1. Inherent Plausibility:

Is the testimony believable on its face? Does it make sense? You want to watch for the presence and order of key facts presented by everyone interviewed. You may also want to consult any materials in the workplace that could back up the facts of the story- security videos, whereabouts of the employees in the workplace, timing of events, etc.

2. Demeanor:

Did the person seem to be telling the truth or lying? We have put together a helpful resource that you can download here called the “Black Book of Lie Detection”. Take a read through it to learn more about determining how to tell if someone is lying or not.

3. Motive to Falsify:

Did the person have a reason to lie? Does the person feel threatened for any reason? Once again, bias and opinion can sometimes get in the way of telling the truth. You need to consider any connections that people have to the incident or to the complainant and the subject. Could these connections cause them to lie because they know their friend will get hurt? Do they fear retaliation from others for being involved in the interview? Address these issues and enforce your zero-tolerance policy when it comes to retaliation in the workplace.

4. Corroboration:

Is there a witness (such as an eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that validate the party’s testimony? The information gathered from these individuals needs to be weighed and considered for accuracy- if the witnesses have any bias towards either individual involved in the incident, chances are their story will reflect it. Watch for commonalities or discrepancies in witness stories and the claims made by the complainant and the subject in order to get a better picture of what took place during the incident.

5. Past Record:

Did the alleged harasser have a history of similar behavior in the past? Many times, past behaviour is predictive of future behaviour, but is not always the case. It is beneficial to be aware of repeat offenders in the workplace and what conclusions and actions were taken in their previous cases. Our internal investigation software solution, i-Sight, has the capabilities to let you know if the subject has committed other incidents in the workplace, maintains all case records and evidence in past cases and is readily available to you to consult should you need to.