FMLA— HR’s Own Personal Migraine

FMLA—HR’s own personal migraine. (Migraine people, may have terrible headaches, but never so bad that they don’t know exactly how many days and hours of FMLA they have left.)

Successful management of FMLA is very much about careful attention to forms and schedules.

Stacie Caraway is a member of Miller & Martin PLLC in Chattanooga, Tennessee. Her remarks came at BLR’s Advanced Employment Issues Symposium, held recently in Nashville.

FMLA Documentation

Some FMLA conversations can be oral, but most need to be documented. For example, Caraway says, If an employee asks, “Am I eligible for FMLA leave?” you can respond orally; but if the person requests leave, you respond with documentation.
You may request, as appropriate:

•Adoption/Foster Care/ Birth Documentation. There’s no DOL form for this, Caraway says, because this is not a medical request, it’s a request for a report of a legal proceeding.
•Exigency documentation. Qualifying exigency statement and supporting documentation or DOL form WH-384
•Medical Certification. DOL Medical Certification form, regular (WH-380) or military (WH-385)
You will also use the following forms:
•Notice. DOL Notice of Eligibility and Rights & Responsibilities form (WH-381), attach to WH-380.
•GINA Disclosure attachment. (Technically, Caraway says, this is only required when the employee is requesting leave for his or her own medical condition. The statement will generally provide a safe harbor in the event that the medical professional reveals genetic information.)

Who Can Complete Certifications?

Who can complete an FMLA medical Certification form? It’s a long list, says Caraway. First, doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices and the following state-licensed professionals:

•Podiatrists
•Dentists
•Clinical psychologists
•Clinical social workers
•Optometrists
•Chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-rays to exists)
•Nurse practitioners
•Nurse-midwives
•Physicians’ Assistants (if functioning within the scope of their licensed practice)
•Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts
•Any other health care provider recognized by the employer or the employer’s group health plan benefits manager
•Also, any of those listed above who practice in other countries, if they are authorized to practice in accordance with the law of that country and are performing within the scope of their practice as defined by such law.

Can You Push Back Against Doctors?

You can push back if forms are incomplete or unclear, Caraway says. Generally, do not accept “unknowns,” she adds. (Duration and frequency “unknown.”) If you accept “unknowns,” and especially if you accept them because you do not want to bother the employee or the doctor, then you’re at fault when things spin out of control.

Remember, says Caraway, the regulations do clearly put the onus on the employee to provide a complete and clear form. If the employee doesn’t do that, you may deny leave.

Also check the form for internal consistency and be sure that an authorized person signed the form.

You can contact the health care provider directly as long as:

•You “clarify” and “authenticate” only; no requests for “additional information”
•No direct supervisor contact
•Give the employee a chance (and 7 calendar days) to “fix” the form (notify the employee in writing and indicate in writing what needs to be done to make the form acceptable)
•Execute a HIPAA release if required by health care provider.

Remember, warns Caraway, this point in the FMLA proceedings is your first and last chance to use second and third opinions for 12 months.

When Provider and Ailment Don’t Match

You can also push back, says Caraway, if the provider and the condition don’t match. For example, if the OB-GYN is certifying migraines or the podiatrist is certifying depression.

Today's HR Daily Advisor Tip: Stacie Caraway is a member of Miller & Martin PLLC in Chattanooga, Tennessee, Summarized & edited for use in this blog.

The Whitford Group, TheWhitfordGroup@aol.com, 704 298-2115

The 7 Types of Discrimination Your Managers and Supervisors Must Avoid

Discrimination, the dark side of fairness, plus an introduction to the famous "50/50": the compendium of 50 employment laws in 50 states.

Nondiscrimination is the legal side of fairness. Illegal discrimination comes in many forms, some obvious and overt, some subtle and hard to spot. Here's what to avoid:

1: Overt discrimination (I don't like Xs)
This is the out-in-the-open type of discrimination that most people think of when they hear the word. For example:
•I don't like to work with [women, men, old people, white people, black people, Asian people, disabled people].
•My customers don't like to deal with [women, men, old people, white people, black people, Asian people, disabled people].
•I don't like to hire [young women because they get pregnant and go on leave].
•I'm not promoting [anyone over 40—they don't have enough energy].

2: Stereotyping (Xs can't X)
Stereotyping usually takes the form of "Xs can't X."
•Women aren't strong enough.
•Men aren't compassionate enough.
•Xs aren't smart enough.

