Session1 - He Said She Said - impactfoundry.org · 3 What We’ll Cover 800.399.5331 ¨ The importance of credibility in the employment life cycle ¨ Assessing credibility when hiring

California Employers Association

He Said / She Said Assessing credibility throughout the employment life cycle

g www.employers.org 800.399.5331

www.employers.org 800.399.5331 2

100% of Half the Story

3

What We’ll Cover

www.employers.org 800.399.5331

¨  The importance of credibility in the employment life cycle

¨  Assessing credibility when hiring ¨  Conducting an effective investigation ¨  Assessing credibility in workplace

investigations ¨  Avoiding liability in termination decisions


Credibility: the quality of being believed or accepted as true, real or honest

Credibility in the Employment Lifecycle

5

Assessing Credibility When Hiring

¨  Resume (not alone) ¨  Job Application ¨  Interview Questions ¨  Phone references ¨  Background checks ¨  DMV records ¨  Drug Tests


Tools to Assess Credibility

6

Red Flags on Job Applications

¨  Lack of information regarding past employer for reference checks

¨  Reason for leaving past job left blank

¨  Prior salary information left blank

¨  Excessive cross-outs and changes

¨  Applicant cannot recall the name of a former supervisor


Red Flags 1-5 Red Flags 6 - 10

¨  Signature is missing ¨  Applicant does not sign

consent for background screening

¨  Applicant leaves criminal questions blank (ban the box exemption)

¨  Applicant self-reports a criminal violation

¨  Gaps in employment history

7

Post Offer/Pre Employment Testing

¨  Company must pay for exams, all employees must be subject to same exam for same job

¨  Drug/Alcohol Testing – pre-employment

¨  Psychological Tests (no religious belief or sexual orientation questions, caution on these tests)



Employers have an obligation to investigate whenever they learn about a claim of wrong doing. Equal Employment Opportunity Commission (EEOC)

Assessing Credibility In Investigations

9

Claims of Wrong Doing

¨  Formal complaints ¨  Informal complaints ¨  Anonymous tips ¨  Rumors ¨  Third party information ¨  Information obtained during exit

interviews ¨  Graffiti


“Investigations commenced within a few days of the complaint and completed within two weeks have been upheld by courts as timely.” David I. Weissman, Ford & Harrison LLP.

Conducting an Effective Investigation

11 11

Investigation Basics

The best investigator is one who is neutral,

experienced and

objective.

-EEOC

1. Interview Prep – gather the facts, prepare questions 2. Introductions with complainants, subjects and witnesses, maintaining confidentiality 3. Interview the complainant first – use templates 4. Interview the subject (the accused) second 5. Interview any witnesses last 6. Assess the credibility of each interviewee 7. Interview wrap up with each person 8. Reaching a determination (conclusion)

12

Background Questions Set Tone


Gauge the willingness to answer questions, the reliability of his or her responses, and create a relaxed environment. Examples: ¨  How long have you worked for the company? ¨  What are some of the responsibilities of your role

in the company? ¨  How would you describe the company’s culture?

Establishing rapport causes people to relax and trust

you and gives you a baseline for future questions.

13 13

EEOC Questions for Complainant

Take care to avoid

expressing pre

determined conclusions

Use a template of questions

¨  Who committed the alleged harassment? What exactly occurred? When did it occur and is it still ongoing? Where did it occur? How often did it occur?

¨  How did you react? ¨  How did the harassment affect you? Has your job been

affected in any way? ¨  Are there any persons who have relevant information?

Was anyone present when the alleged harassment occurred? Did you tell anyone about it?

¨  Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?

¨  Are there any notes, physical evidence, or other documentation regarding the incident(s)?

¨  How would you like to see the situation resolved? ¨  Do you know of any other relevant information?

14 14

EEOC Questions for the Subject/Accused


Take care not to give the impression that he/she is presumed guilty.

Watch for tone and body language.

Make this a conversation not an interrogation.

¨  What is your response to each allegation?

¨  If the subject claims that the allegations are false, ask why the complainant might lie.

¨  Are there any persons who have relevant information?

¨  Are there any notes, physical evidence, or other documentation regarding the incident(s)?

¨  Do you know of any other relevant information?

15 15

EEOC Questions for Third Parties


The investigator should refrain from offering his or her opinion.

Deeper questions must be tailored case by case…

Witnesses can help you determine the accuracy of the complaint. ¨  What did you see or hear? When did this

occur? Describe the alleged harasser’s (persons) behavior toward the complainant and toward others in the workplace.

¨  What did the complainant tell you? When did s/he tell you this?

¨  Do you know of any other relevant information?

¨  Are there other persons who have relevant information?


If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility.

