Strategic HR Lawyer

Related to my previous post on Failure to take the Complaint Seriously, is the premise that once an investigation is taken seriously, the organization skimps and cuts corners in order to expedite the resolution of the issue, or otherwise bury the issue under the rug in order to avoid embarrassment or protect an important party in the organization. Examples of this are found when witnesses are permitted to control the timing and length of investigatory interviews because of their “busy schedules.” At times, individuals controlling the purse strings do not want to call attorneys or retain outside experts to conduct investigations for fear of spending money. Again, the 20/20 rule cited before will likely come back to haunt the organization.

Delegating the task of conducting an investigation to the supervisor in charge of the area, either for expedience or convenience sake, will likely by questioned for its perceived lack of objectivity and on the presumption that the supervisor lacks sufficient training to conduct a workplace investigation. Interference also compromises the investigation when the investigator is not given unfettered access to evidence and witnesses. While these limitations may not be overtly stated, internal investigators often are hindered in their ability to be objective merely as a result of their own reporting relationship. In one example, the human resource manager reported to a senior financial officer. There were glaring missteps and omissions in his initial investigation. When later questioned about them, he indicated that he would never question something that happened in his boss’ area of responsibility.

For more, see my book:  Workplace Investigations: Discrimination & Harassment

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Measure something! OK, not anything. Measure something that matters even if in the most rudimentary way. You do not need fancy formulas, spread sheets or calculations. Focus in your area on an expense, a utilization, a loss, etc. and find a way to improve it. If it must be something associated with the company picnic, so be it.

What you do not want to do is measure something for the sake of measuring and ultimately demonstrates no value for your efforts. In my human resources life I would periodically stop sending reports of statistics we generated to see if anyone missed them. In most instances no one did. If someone did, it was usually a bean counter somewhere in the dungeon of finance that no one liked anyway.

Occasionally I also found myself asking human resources professionals what they measure. They would respond with pretty spreadsheets showing turnover numbers or similar statistics. Then I asked them two questions. First, what do you with these fancy spreadsheets? The usual response was that they were given to someone else. Then, I asked them what they learn and apply from them. That was usually the question that resulted in a blank stare.

I would often ask human resources departments if they were good at what they did. They most invariably answered with a resounding “yes.” When I then asked them how they knew, the blank stares returned.

What to measure you ask? It all starts with your business and how your role and department fit into it. What statistics matter in your organization? What statistics matter to the performance of your department? I can’t tell you that all of these things are important in your organization or department but they might be. Only you can decide and only you can determine what these measurements tell you. Here are just a few:

• Cost per hire
• Time it takes for human resources to screen and forward a qualified job candidate to a department
• Turnover (in some meaningful way)
• The extent to which certain benefits you offer are valued in your organization and by whom
• Retention – who stays and who goes and why
  

Posted By Diane Pfadenhauer In HR Strategy | Permalink

One of the greatest compliments any human resources practitioner can receive is a request to attend a staff meeting of department because the manager feels he/she is a valuable contributor and leader. Unfortunately, this does not always happen naturally. In fact, there will be those who will resist your presence. After all, you could be perceived as a spy or you “just don’t belong” there.

Attending a staff meeting allows you to communicate at the business level with employees and managers who may have previously viewed you as completely uninvolved. It will also give you a perspective and understanding of the day to day challenges that the particular department faces. Lastly, it will allow you to learn about how the business operates from a broad perspective and how this particular department fits into the big picture. Find a manger you know and trust to let you sit in on one of their meetings.

At your first staffing meeting, be quiet. Just listen. Let the attendees get used to seeing you around. After all, you were the one that used to plan the company picnic. They are not used to having you involved in their day to day management or doing real work. Do not insult them on their turf by telling them how to do their jobs.

Plan in advance to redirect the meeting if it turns to focusing on human resources issues. Remember, you are trying to get away from a human resources session and begin to create an awareness and perception of you focusing on business. You will be amazed at how your understanding of the department and its operations will positively influence your ability to find solutions to their problems. Show a real genuine interest and the rewards will come in spades!

Posted By Diane Pfadenhauer In HR Strategy | Permalink

How does the recipient of the complaint know how seriously to consider it?  Offhanded comments can amount to putting the employer on notice that something awful is bubbling under the surface.  Unfortunately, these comments may be brushed aside by the untrained or unwary.  The untrained believing that some sort of formality needs to be put forth by a complainant (i.e. in a formal document) or the unwary being too busy to consider the implications of failing to act.

Not everyone who is the recipient of inartful statements by an employee has the skills to decide whether those statements are such that they amount to a claim of discrimination or harassment and should be taken seriously.  Therefore, an effective process must be put into place to ensure that seemingly offhanded comments are directed to the right person to handle.  Thus, when the manager in a hallway overhears something, he/she must be trained at a minimum that this might be something that will result in organizational turmoil or liability.  The process needs to ensure that someone is available that the supervisor can turn to who is qualified to distill this information an act accordingly.  How many times does an employee in litigation allege that he/she reported his/her complaint to management time and time again to no avail?  Quite a bit, the organization that can effectively and quickly pass this information to an appropriate party each and every time will ultimately be able to demonstrate a consistent and fair process that nips potential problems in the bud and resolves issues before they explode.