3: Patronizing (Xs shouldn't X)
This is a special form of stereotyping that seems well-intentioned, but is, in general, discriminatory. For example:
•Terry is active in the community; he/she won't want to relocate.
•Parents with young children shouldn't travel.
•Women shouldn't travel alone.
•Pregnant women can't [travel, lift, move, be stressed].

4: 'Avoidance' Discrimination
Some managers try to play a game of avoidance discrimination. They say, "If I can get in trouble talking to X, no problem. I'll never talk to X." Don't use this thinking; it is discriminatory and it won't fly.

5: Playing favorites (I always turn to my friends)
All managers have groups with whom they feel most comfortable. But if you always turn to that group when you need to hire, you are discriminating. And you've got friends at work with whom you're comfortable. If they always get the plum projects, bonuses, and promotions, you are discriminating.

6: De facto (I just never seem to hire Xs)
One of the more subtle forms of discrimination is called "de facto." In these situations, there are never any direct statements against hiring or promoting certain types of people—it just never seems to happen. For example, you're not against hiring women in a certain job, but although many qualified women have applied, of the last 50 hires, all 50 were men.

7: Reverse discrimination
Reverse discrimination means discrimination against someone as a result of your attempts not to discriminate against someone else. You probably don't have significant exposure unless you have a very strong, quota-type program favoring one protected group.
Today's HR Daily Advisor Tip: Summarized & edited for use in this blog.

The Whitford Group, TheWhitfordGroup@aol.com 704 298-2115

Religious Accommodation Requests—Deal Delicately, But Deal

Requests for accommodation on religious grounds are often tricky—What's a belief? What's a religion?—but they're going to come up and you've got to deal with them.

The following are some suggestions to help employers reduce the risk they will be accused of refusing to accommodate a sincerely held religious belief that affects an employee at work.

Tell your employees you will make reasonable efforts to accommodate their beliefs.
Provide specific instructions in your handbook for employees to use when asking for an accommodation.
Train your managers on how to handle requests for religious accommodation, including using an interactive process and considering alternatives to the particular accommodation requested if it would pose an undue hardship.
Don't assume you know what is and is not a religious belief or practice. (Not long ago, there was a plaintiff who argued that she belonged to the Church of Body Modification, meaning she had to wear multiple piercings; the court accepted that, even though she lost her case for other reasons. Another plaintiff argued that she wore a nose ring to conform to her Nuwaubian religion, but the jury didn't buy it.)
Stay away from narrow or inflexible requirements for information to determine whether an accommodation is needed for a religious belief or practice.
Consider adopting flexible leave and scheduling policies.
Carefully evaluate requests for exceptions to dress and grooming rules for religious reasons.
Allow workplace facilities to be used in the same manner for religious and nonreligious activities that are not related to work.
If you refuse an accommodation request, explain to the employee why it's not been granted.
Federal Law on Religious Accommodation
Title VII of the Civil Rights Act of 1964 prohibits religious discrimination by employers with 15 or more employees. To be more specific, under Title VII:
It is unlawful to discharge or otherwise discriminate against or harass applicants or employees on the basis of religion.
Employers must provide reasonable accommodation for an employee's religious beliefs or practices, unless it would cause the employer an undue hardship.
Employers may not discriminate against an individual based on his or her association with a person of a particular religion. For example, it is unlawful to discriminate against an employee who is a Christian because he or she is married to a Muslim.
It is unlawful for an employer to retaliate against an individual for opposing discriminatory practices, or for filing a charge, testifying, or participating in an investigation, hearing, or other proceeding under Title VII.

Exemptions

Title VII does permit religious corporations, associations, educational institutions, or societies to hire only individuals of a particular religion to perform work connected with the organization's activities.

What Is a Religious Practice?

According to the Equal Employment Opportunity Commission (EEOC) guidelines, religious practices include traditional religious beliefs, moral and ethical beliefs, and beliefs (including atheism) that individuals hold "with the strength of traditional religious views."

The fact that an individual's beliefs are not espoused by any religious group or are not accepted by the religious group to which the individual professes to belong will not determine whether the belief is a religious belief.

However, beliefs are not protected merely because they are sincerely held (e.g., many individuals adhere to a vegetarian diet for purely secular reasons). According to EEOC, religion typically includes ultimate ideas about "life, purpose, and death."
When Is Reasonable Accommodation Required?

Employers are required to reasonably accommodate religious practices unless accommodation would cause an "undue hardship" on the conduct of business.

