The average working American devotes more time to work than to family, leisure, or even sleep. According to the Bureau of Labor Statistics, time spent working beats time spent sleeping by an entire hour.  Given the amount of time and energy we spend at work—plus the fact that conflict is a frequent and natural byproduct of human interaction—it is no surprise that the workplace is a petri dish for all types of disputes and complaints.

In almost any company or organization, the goal of the Administrator, Human Resources Representative, or Risk Manager is often to eliminate these conflicts by quickly determining “what happened” so that the appropriate action can be taken.  In fact, employers must conduct effective and thorough investigations whenever they are put on notice of possible misconduct or risk exposure to a claim for failure to investigate.

An investigation not only satisfies legal requirements and produces the facts of “what happened” but also, if conducted properly, can reduce the chances that the conflict will escalate into a legal claim. The key is to communicate to the complainant that he or she matters and is being heard.  An investigation is not just about the facts.  It is about the people involved and their ability to share their story with someone who hears them.  For what is a story except the meaning and interpretation that a person places on what actually happened?  An investigator may learn the “fact” that Employee Jane did not receive a performance bonus this year.  But what prompted the conflict is Jane’s “story” about what that means to her.  An investigation is just as good a place as any to allow Jane to tell her story.  Often, an employee may not feel heard until they have their day in court—by then, the cost of the conflict has risen dramatically.

Don’t get me wrong.  I am not advocating that workplace investigations take the place of a company’s employee assistance program or provide therapeutic sessions for the witnesses.  What I am proposing is that a company can utilize an investigation as part of its overall program to enforce policy, reduce risk, and cultivate a culture of empowerment.

The first step—demonstrating to an employee that he or she matters when they’ve made a complaint—is the job of the company or organization.  Four ways that a company can show the employee he or she matters is by

(1) taking prompt action;

(2) having a neutral party conduct the investigation;

(3) ensuring confidentiality; and

(4) communicating the results of the investigation.

First, a company’s prompt response to a complaint demonstrates that the company cares about what its employees have to say and is serious about eliminating misconduct or violations of its policies. Ignoring an employee’s complaint is the loudest way a company can communicate that the employee does not matter. Second, having someone investigate who is not vested in the facts or outcome of the investigation signals that the company wants a fair process, regardless of where the chips may fall.  Employees will quickly opine that the employer is concerned only about itself if the investigator is someone who already knows about or was involved in the facts or who is in the employee’s chain of command.  Third, although complete confidentiality cannot be promised, an employer can and should explicitly explain to the complainant that the substance of the investigation will be shared only with those who have a need to know, i.e., the accused, witnesses and the administrative decision maker.  Fourth, employers should communicate to the complainant and the accused the results of the investigation and avoid leaving those parties in the dark.  In any void, new stories and conflicts will undoubtedly appear.

The second step—demonstrating to an employee that he or she is heard—is the job of the investigator.  I tell anyone I am interviewing that my job is “to collect facts,” not to judge or decide who is right or wrong.  That is only partially true.  While I am collecting facts, I am also listening to the story behind those facts.  There is an old adage that says “there is healing in the telling of the tale.”  By using active listening skills, an investigator can create an opportunity to make a human connection.  After showing up, an investigator’s most important task is to listen.  That begins by creating a safe space for the speaker where he or she feels comfortable rather than intimidated.  The investigator should spend a few minutes learning about the employee’s education or work history—or even making small talk about the weather—rather than immediately diving into the allegations at hand.  It may sound trivial but putting interviewees at ease by being interested in the “small stuff” makes it easier to demonstrate later that what they say about the “big stuff” is important to you.

Next, the investigator should limit the amount of talking he or she does and focus on brief comments (“yes” or “uh-huh”) or nonverbal reactions (nod of the head, a lean forward) to the employee’s statements.  The goal is simply to elicit as much of the story as possible.  Using parroting or paraphrasing is extremely helpful in showing the employee that you are listening and understand what he or she is saying.  Noticing body language and nonverbal cues will assist the investigator in following the story.  For example, if Employee Jane says, “No, I never heard John make any sexual jokes at work,” at the same time that she crosses her arms for the first time in the interview, it may be a signal that there is more to explore there.  To successfully parrot back someone’s statements, or notice subtle nonverbal cues, the investigator must be alert and not distracted by his or her own thoughts, judgments or even copious note taking (I recommend investing in a good digital recorder).  These methods convey interest and understanding while still allowing the investigator to remain neutral.

Particularly with the complainant, there should be no time limit on the interview.  The employee should leave the interview with the feeling that they left nothing unsaid, at least as it relates to their complaint. The employee should leave the interview with the feeling that they just spoke to someone who actually cared. By actively listening and conveying a genuine sense of concern, the investigator has the power to create those feelings for the employee.  David Augsburger, author of Caring Enough to Confront, said, “being heard is so close to being loved that for the average person, they are almost indistinguishable.”

A company or organization can greatly reduce the risk of employment-related claims and lawsuits either by training internal staff to conduct investigations with this intent and skill set, or by hiring an outside investigator with these skills. More importantly, it can begin to transform its investigative process from one where “complaints are handled” to one where “employees are heard.”  Only in that kind of environment can you have empowerment.  Only in that kind of environment is there the possibility that someone will tell their story and maybe even leave it behind.

by Nedy Warren

Nedy Warren, Esq. SPHR is a workplace investigator and current Regional Director of Human Resources at ABM Janitorial Services.