The National Law Relations Board reverses controversial position on internal investigations.
Employers across the country have operated in a sea of gray area when it comes to confidentiality among employees regarding internal investigations. The question remained whether or not employers were able to require employees to keep internal investigations internal while they were in full swing. Prior to the new year, the National Labor Relations Board (NLRB) finally answered that question.
Previously, the National Labor Relations Board (NLRB) had
taken a position that employers could not require employees to keep ongoing
internal investigations confidential because it generally violated labor law. Section
7 of the National Labor Relations Act guarantees employees “the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing.” Universal
requirement of confidentiality could potentially interfere with that law.
Confidentiality in internal investigations was instead dealt with on a
case-by-case basis, with no precedent for blanket confidentiality. This topic
has been in review by the NLRB since May of 2019, but it was only recently that
the board announced that they had reversed their position.
By their very nature, internal investigations are already a big headache for many employers. Further compounding these frustrations is the ideation that no internal investigation can generate meaningful results unless the integrity of the internal investigation is maintained by all employees of the corporation or organization. This new standard of approval by the National Labor Relations Board is a categorical win for employers. The win comes down to one word—duration. In articulating their decision, the majority wrote,
“There are obvious mutual interests to be served by encouraging and allowing employees to report wrongdoing without fear of reprisal from the subject of the investigation. Among other considerations, such reporting promotes the goals of the antidiscrimination statutes by helping employers eradicate workplace discrimination and deal with it promptly and effectively when it occurs.”
This articulation is indirectly evocative of the cycle of
corporate culture, a process by which cause and effect on the parts of both
leadership and employees in pursuit of improved operations leads to a healthy
corporate culture for the entire workforce.
While there are concerns that the future of this reversal
may affect an employee’s ability to organize, the projection of this reversal
is very good news for internal investigations. In any investigation, the
control of information is critical to finding solutions to the corporate
crisis, allowing investigators to use tried-and-true methodology to get to the
root of the problem. With the NLRB finally taking a position that allows
employers to require confidentiality, the integrity of those internal
investigations can now be maintained from the onset, leading to clearer
solutions for the pervasive issues that malign corporations and organizations.
Regardless of the industry, all businesses should be
vigilant with regards to employee theft. Employee theft can come in all shapes
and sizes, from an administrative assistant pocketing some extra Post-Its to
hardcore embezzlement on behalf of leadership. It can be easy to dismiss
repeated instances of employee theft as isolated incidents, implementing
disciplinary action or termination, and moving on with the work week. However,
many executives and managers may not realize that repeated instances of employee
theft could be indicative of a much larger problem in their corporation or
organization.
From a position of leadership, it’s easy to dismiss a single instance of employee theft; the employee is the one who made a choice to steal from their company or organization, and that employee was wrong for doing so. Discipline or termination typically follows, and leadership walks away feeling confident that they’ve removed a bad apple from their barrel. However, pervasive issues with employee theft are symptomatic of a systematic problem within the business or organization that go beyond a single employee’s bad judgement.
Why do employees steal?
The three most common reasons employees steal are not very
difficult to understand.
employees feel as though their employer has wronged them, or their compensation is inadequate.
employees believe that employers insure such losses—therefore it is a victimless crime.
employees know they will not be held accountable if they are caught
All of these reasons may characterize the employee as “disgruntled,” a term with a cultural context that often absolves the employer of any misconduct. When a corporation or organization has repeated instances of multiple employees committing theft, it’s a sign that the corporate culture of the workplace is less than healthy. A single employee pilfering staplers is not symptomatic of unhealthy corporate culture, but 5 employees pilfering staplers is a sign that employees do not feel valued, and therefore do not respect their employer.
The cycle of healthy corporate culture always begins with happy employees, because when employees are happy, they are more engaged, and contribute positively to the productivity of the organization. This pleases leadership, which incentivizes them to make decisions that raise morale, such as rewarding success with pay-raises, benefits, and thoughtful, constructive collaboration. The cycle begins anew with happy employees. Poor corporate culture means that undervalued employees will contribute negatively to workplace productivity. One of the ways poor corporate culture manifests is through employee theft—and it’s not just about profits or staplers. When employees are disengaged from their duties, they’re more likely to take extraneous breaks, or taking longer breaks than permitted, which is theft of company time. This often comes from a rationalized perspective, in which the employee does not feel their own time is valued within the organization, and therefore will place the same perceived value on company time.
