“Show me a man who makes no mistakes,
and I will show you a man who doesn’t do things.”
– Theodore Roosevelt
ACTUAL “CASE HISTORY”: It was January 2003, and Wall Street was abuzz with one of the juiciest and most unusual combinations of gossip, rumor and intrigue it had “enjoyed” in years. One of Wall Street’s largest firms, a U.S. division of a large European bank, had just enjoyed a banner year of sky-high profits. Everyone at the firm rightly expected a very large bonus. Then two things took place that both rocked the firm and riveted Wall Street.
First, bonuses were distributed to all of the company’s U.S. employees in amounts that were far, far less than were universally expected. Some employees received just 10% of what they felt was reasonable, a 90% disappointment. Many were told that, due to circumstances that could not be discussed, they would not be getting any bonuses whatsoever for the year 2002.
Next, somehow, without precedent or warning, someone distributed an email to every employee of the company with an attached list that contained the name of every U.S. senior executive of the company, and his or her respective bonus listed beside his or her name. Every one of the senior executive bonuses was in the millions of dollars, several in the tens of millions of dollars. It was as if, at the Thanksgiving Day table, the first three people to pass around the platters took all of the turkey for themselves, and left only feathers for the others. To say there was an uproar would be a gross understatement.
Employees sprang right into action: lawsuits were threatened, headhunters were contacted, and resumes were distributed to rival firms.
Management sprang right into responsive action, too: it announced that scores of “suspected employees” would be required to submit to interrogations under oath, and that the culprit would not only be fired, but sued as well. Anyone who didn’t readily cooperate would be immediately fired for insubordination.
Kumar, 29, a junior bond analyst, was one of those asked to come to the company’s General Counsel’s office for an “interrogation.” He insisted he had nothing to hide, but he also wondered why he was chosen for an interrogation. Kumar did attend the interrogation, and found it to be insulting, humiliating, and degrading. At the end, he was asked to come back because, he was told, he was a “prime suspect.” He said he needed to think about it.
Kumar was frightened. He called our firm, seeking advice on what he should do, and how he should do it. When he came in he insisted he had nothing to do with the bonus-email scandal, but did confide in us that he was secretly dating a female subordinate, and had improperly charged some restaurant meals that he had shared with his girlfriend to his corporate credit card.
Kumar readily admitted to possibly being unnecessarily paranoid, but he insisted that, in these circumstances, everyone had a right to be paranoid. He felt that the company was seeking a scapegoat, and didn’t want to be the sacrificial lamb. He knew that any involvement in this whole matter could ruin his budding Wall Street career.
He seemed to face being fired if he submitted to an interrogation, and just the same, faced being fired if he did not.
LESSON TO LEARN: Odd as it may be, in over 25 years of helping people with their problems and opportunities at work, it seems more people than ever before are being accused of wrongdoing at work. Are more people misbehaving? Are there more “rules” to violate? Are standards of behavior getting stricter? Is it possible that employers are making up such allegations to avoid paying severance when reducing payrolls? Even if the answer to each of those questions is “yes,” even that does not seem to explain the recent “tsunami” of accusations.
Being accused of wrongdoing at work can actually be worse than being arrested by the police. At least when you are arrested you are guaranteed fair, “due” process, and a right to defend yourself. And if you are arrested, you may be later declared “not guilty.” These “advantages” of being arrested are missing if you are accused of wrongdoing at work.
If you are accused of wrongdoing at work, you have little, if any, rights to an objective investigation, a fair hearing, or review by a jury of your peers. You have no right to have an attorney present with you during any such investigation. The truth is that many, many companies fire employees who are accused of wrongdoing not because the employer believes the accusation to be true, but just to avoid the risk that the company might later be sued by another employee for keeping the “accused” on payroll.
And if you are fired after an accusation is made against you – even a false accusation – you must be honest when you seek your next job, in your interviews, when asked this inevitable question: “Why did you leave your last job?” What can you honestly say? You are, essentially, forced to repeat the allegation(s) against you, and in this way “branded” forever.
It’s for these reasons, and others, that you must be “dreadfully” careful if and when you are accused of any kind of wrongdoing at work. We live in something of a “zero tolerance” society for nearly everything. Sadly, it is so easy to cast an allegation that, these days, you really need to both work “defensively,” and be prepared for the hopefully-never-to-happen nightmare Kumar found himself in.
But don’t make the biggest mistake of all: presuming “it” could never happen to you.
WHAT YOU CAN DO: Here are our Twenty-One (21) Guidelines for Responding to Allegations of Wrongdoing at Work.
NOTE: Not all of these guidelines may be applicable to you or your circumstances. Each should be carefully considered in whatever circumstances you may find yourself, using your best judgment. None of these precautions is a “cure” or “magic bullet,” but each is a potential path or practice to follow to effectively navigate and negotiate your difficult circumstances.
So, if you are accused of wrongdoing at work, consider these guidelines for responding:
1. Limit Expressions of Emotion: In 27 years of involvement in these matters, I’ve never seen emotion help, whether it is anger, sadness, remorse or regret. When an accusation of wrongdoing arises, everybody involved is already a bit anxious and agitated inside, and that goes for employers as well as for employees. Additional gasoline on the fire never, ever helps extinguish it. Instead, a calm, deliberate, reserved demeanor always helps. Sure, that’s easier said than done, but bear this in mind: if your job, career, reputation and family finances may depend on it, surely you should do your best to get it done. [If you can’t halt or limit the emotion – your own or someone else’s – ask for a “recess,” as explained in Precaution 11, below.]