Undue hardship may be claimed by an employer in situations where accommodating an employee's religious practices would require more than ordinary administrative costs. Undue hardship also may be shown if changing a bona fide seniority system to accommodate one employee's religious practices denies another employee the job or shift preference guaranteed by the seniority system.

Factors to be considered in determining whether an accommodation is an undue hardship include:

the size and nature of the business
the type and cost of the accommodation required
notice of the requested accommodation
An assumption that many more people with the same religious practices as the person being accommodated may also need accommodation is not evidence of undue hardship.
Options for reasonable accommodation include:
flexible arrival and departure times
floating or optional holidays
flexible work breaks
use of lunch time in exchange for early departure
staggered work hours
permitting an employee to make up time lost due to the observance of religious practices

Alternatives for accommodation might also include substituting workers, exchanging employee hours, planning flexible work schedules, transferring employees, and changing job assignments.

In order to facilitate accommodation, an employer should consider publicizing its policies regarding accommodation and voluntary substitution; promoting an atmosphere in which such substitutions are favorably regarded; or providing a central file, bulletin board, or other means for matching voluntary substitutes with positions for which substitutes are needed.

Today's HR Daily Advisor Tip: Attorney Regina Petty, Petty is with the San Diego office of law firm Fisher & Phillips, Summarized & edited or use in this blog.

The Whitford Group, TheWhitfordGroup@aol.com, 704 298-2115

No Background Screening? Call Yourself 'Defendant' and 3 Myths of Background Checking

Every employer has a legal duty to exercise due diligence in hiring, says attorney Lester Rosen. What If you don't do background screening? According to a recent California survey, Rosen says, employers lose 60 percent of negligent hiring cases with verdicts averaging about $3 million, and average settlements around $500,000 plus attorney fees.

An employer can be sued for negligent hiring if it hires someone who it knew, or in the exercise of reasonable care should have known, was dangerous, unsafe, dishonest, or unfit for the particular job.

Courts tend to assume that if you could have known, you should have known, says Rosen. So how much checking should you do? The jury will tell you, Rosen says.

Rosen, who is CEO of Employment Screening Resources in Novato, California, made his remarks at the SHRM Employment Law and Legislative Conference, held recently in Washington, DC.

EEOC Implications of Criminal Records

The EEOC says that you cannot automatically disqualify an applicant based upon a criminal conviction without a business justification, taking into account the nature and gravity of the offense, nature of the job, and time elapsed, says Rosen.

Also, he says, be aware that some states and cities have "banned the box" to promote a second chance for convicted felons. (That is, they don't permit a question about criminal records on application forms.) Their focus is getting people back to work, Rosen says.

Yes, you too probably want to give people who have made mistakes a fair chance, but you also have to promote a safe workplace.

What about arrest records? Arrests are of limited use, Rosen says. You need to locate and evaluate underlying behaviors if possible.

Application Forms

It is critical, Rosen says, to specifically ask if the applicant has been convicted, or has pending charges (unless regulated by a "ban the box" rule). In addition:

•Use the broadest legal language about both felonies and misdemeanors. Don't leave out misdemeanors, Rosen says. Misdemeanors sound like petty crimes, but some serious crimes are misdemeanors, for example, some forms of assault or stalking.
•Mention on the application form that a criminal conviction does not automatically eliminate a candidate from consideration.
•Also state that any material lie or omission can constitute grounds to terminate hiring or employment.

Past Employment Checks Are Critical

Past employment checks are as critical as criminal checks, Rosen says. Verify employment to determine where a person has been (even if you only get dates and job title), says Rosen. Otherwise you are hiring a stranger.

Look for unexplained gaps in past employment. Search out locations of former employers so you know where to search for criminal records. (Remember, Rosen says, there are over 10,000 courthouses in U.S.; you need to know where to search.)

If you can verify that a person was gainfully employed in the last 5-10 years, it is less likely that he or she spent long periods in custody, Rosen says.

Be aware, he adds, that about 40 states (including NC) now provide some form of immunity for past employers giving good faith references. But even if you don't succeed in getting reference information, just attempting to and documenting the effort demonstrates due diligence.

Parting Shot

To indicate the kind of people you'll be dealing with if you don't do checks, Rosen told of the client who, when admitting his guilt for a murder, said, "but look at all the people I haven't killed."