For more, see my book:  Workplace Investigations: Discrimination & Harassment

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Most organizations sell a product, sell a service or receive funding for their operations. You job is to understand how that money comes in, how it is spent, and how and/or when the organizations makes money. You know that you understand this when you can explain it, in detail, to someone else.

Is your industry contracting, growing or staying the same? Are your company’s profits growing? Are you products competitive? How are your receivables, cash flow, and margins?
Human resources gurus talk about being business partners. You can only be a business partner if you understand business –deeply.

There are many sectors of the economy where experience in a particular industry is vital to being hired in senior levels of human resources. However, in many smaller organizations or at lower levels in the department, industry experience is not always a bar to being hired. The challenge, then, is to demonstrate your interest in learning about this new industry and how your role fits. Many human resources professionals, however, are afraid to ask any questions for fear of looking unknowledgeable or foolish. Little does one realize, however, that people like to talk about themselves.

In technology companies, it is not at all uncommon for the techno-geeks to look down upon the administrative staff because they understandably haven’t a clue about the technology. The real success story comes when the human resources professional puts forth effort to learn and understand the technology.

How should you proceed, you ask?

• Read industry periodicals.
• Find a manager you can trust and ask them to teach you.
• Do external research.
• Learn how the organization makes money.
• Learn how the industry has evolved and where it is going.
• Ask your experts how you can contribute from a human resources perspective.
• Take a course.
  

Posted By Diane Pfadenhauer In HR Strategy | Permalink

Human resources professionals are often referred to as “they.” Usually when described in such a way, there is usually a finger pointing to “over there.” This infers that human resources is somehow distinct and separate from management and employees. When this happens on the part of management it usually stems from the perception or belief that human resources is not business. More specifically, from the belief that human resources cannot help managers solve a business problem they are facing.

Getting involved in business is always easier when you are the new kid on the block. When you are the new human resources professional, you just start getting involved those nonbelievers who would have challenged you if you had been there for a while, will give you the courtesy of getting involved in their business – at a minimum to see what you can come up with.

As the new human resources professional if you are confronted with a manager who is not used to having human resources involved in the management of their business, start with something small that has people/employee implications. This may include:

• Modifying the staffing in the department in order to control overtime.
• Creating job descriptions where they didn’t previously exist.
• Analyzing performance issues, before they come to human resources, which may indicate a training need.
  

The key is to use your expertise to solve THEIR problem. At this point “no” is not a word in your vocabulary.

As the human resources professional who has been around for a while, you need to make a paradigm shift. Assume the worst and start small.

• Take baby steps to get to know your managers.
• Start with a new manager who has joined your organization and make him or her your biggest fan.
• Start with an employee who has just been promoted to management and coach him or her along.
  
• Start with a manger you trust.
  

The key in all of this is to have little successes. These little successes will create fans throughout the organization. Little success will lead to bigger ones and before you know it, you will be well entrenched in the business of the business solving big problems and making lots of money.

Posted By Diane Pfadenhauer In HR Strategy | Permalink

One would think that the decision to call an attorney to guide an employee relations issue or a workplace investigation would be made logically and would be dependent upon the seriousness of the issue or complaint. Unfortunately, however, organizations make such decisions based upon a variety of factors unrelated to the seriousness of the issue or complaint. Much of this failure has a great deal to do with failing to recognize the seriousness of the risk itself and concluding that the organization and its staff are fully capable of handling the matter. All too often the result is the “half-baked” investigation. The organization forges ahead on its own, begins the investigation, and somewhere down the line realizes that the matter is well beyond its capabilities. At this point, counsel is called in who reviews and, at times, modifies the strategy and ongoing investigation. The result is internal turmoil and uncertainty as the investigation must, at times, be begun anew, witnesses are interviewed again and erroneous conclusions undone.

Occasionally, the organization fails to call in the attorney for fear of spending money. Here, the clock watching bean counters get in the way and hope that the organization can muddle through the firestorm without the attorney’s clock running. Organizations that have this concern can do one of two things – replace the bean counters or replace their attorneys. Time and again, this type of thinking is penny wise and pound foolish. Hindsight being 20/20 always advises that in the throes of litigation, the organization would have been far better off from both a fee perspective and organizational dynamic perspective calling in the attorneys to assist it in resolving the issue or complaint at the outset.

For more, see my book:  Workplace Investigations: Discrimination & Harassment

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

One of my biggest pet peeves and one of the biggest things that human resources professionals rely upon as a source of power is touting the law. The law gives you power. The law makes you look smart. If you tell your managers that they cannot do something because it’s illegal, they actually listen to you. On the other hand, if you tell them not to do something because it just makes sense, you are ignored. So what do human resources practitioners do? Cite the law as the basis for all of their decisions and communicate in that manner.