Assessing Credibility in Investigations

17

EEOC Credibility Determinations

1.  Inherent plausibility 2.  Demeanor 3.  Motive to Falsify 4.  Corroboration 5.  Past Record

18

1. Inherent Plausibility


Inherent plausibility: Is the testimony believable on its face? Does it make sense? ¨  Did the person’s chronology of any events he

or she related differ greatly from the chronology of any other interviewees?

¨  Did the person give you a plausible explanation of why an issue may have been raised?

¨  Was the person forthcoming or did you have to “pull” information from him or her?

19 19

2. Demeanor


55% of our messages are communicated through our physical behavior and appearance.

-Prof Albert Mehrabion

Demeanor: Did the person seem to be telling the truth or lying? ¨  What was the demeanor/”body language”

of the interviewee? ¨  How did he/she react to the allegations? ¨  Does this person inspire confidence in

the listener? ¨  How does the interviewee’s demeanor

compare to the way they “normally” act?

20 20

Black Book of Lie Detection


If you want to increase your chances of getting to the truth you need to use all of your senses.

1. The suspect nods or shakes their head in a manner inconsistent with the answer they have given. 2. The suspect rubs their forehead or strokes the back of their neck with their hand. 3. Delayed nodding in support of an answer they have just given. 4. Perspiring, trembling and blushing. 5. Gulping or finding it difficult to swallow. 6. Touching their nose – The “Bill Clinton Effect”

21

More from the Black Book


7. Placing of the hand near or over their mouth. 8. Rubbing the eye. This trait appears more in men than women. 9. Fidgeting, drumming fingers or rearranging themselves. 10. The suspect uses less emphasis when speaking. 11. Increased shuffling or moving of feet. 12. Avoiding physical contact. 13. Placing objects between you and them when being questioned.

Source: I-sight, www.investigationsystem.com

22

3. Motive to Falsify


Motive to falsify: Did the person have a reason to lie? Will lying benefit them? Are they protecting someone? Fear of retaliation?

23

4. Corroboration

Any witness testimony or physical evidence? ¨  testimony by eye-witnesses (were they credible?) ¨  people who saw the person soon after the

alleged incidents or who discussed the incidents with them around the time that they occurred

¨  Did the interviewee make any admissions during the interview?

¨  Was the person’s version of the facts different from anyone else’s version?

¨  Written Documentation?: Written statements, diaries, logs, time sheets, payroll logs, photos

24

5. Past Record


Past record: Did the alleged (harasser) have a history of similar behavior in the past? Is there any Circumstantial Evidence? Things the accused has said or done in other situations which make it more likely than not that the fact(s) in dispute actually happened?


Taking immediate and appropriate corrective action may result in an apology, more training, discipline, suspension or discharge.

Reaching a Determination (conclusion)


Ending an employment relationship properly will have a huge impact on reducing your company’s liability. There is no need for drama or disrespect.

Ending the Employment Relationship

27

What To Say When Firing Someone 1.  Schedule a meeting in private location

¤ We need to discuss some issues today at 4. 2.  Be honest, polite and businesslike

¤  I have some information I need to give you. 3.  Stick to the facts

¤  We’ve finished our investigation… 4.  Be Brief and specific

¤  Today is your last day of work. 5.  Don’t delay the news - 10 minutes or less

¤  Let’s review the final paperwork…

28

How Important Is It to Fire Someone the Right Way?

Not Treated With Respect

Considered suing

Sued employer

Did not sue

71%

19%

Treated With Respect

Considered suing

Sued employer

Did not sue

96%

1% 3% 10%

29

CA Required Termination Paperwork

¨  “Notice to Employee as to Change in Relationship” ¨  COBRA forms – if the employee receives health

insurance ¨  EDD “For Your Benefit” pamphlet (Form DE 2320 EDD) ¨  Final paycheck (at time of termination or within 72 hours)

with all accrued vacation/pto ¨  HIPP – Notice to Health Insurance Premium Payment

Best Practices

¨  Have a witness present. ¨  Have the employee sign a voluntary resignation form if applicable. ¨  Conduct an exit interview or allow the employee to take it home . ¨  Use a termination checklist, signed off by both the employer and

employee, stating each party has received what it was owed.


Catran v Rollins Hudig Hall International Inc., 69 Cal Rptr 2 900 (1997) EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors

Make sure you have the WHOLE Story!

31 31

Here to Support Employers!

employers.org 800-399-5331

Phone Advice

Investigations

Employee Handbooks

Recruiting

Training and Development

If you liked what you heard today, there’s more where that came

from.

Thank you for completing your evaluations!

HR Check Up Giveaway

32 www.employers.org 800.399.5331

Documents

Session1 - He Said She Said - impactfoundry.org · 3 What We’ll Cover 800.399.5331 ¨ The importance of credibility in the employment life cycle ¨ Assessing credibility when hiring