The Three Due Diligence Myths of Background Screening

The biggest myth in background checking is that there is some grand online database to check and then you've done your due diligence. Not so, says attorney Lester Rosen.

Here are three of his myths:

Background Checks Myth 1. There is a national database available to private employers for checking criminal records or false credentials, such as education or employment.

Contrary to popular belief, there is no such national database, despite some advertisers claims to the contrary, says Rosen.
Furthermore, he says, FBI fingerprint checks are only available when mandated by law (e.g. for teachers and child care workers).
Unfortunately, he adds, the primary method for obtaining criminal records is to physically look at each relevant courthouse! And there are about 10,000 courthouses in America with court records in over 3,200 jurisdictions.

Beware of using commercial databases as a primary tool for records checks, Rosen cautions. There are substantial issues with accuracy, completeness, and timeliness, and false positives and false negatives are possible. They can be useful as a back-up or secondary tool. In some states, use is very limited (e.g., CA, NY & TX).

If you do get "hits" with such a system, the hit should be re-verified at the courthouse for accuracy and current status, he adds.

Background Checks Myth 2. Due diligence means perfection.

Unless set by a statute for your industry, Rosen says, due diligence is a moving target that is determined by a jury, based on evidence in the trial concerning injury, foreseeable risk, duty of care, and causation.

Nevertheless, to pass due diligence scrutiny, you just need to show that you did the best that you could be expected to do, not that you did a perfect investigation, Rosen says.

Naturally, he adds, high risk employers, such as firms that send workers into homes, will have a higher duty of care. Workers in uniform have the "color of authority," Rosen says.

If you haven't done due diligence, Rosen says, typical defenses won't help you. For example, don't try to claim that:

•A background check would not have revealed any red flags or lack of causation
•Conducting a check would have been too costly
•The applicant lied
•Others firms in our industry do not conduct background checks

Background Checks Myth 3. You can automatically disqualify an applicant based on a criminal conviction without a business justification.

You may not automatically deny employment based on a criminal conviction, says Rosen. The EEOC requires that you take into account the nature and gravity of the offense, nature of the job, and time elapsed.

However, if the person lied on the application, then the falsehood can be the grounds to deny employment.

Today's HR Daily Advisor Tip: Attorney Lester Rosen, Summarized and Edited for use in this blog.

The Whitford Group, TheWhitfordGroup, 704 298-2115

Careless Documentation: Key Evidence Against You in Court

If you're not careful with your documentation, says Attorney Allison West, you're probably creating evidence that your employee's attorney can use against you in court. In today's Advisor, her do's and don'ts.

Employment law attorneys aren't allowed to say "document," West says; they are always required to say "document, document, document." There's a good reason for using the famous three words, she adds, because documentation is that important:

•It gives you credibility.
•It's how you show the world that you did what you say you did.
•It allows you the opportunity to see your decisions in black and white.
•It shows that you treated employees with fairness and consistency.
•It's Exhibit A when you go to trial.

West, principal at Employment Practices Specialists in Pacifica, California, offered her suggestions at SHRM's annual conference and exhibition, held in Las Vegas.

To move toward better documentation, start by thinking through who will be looking at your documents down the road, says West. It could be a fact finder, an investigator from the EEOC, or a representative of a state agency.

Or it could be a jury. And who sits on a jury? People who will be comparing your behavior to that of their own employer and to what they think is right. ("I had a manager just like that—and now I can get back at him.")

Do's, Don'ts, and Rules for Bulletproof Documentation
West offers the following Do's and Don'ts for documentation.
Do create contemporaneous documents. Do documentation at or around the time something happens. If you wait 3 weeks, it's a little suspect, West says. And if there's no documentation, it's easy for the opposing attorney to beat you back.

Don't ever backdate documents. If you are documenting late, fine, but don't backdate. That will be found out, and you can be picked on and chopped up during cross-examination.

Do include a full date. West notes that if there is no date at all, it's very suspect. Especially under cross-examination, witnesses will find it very hard to state a date with accuracy.

West offered the case of a worker who was terminated during pregnancy leave. The only document to support the company's contention that her termination was part of a RIF was one sheet of paper, lined, yellow, 8 1/2 by 11.The page had three different entries in different colored inks, including one that had the employee's initials. And it had a day and date, but no year.

It's hard to convince anyone that that's a meaningful document. Remember, says West, that when you are in court, this document is going to be there, blown up to the size of New Jersey.

So, she says, do include the full date, and include full names at least once. After that, initials or first names are OK.