I once knew a human resources manager who cited her outside labor and employment counsel continuously, all the time, to the point where it was nauseating. She forgot several important concepts. First, lawyers give advice on the law. Business people run businesses. This means that lawyers don’t actually tell you what to do. Your job is to interpret what they say and apply it in your business. Second, most of the time when a lawyer tells a human resources person something it is a recommendation. Companies ignore lawyers all the time. Trust me, I know this. Lastly, using lawyers in this fashion gets really expensive. If the human resources professional is calling the lawyer to figure out how to run human resources, that’s a problem.

What the human resources manager in the above example failed to realize is that she did absolutely nothing to help her credibility. In fact, she made herself look incompetent. She could not convince someone to do something because it was right, ethical correct, reasonable, or based on good judgment. Eventually, everyone ignored her and gave up asking her anything.
The problem here becomes even further compounded because once the human resources professional falls into this trap, the constituents begin to question his/her answers. All it takes is one person who knows more about the law than the human resources professional or for the human resources professional to answer incorrectly or mislead someone and he/she will never be believed or trusted again. The biggest insult usually occurs when the human resources professional touts the law to someone at the senior level of the organization who gives up and calls the lawyer themselves.

What the human resources professional in this trap also does not realize is that in most instances her or she is not a lawyer and lacks any and all credibility giving legal advice. So in conversation after conversation, the human resources professional says something is illegal or says that the lawyer made them do it. Eventually the constituents give up and either stop asking or just call the lawyer themselves.

So how do you get out of this mess?

• Become a lawyer. I did. But, it’s really expensive.
• Focus on employee performance and solving real business and employee problems as your source of power.
  
• Use the law to educate managers and employees. It’s not a secret area of knowledge that only you know about.
  
• When you cite the law, cite the law first. Then, discuss with your fellow managers the possible solutions and outcomes to the problem. Your job is to make sure employees are treated in a manner that is fair and equitable. You can advocate for salvaging an employee or to fire an employee. Use judgment and facts in your arguments once everyone is clear what the law is. For the control freaks among us, this is often the hardest. The human resources professional that touts the law is often using it as a way to control or as a crutch.

Posted By Diane Pfadenhauer In HR Strategy | Permalink

As a follow up to my previous thoughts on managing the company holiday party, consider this about facilities, security or the front desk:

Just because you are an expert in managing people, that does not make you an expert in managing security or facilities.  Unfortunately, however, many human resources professionals gravitate toward the thrill of taking on more responsibility (probably under the guise of feeling like they are appreciated or being duped into a false promotion) by taking on the job that most other people don’t want.  Seriously, do you think anyone else in their right mind in your organization would be crazy enough to voluntarily deal with bathroom issues, complaints about the heat or air conditioning, whether someone brought in their identification card today, etc?  Not on your life.  They usually explain that they are too busy doing real work – this could include making money for the company, solving business problems and the like. 

Worse than facilities and security is managing the front desk.  This thrusts the human resources professional into a world of insanity – scheduling the answering of phones, managing the receptionist and worse yet, when the receptionist is out sick, guess who ends up answering the phone?  Someone in human resources. 

So now that the human resources professional has taken on this new responsibility guess who gets all of the nonsensical questions?  You guessed it.  I once heard of a regional human resources manager who received a complaint from another manager about the fact that the toilet paper in the rest room did not rip on the perforation.  Two college degrees, advanced certification and twenty years of experience led to this kind of existence!

So how do you get out of this mess?

• Give it to the CFO.  He or she is likely controlling the budget anyway.  And when the toilet paper does not rip on the perforation, he or she can increase the budget to buy better toilet paper.
• Delegate to someone in your department and let them manage it.  Address only those things that are critical to corporate security, significant issues of safety and the like.
• Hire professionals.  If you have to be tasked with these responsibilities manage them professionally.

Posted By Diane Pfadenhauer In HR Strategy | Permalink

Investigations of workplace misconduct require orderly and methodical practice to ensure that they will pass the scrutiny of lawyers, governmental agencies and other stakeholders if they are challenged.  All too often, investigations are handled in a manner that leaves them open to criticism and challenge.  I should know. I do many of them and, well, am used to others trying to poke holes in my investigations.  After years of doing these, I have found that many of these errors committed are predictable, preventable and repeated over and over again. 

With practical insight, planning and a commitment to a disciplined process, those who are responsible for workplace investigations of misconduct can promote a realistic outcome to what typically amounts to a stressful and often divisive employee relations situation, thereby avoiding the possibility of the situation spiraling quickly in to a sea of uncertainty  Whatever the result or outcome of the investigation, one that is conducted properly not only becomes legally defensible but is also consistent with notions of fairness and justice required by today’s workforce.

I’ll be embarking on a series of tips and techniques to help you the reader more effectively conduct investigations.  While many of these may seem obvious… trust me, organizations and their investigators make these mistakes ALL the time.

For more, see my book:  Workplace Investigations: Discrimination & Harassment

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink