On to more of your questions.

What is a presenter to do? We want to give people great information that is practical, nuanced and detailed, yet find ourselves trying to give a full semester of information in an hour. The casualties? The questions. If you are reading this, you may be one of the seminar participants who submitted a question at the Upper Midwest Employment Law Institute and who did not get an answer. As promised, I am featuring those questions and my answers here for the benefit of all. Before I do that, though, thank you for being such attentive and interested learners!

I do so much training in the area of employment investigation, that I inevitably run into experienced investigators who think differently than I do about techniques, approaches, and boundaries in workplace investigations. I welcome the opportunity to hear the perspective of others because there is always room to learn and expand our skill sets. I do, however, find that a particular challenge that I face with some regularity, is worth refuting. That challenge? The approaches I recommend are too “soft” and “touchy-feely” and don’t press hard enough for admissions/confessions.

Every supervisor has heard some version of these words: “I want to tell you something, but I want you to promise not to tell anyone….” These words should be somewhat flattering. It means that an employee trusts the supervisor enough to confide in them and wants the supervisor’s advice. Right? Maybe…and maybe not. In my supervisory training, I tell trainees to treat these words as though someone has just handed them a live bomb. Yes. A bomb.

The EEOC’s announcement that systemic discrimination is a new priority has, in this investigator’s experience, prompted increasing claims that not only single locations but entire organizations across multiple locations are engaging in practices or maintaining environments that constitute systemic discrimination. The challenges of investigating such claims are plentiful, but in some instances, the sheer volume and range of data that must be collected can result in a more solid analysis than a simple case based only on the statements of parties and witnesses.

When I teach classes on investigative techniques, I say emphatically that note-taking is one of the most challenging skills for an investigator (or any interviewer, for that matter) to develop. First of all, there is no template for “good notes” from an objective standpoint. My notes may be neat and tidy, and yours may look like gobbledygook, but that tells us nothing about their usefulness. The gold standard for investigative notes is not their style, their organization, even their general readability. It is that the person who wrote them can reproduce as close to verbatim as possible what was said, and moreover, that they can do this several years after the notes were taken.

The Federal FMLA Blog: Retaliation reports that an employee’s opposition to the denial of FMLA leave to a coworker was found to constitute unlawful reprisal.

Following an investigation that took several months, and created a lot of bad feelings in the workplace, Frank, the manager of the Sales group decided to pull everyone together.

It is widely assumed that when an investigation finds evidence of misconduct that a termination of the “bad actor’s” employment frequently follows. While no hard data is available on the subject, an educated guess based on data that is available suggests that a person found to have violated a harassment policy will more often be disciplined and educated or coached. This is particularly true when the alleged harasser is in a leadership role or brings highly valued skills or knowledge to the organization.

Part of being a good investigator is simply being a good listener. Being open, receptive, encouraging and nonjudgmental goes a long way towards getting people to tell you things. If you do enough interviewing, you soon realize that people have a desire to talk about themselves, to be understood, and to have the listener see the world through their eyes. The good news is that people will often tell us things that they will not tell others. The bad news is that we are getting our information from someone with a definite point of view, and as such, every event or fact they share may well be distorted by their own history, experience or emotions.