Do get the employee's signature. When possible, obtain the employee's signature to verify that you had the discussion. You'd like a way to show that you have shown the document to the person.
Don't use inflammatory phrases. For example:

•I thought someone like you would be above this
•Everyone on the team gets it but you
•You should know better

Be complete and unambiguous. For example, "You'd better turn things around, or else" just doesn't mean much.

Don't make inappropriate conclusions of fact or law. For example, "This is the worst case of harassment I've seen." Or employee Sandy says: 'Chris is making me uncomfortable." Manager documents: "Sandy is being harassed by Chris."

There's side problem with this, says West. Now the employee now thinks: "Oh, I thought I was just uncomfortable, but now I realize I'm being harassed. Hmmm."

The easiest thing to do, West says, is to document the employee's words, and, in conversation, to mirror back employees' words: "I'm sorry it's making you uncomfortable."

Don't use generalities, overstatements, and exaggerations. For example:

•Nothing seems to get through to you.
•You're always late, you don't care about your job.
•It appears you don't care.
These statements are too vague, says West.
Don't use absolute expressions unless completely accurate. For example:

"You are always late." "Actually, I was on time today," the employee will say. This completely takes the wind out of your sails.
"You never volunteer to stay late." "Yes, I did on March 2."

"Always," "every time," "invariably," and similar words cast a negative tone, are not accurate, and suggest bias. Instead, says West, use "often," "typically," etc.

Today's HR Daily Advisor Tip: Attorney Allison West

The Whitford Group, TheWhitfordGroup@aol.com, 704 298-2115

Non-Competes Must Be Tied to Actual Competitive Threat

Last month, the Virginia Supreme Court held that a non-competition provision in an employment agreement was invalid because it prohibited the employee from working for a competitor in any capacity.

In Home Paramount Pest Control Cos. v. Shaffer, the court stated that in order to be enforceable, the agreement could only prohibit the former employee from engaging in activities for a new employer that actually competed against his former employer. This ruling overturned prior Virginia court decisions that upheld the broader restrictions.

The Virginia decision echoes similar recent holdings in North Carolina and other states. Employers with non-competes that simply prevent the employee from going to work for a competitor are increasingly likely to face claims that the restrictions are overbroad and unenforceable. Similarly, restrictions against soliciting any of the former employer's customers are likely to be invalidated if they are not limited to customers with whom the employee worked, or had access to confidential information regarding.

These cases point out the need to carefully tailor restrictive covenants to address the actual competitive threat posed by the particular employee. In the Carolinas and Virginia, these limits are especially important, because courts in these states generally will not re-write restrictions found to be overbroad. The covenants stand or fall based on their existing terms.

Employers with older employment contracts containing non-competes should review these documents to determine if they conform to these evolving legal standards. If not, the employers should consider replacing the older language with new provisions intended to narrow and better define the scope of actual competitive activity prohibited under the agreements.

ParkerPoe, EmployNews, Issue 647, December 2, 2011

The Whitford Group, TheWhitordGroup@aol.com, 704 298-2115

Apparent Tampering With Videotape Leads to Crippling of Employer's Defense to Discrimination Claim

When an employer learns of a threatened or filed claim against it by a current or former employee, one of its first reactions should be to make certain that it is preserving all evidence potentially relevant to the case.

This action is ordinarily accomplished through issuance of a "litigation hold" instructing all persons with possible relevant information to make sure it is maintained, even if such preservation is contrary to normal company policy regarding retention and destruction of paper or electronic records. While a seemingly simple step, a recent decision by a federal court in a discrimination claim brought by the EEOC demonstrates the disastrous consequences of failure to take these steps.

Last month in EEOC v. Dillon Cos., a federal district court in Colorado imposed harsh sanctions against an employer resulting from the destruction of a videotape that supposedly corroborated its legitimate business reasons for terminating an employee who claimed disability discrimination.

The security camera tape supposedly captured a confrontation where the plaintiff pushed his manager. The employer later contended that the master tape had been tampered with by an unknown person, and that the three copies made had disappeared.

In response, the district court imposed serious sanctions on the employer. The court concluded that the tape had been destroyed in bad faith, triggering an "adverse inference instruction" to the jury that it should assume that the videotape would have shown conduct contradicting the employer's version of events. Also, the employer was not permitted to introduce supporting testimony of other employees who witnessed the confrontation.