Whatever the type of theft, repeated instances of employee theft cannot be ignored. It may be a sign that your business or organization needs a corporate culture audit. A corporate culture audit is like a check-up—when you go into the doctor for a standard check-up, they evaluate all of your major bodily functions for signs of disease or deterioration, and a corporate culture audit is no different. When investigators conduct a corporate culture audit, they evaluate all of your business’s internal operations, hiring processes, and principle employees for roadblocks that hinder productivity and contribute to poor corporate culture. The identification of these pervasive issues will lead to investigators providing leadership with expert recommendations to dislodge the blockage, allowing the cycle of corporate culture to right itself through cause and effect.
If you think your business or organization needs a corporate culture audit, call Lauth Investigations International today for a free quote on our Corporate Culture Audit program. For over 30 years, Lauth has been providing corporations with solutions to stimulate their business. In pursuit of truth, call 317-951-1100, or visit us online at www.lauthinveststg.wpengine.com.
It’s important to remain very organized and transparent when conducting an internal investigation in order to protect the business or organization.
When conducting an internal investigation, it’s imperative that the investigation be comprehensive and impartial from the beginning. Depending on the size and resources of the company, this is not always possible. Corporate investigations, while necessary, can often be a monumental burden to a small business or organization. Many medium to small businesses/organizations do not have the budget to conduct a comprehensive, detailed investigation on an internal issue. This leaves them to their own devices in the pursuit of solving the problem. When there is no team in place to solve internal problems, workplace investigations tend to fall on the shoulders of Human Resources personnel. This means that in addition to their regularly scheduled duties, the HR representative must also embark on a deep dive into the internal complaint, covering all their bases with regards to the investigation. If even a small detail is overlooked in internal investigations, it can leave the corporation or organization open to wrongful termination lawsuits or other types of litigation.
Human resource employees are the salt of the earth within any business or organization. In many circumstances, they are the grease that propels the wheels of progress in internal processes. This means they constantly have multiple projects in-progress and always have a minimal level of supervision for the entire workforce. Factoring in the capacity for human error, mistakes are inevitable in an internal investigation. That’s why it’s imperative for human resource employees to have a comprehensive step-by-step plan when initiating internal investigations. While every investigation will be different and may require a different approach, many of the investigative beats follow the same pattern as outlined by the Society for Human Resource Management:
Conduct a comprehensive intake interview with
the complaining or initial witness, requesting the scaffold information for the
investigation, including the who, what, when, where, how, and why. It’s
important that the employee understand the need for discretion during an open
investigation into the complaint. This reminder for discretion must come with
the caveat denoting any confidentiality rules that would infringe upon an employee’s
rights to discuss their status of employment.
Once the intake interview is conducted, the
complaining witness and other eyewitnesses must put their statements in writing
to document this stage in the investigation.
Diffuse any flaring tensions within the case. The
more elevated the emotions, the more attention that factor of the investigation
requires. Even during an investigation into an open complaint, it’s important
that employees feel safe in their work environment. The workplace must be stabilized
and disciplinary action must be reserved until the investigator has the entire
picture.
Decide if the subject of the investigation—the individual
who is named in the complaint—needs to be placed on administrative leave or
allow voluntary leave during the investigation. It’s important that at all steps
of this process that any established no-retaliation policies be reinforced.
Identify what other resources are needed to
conduct this investigation. Regularly consult with in-house counsel regarding
the legality of the steps you are taking.
Based on the statements collected at intake,
identify the parties that still need to be interviewed and what questions will
be asked in that interview.
Interview the accused with the intent to find
the truth. Transparency is important at every stage of this investigation, so
provide detailed allegations from the complaining employee’s statements, and
allow the accused to provide comprehensive answers to the questions asked. Ask
for witnesses to their version of events. At the conclusion of that interview,
always ask if there’s anything else that the accused would like to add.
Re-interview subjects in the case as necessary
pending any new information or evidence.
Keep meticulous notes at all stages of the
investigation. Due to the possibility of litigation following the conclusion of
the investigation, it is imperative that transparency be maintained throughout.
Avoid editorializing in your notes and record only what you are told. Keep
secondary performance issues separate from the investigation.
Create a summary of your report based on all of
the evidence you’ve gathered and the witnesses you’ve spoken to. Resolve all
factual disputes first, moving on next to the emotional factors in the case.
Again, be sure to consult in-house counsel at all stages of the investigation. Determine
the best course of action at the conclusion of the investigation. Meticulously
document all disciplinary action following the conclusion. Remain alert for
forms of retaliation on behalf of all parties involved in the investigation.