Based on these sanctions, the employer has very little chance of prevailing at trial, and may be forced to settle the claim on terms favorable to the plaintiff. The clear lesson from this example is that evidence preservation is absolutely crucial to the successful defense of any legal claim, including employment disputes.

Human resources, legal counsel, IT, and other areas with responsibility over the dispute and information collection must work in concert to make certain that the employer cannot be accused of trying to hide damaging evidence.

ParkerPoe, EmployNews, Issue 650, December 30, 2011

The Whitford Group, TheWhitfordGroup@aol.com, 704 298-2115

The Six Ways Attorneys Will Attack Your Investigation

Your employee's attorney's job is to undermine your investigation and point out its weaknesses. Below are the six standard attacks they'll use.

You must proactively prepare to defend your investigation and the decisions you make along the way against the following types of attack.

•The "Neutrality" Attack
•The "Time" Attack
•The "Fair &Thorough" Attack
•The "Taint Free" Attack
•The "Retaliation" Attack
•The "Burden to Remedy" Attack

The Neutrality Attack:

The investigation was not conducted by neutral, trained investigator.

Neutrality can be undermined when the person conducting the investigation:

•Knows either party too well
•Has repeatedly investigated the parties
•Shows a pattern for siding with the employer
•Has disciplined the parties for unrelated claims
•Is subject to job performance evaluations from the parties
•Is privy to private information unrelated to the claim
•Is being "managed" by counsel or management

Suggestion: you should consider bringing in an outside Investigator when:

•No one in-house has been trained to conduct investigations
•The person investigated is a high ranking executive or a member of HR
•The complainant asks for a neutral investigator
•You're opening Pandora's Box (use neutral attorney/investigator)

The Time Attack:

The investigation was not conducted "promptly.
Starting an investigation within one day is ideal, and within one week is crucial.

•The investigation can be underdetermined when there are unnecessary, unreasonable or unexplained delays. HR on vacation is not an excuse.
•Delays create a hardship on the parties. Justify and explain delays.
•Explain significant delays between "Legal Notice" and the onset of an investigation.
•Minimize hardships.
•Suspension of the accused should be with pay.
•Consider having more than one or two people trained to conduct an investigation.

Be sure that:

•You have policies that explain to employees how to make a complaint.
•You have intake procedures for complaints and forms available for making complaints.
•Managers are trained about what to do/say when an employee complains to them.

The Fair & Thorough Attack:

The investigation was not fair to both sides.
The investigation should be thorough with questions asked of parties and witnesses, giving the accused an opportunity to respond to additional information/allegations that surface.

•Don't promise "confidentiality" to parties.
•Don't prejudge beforehand. It is usually not "what you expect."
•Justify or explain why, if one party was not interviewed.
•The witness list should be "organic" and derived from investigatory interviews.
•Interview witnesses on both sides and ask parties about witnesses that can support or corroborate their statements.
•Justify or explain why any witnesses were not interviewed/ interviewed by phone.
•If "everyone" was interviewed, justify or explain why.
•Support credibility determinations.
•Questions should be open ended, not leading. Interviewer must ask "difficult" Qs.
•Evidence that is not available or that was destroyed needs to be explained.
•If "scope" of the investigation is limited, explain and justify questions or information left out for this reason.

The investigation should be well documented. If it is not, it looks like the company may be hiding something. Remember, the investigation is most likely a "defense" in litigation. In this case, privilege is waived as to all statements and evidence presented to the investigator. Nothing is confidential in this case, including the investigation conversations, evidence and conclusions—even if the investigator is an attorney.

The Taint Free Attack

The investigation was not protected from contamination.
The investigation can be "tainted" if:

•The parties and witnesses are not reminded by the investigator to refrain from discussing the investigation with anyone other than the investigator
•The investigation was conducted in an open, non-private setting
•If the investigator discussed the investigation with anyone other than counsel, or specifically delineated individuals
•If the parties discussed the events with any witnesses before they were interviewed
•If the rumor mill or gossip has not been contained
•If the several parties colluded before bringing a claim
•Evidence was purposely destroyed or overwritten

The 'Retaliation' Attack:

One of the parties or witnesses was not protected from retaliation during investigations and afterwards.

Retaliation is its own "complaint" and must be investigated as an independent claim that violates the law and company policy. Investigators can defend against the "retaliation" attack by:

•Suspending the accused, with pay, when necessary, pending the investigation's conclusions (ensuring that the accused knows and understands that this is not a disciplinary action)
•Reminding the parties and witnesses during the interview about the company's policy that prohibits retaliation and ensuring and understanding of the type of conduct that may be construed as retaliation
•Asking parties and witnesses if they fear retaliation or feel they are being retaliated against
•Determining if there was a history of abuse, stalking, threats of violence, damage to property and, if so, taking appropriate security measures
•Having parties and witnesses contact the investigator if they experience retaliation.

Even when you are trying to "protect" the complainant, he or she should never be the one sent home, transferred, or suspended pending an investigation because he or she will claim that this was retaliatory punishment for making the claim. If the complainant insists on staying home, get it in writing that he or she is the one who wanted this and that he or she does not consider it retaliation.

The Burden to Remedy Attack:

The employer's response was not "reasonably calculated" to halt the harassment.

If you are asked to make conclusions and recommendations for disciplinary actions, remember:

•Remedial actions that may be taken by employers include counseling, written warnings, reprimands, probation, suspension, demotion, a shift in the job duties or job location of the alleged perpetrator, training sessions, and termination.
•Remedies should not be pretext to cover-up other wrongdoing.
•The employee should not be terminated for "other wrongdoings" to avoid an internal finding of harassment.
•An employer's ignoring remedial actions recommended by an investigator can demonstrate a failure to meet the "burden to remedy."
•Ongoing misconduct demonstrates a failure to meet the "burden to remedy."
•Damages will accrue from the time of legal notice and are not mitigated unless the harassment stops.

Even when the investigation conclusion does not find that the allegations are valid, it is still acceptable to recommend "refresher training" for the accused. This may not be deemed "remedial" or "disciplinary," but may ensure that inappropriate or non-managerial conduct does not happen again.

It's critical, to have a policy on investigations. Of course, for any company, there are a lot of critical policies. What about yours? Detailed? Accurate? Up to date? In most companies, there are 50 or so policies that need regular updating (or maybe need to be written). It's easy to let it slide, but you can't afford to—your policies are your only hope for consistent and compliant management that avoids lawsuits.

Jody Katz Pritikin, an investigator and seminar leader for Katz Consulting & Associates in Santa Monica California and summarized by The Whitford Group for this blog. Today's HR Daily Advisor Tip

If you need investigative assistance or help with policies and procedures, please contact me at:
TheWhitfordGroup@aol.com or 704 298-2115

Six Essential Skills of HR Management

The 6 Essential Skills of HR Management—How Many Do You Have?

By Stephen D. Bruce, PHR
Managing Editor, HR Daily Advisor

HR Key Skill #1: Organization
HR management requires an orderly approach. Organized files, strong time management skills, and personal efficiency are key to successful HR function. As readers well know, there's a heavy load of regular work and that's to say nothing of the "emergencies." You have to make time and you can't be sloppy.

HR Key Skill #2: Multitasking
On any day, an HR professional will deal with an employee's personal issue one minute, a benefit claim the next, and a recruiting strategy for a hard-to-fill job the minute after. Priorities and business needs to move fast and change fast, and colleague A who needs something doesn't much care if you're already helping colleague B. You need to be able to handle it all, all at once.

HR Key Skill #3: Discretion and Business Ethics
HR professionals are the conscience of the company, as well as the keepers of confidential information. You are the corporate watchdogs, and you need the strength to push back when things aren't right. You have to be absolute in guarding the confidentiality of documents and information entrusted to you.

HR Key Skill #4: Dual Focus
HR professionals need to consider the needs of both employees and management. There are times you must make decisions to protect the individual, and other times when you protect the organization, its culture, and values. Going in either direction, you may have information you can't share. It's part of the territory.

HR Key Skill #5: Employee Trust
Employees expect HR professionals to advocate for their concerns, yet you must also enforce top management's policies. The HR professional who can pull off this delicate balancing act wins trust from all concerned.

HR Key Skill #6: Fairness
Successful HR professionals demonstrate fairness. This means that communication is clear, that peoples' voices are heard, that laws and policies are followed consistently, and that privacy and respect is maintained.

Above are some of the things an HR Professional does on a daily basis, not including the completion of projects like employee handbooks, job descriptions, developing policies and procedures and supervisory & management training. Let's not leave out, ESC & EEOC claims, FMLA/ADA/Workers' Compensation and talent management. Basically, an HR Professional's work is never done.

For assistance in any item mentioned above, please call or email me at:

TheWhitfordGroup@aol.com
704 298-2115