If your business is ill-equipped to conduct an internal investigation, consider hiring a private investigator to find answers. Private investigators can have more flexibility than many other types of investigators, due to having an average case load of 3-4 cases at one time. Private investigators can also mitigate some of the costs of internal investigations by conducting a comprehensive investigation with minimal impact to the daily operations of a business or organization. Call Lauth Investigations International today for a free quote on our corporate investigation services. Or, if you’re seeking a long-term solution in improving your workplace culture, call for a free quote on our corporate culture audit program to improve your business from within. Call 317-951-1100 or find us online at www.lauthinveststg.wpengine.com
When corporations make the investment to evaluate their corporate culture, it’s important that they choose a vendor who offers a comprehensive audit program. With the rise of the #MeToo movement, the Equal Opportunity Commission (EEOC) saw an overall increase of 13.6% of sexual harassment filings in 2018. That’s not counting other filings for discrimination based on age, race, and sexual orientation. This has placed corporations on high alert as the nation’s capitalist climate gears up for change in their workplaces. This means that when leadership opts for a corporate culture audit, it’s important that their money is well-spent, and one of the best moves to make is hiring private investigators to handle the audit.
Many corporate culture audits are performed by independent risk assessment firms, which is to be expected. Risk assessment firms specialize in identifying the weak points in a business from their workforce background to their brick and mortar security. However, if leadership is going to invest in improving their corporate culture, it’s important that they pick a program that offers comprehensive services. While risk assessment firms might employ highly capable auditors capable of identifying security oversight or performing background checks, every business is different, and it’s important that the program selected fit every business true-to-form. That’s where a private investigator can be an invaluable asset.
Private investigators as a profession have a lurid
reputation for following philandering spouses and people suspected of worker’s
compensation fraud. The same tool chest that allows them to perform those
services is the same one that makes them ideal candidates to perform corporate
culture audits. Private investigators have an eye for detail, diligent drive,
and a meticulous ability to evaluate and make recommendations based on what
they’ve observed. These are the types of professionals you want when it comes
to assessing the culture of your business or organization.
Independent risk assessment firms are just as excellent in
identifying the risk factors that put a business or organization at risk, such
as vulnerabilities in their securities, faulty hiring processes, and at-risk
employees based on their history—but what about the human element within a
corporate culture audit? Corporate culture audits are so much more than
comparing documents and surveying brick-and-mortar locations. It’s also about
understanding how current employees function in a workplace ecosystem. Private
investigators, with a wealth of experience in evaluating human behavior and
emotions, can be the boots-on-the-ground investigators who can speak with
current employees and collect data on their impressions of the current work
environment and how the culture can be improved. Some of the questions private
investigators may address include, but are not limited to:
Is
everyone in the company invested in the same things?
What
are the valued differences between your corporation and the competition?
What
are the key measures of success within your company?
What
is the functionality of the leadership in place versus the leadership required
for success?
What
are the environmental factors that are contributing to the decline in culture?
What
is the history of your company’s culture from its foundation?
What
are the subcultures that have formed in your organization and what is their
role within the company?
By answering these questions and calculating the human responses, private investigators can provide executive leadership with recommendations based on more than what exists on paper; for example, the last item on that list regarding the identification of subcultures. Private investigators do not only look at the behavior of individual employees, but also how those employees relate to each other. In workspaces where there are employees of 10 or more, it is hyper-common for subcultures (or groups) to form. This happens when individual employees gravitate towards one another as a result of their shared interests, goals, or gripes. Their comradery can either contribute to the cycle of corporate culture, or undermine it. When a subculture forms because the employees all have similar degrees of dissatisfaction with their job (regardless of the reason), their validation of one another in solidarity can be a cancer within the organization. This is why it’s imperative to hire corporate culture auditors who have a high level of understanding of human behavior—they can provide a comprehensive picture of how their current employees are contributing to the cycle of corporate culture.
While
private investigators may not be able to dismantle subcultures, they can change
the conversation within those subcultures. Groups of employees who bond over
poor treatment from a supervisor or frustration with current internal processes
will have to find other things to talk about once these issues are addressed
and remedied appropriately. This is one of the ways that we improve the cycle
of corporate culture. When employees see pervasive issues being addressed by
leadership, they are inherently more engaged in the process, which can increase
the quality of communication, the level of productivity, and the overall health
of the workplace. Private investigators are some of the best professionals to perform
these audits ultimately because they have a grasp of human behavior that allows
them to accurately pinpoint the issues and make recommendations to leadership.