2. Listen Intently: It goes without saying that listening well is an important habit. That applies doubly here, for several reasons, among them: (a) you need to know what you are accused of; (b) you need to know who is/are your accuser(s); (c) you need to know when, where and how you supposedly engaged in wrongdoing; and (d) you need to understand that every fact, no matter how seemingly insignificant, may hold the key to your defense. A single word may be important. So, “open up your ears and your mind.”
3. Take Notes If You Can: As a natural extension of listening well, during any telephone conversation, and in any meeting you attend, ask if you are permitted to take notes. Our experiences is that employers rarely deny employees this right.
4. Ask If Your Telephone Call, or Meeting, is Being Audio-Taped or Video-Taped: Depending on the state in which you live and work, your employer may have a right to surreptitiously audio tape-record or videotape your interactions with them. Regardless of whether they have a legal right to do so, you would be wise to inquire if that is being done. If so, you should object, and ask whether this is permitted by the state in which you live and work. Bring up your valid concern that these days audiotapes and video recordings can be expertly altered and manipulated, even by a relative novice. We suggest you express that you do not consent to being taped, and ask repeatedly and insistently that it be halted. You might ask for a copy of the audio or video when it is completed. [If you are not successful in halting taping, you might consider the wisdom of requesting a “recess,” as explained in Precaution 11, below.]
5. Ask “If I Don’t Cooperate – Immediately – Will That Be ‘Cause’ for Firing?”: As a general proposition, if your cooperation is requested, your failure to cooperate with an investigation at work could be deemed “insubordination,” and hence “cause” for firing. That being said, there is no good reason to presume that is the case, and there is every good reason to ask if that is true here. You might also request an assurance that you will later be afforded an opportunity to present a “defense” if that becomes necessary in your view.
If you are told that you will not be penalized for declining to cooperate, and that you will be permitted to “defend” yourself if you choose to, you should send a confirmatory email to your Supervisor, your HR representative, and your company’s General Counsel to make a record of what you were assured, and that you are relying on those assurance(s).
Will not cooperating with an investigation make you seem “guilty” of the allegation? Yes, to a degree, based at least on most people’s view of human nature. That is something to consider, as well. That is, in good part, why the phrase “for now” is to be used in any request for assurances, and any email memo confirming assurance(s).
6. Ask Questions, Especially If You Are Not Initially Told (a) Who Your Accuser(s) Are, or (b) What are the Accusation(s): For good and important reasons, our laws require that people accused of illegal behavior have a right to (a) know what they are being charged with, and (b) who is/are their accuser(s). That’s what our U.S. Constitution refers to as “due process” of law. The problem is that “due process” does not apply to accusations at work, or other non-criminal accusations. It is for this reason that, if you are not told (a) who is your accuser, and (b) what he or she is accusing you of, you must ask those two fundamental questions. None are more important.
7. Request a Copy of Company Policies regarding Misconduct and Discipline, if Any: Many companies have policies in place to deal with accusations of wrongful conduct. Some require that certain steps be taken, some require that certain procedures be observed, and some even provide the “accused” with certain rights, such as the right to a fair hearing involving colleagues. Do not forget to request a copy of any company policy relating to allegations of misconduct or wrongdoing, as soon as possible, in an email directed to both your Manager and the company’s Head of Human Resources. Keep it short, respectful and note that a prompt response is necessary under the circumstances.
8. If the Accusation MIGHT be of a CRIMINAL ACT, Contact Experienced Defense Counsel Immediately: This point cannot be emphasized enough. If the allegation of wrongdoing is an allegation of conduct that could be considered a crime, you should not hesitate to contact experienced defense counsel in your city or town. What is a crime? The list is near limitless, but the most common “crimes” committed at work include (a) theft of any kind, including theft of trade secret information; (b) unauthorized touching of another person, including a sexual touching; (c) a threat to expose a person to embarrassment unless he or she gives you something of value; (d) a threat of bodily harm; and (e) possession of illegal things, including drugs, handguns and pornography. If you have been accused of any of these criminal acts, or others, it is critical that you contact experienced defense counsel, and consult with him or her as soon as possible, even if it takes you going home early on the basis of a reported stomach ache, headache, or nausea. [See Guideline 11, below.]
9. Be Wary of Seeking Comfort, Support or Assistance from Colleagues at Work: It’s that simple: it’s wise not to seek or expect colleagues at work to provide you with comfort, support or assistance if you are accused of wrongdoing at work, for two important reasons. First, it puts them in a very uncomfortable situation, as they may fear potential negative consequences from “getting involved.” Second, it is unrealistic to expect people to put their own interests (job and career) “on the line” for you. That may sound cynical, but I believe it is true. At the same time, if colleagues at work are witnesses to what transpired, or can establish that you were nowhere near the “scene of the crime,” you should give their names to Human Resources and/or anyone else looking into what actually took place, and then let your colleagues decide, on their own, whether or not to be cooperative and/or truthful.
10. Do not Sign, Admit or Commit to Anything: At least until you have a better idea of what is being alleged, by who, the process and protections, if any, you are entitled to, it is important that you not sign anything of any sort . . . even an acknowledgment of what it is you are being accused of. Lawyers, in particular, sometimes have a way of writing words that can sound so innocent, but in actuality be so damning, that it is safest to simply say, “I am sorry. Even though this sounds so simple, I would rather think before I sign anything, and maybe even ask someone who understands these things better than I do, to look at it for me.” Later on, when things have sorted themselves out a bit, when you’ve had time to consider what the best alternatives are, and perhaps after you’ve had some legal guidance, you can consider signing some sort of acknowledgment, agreement or other document; just not now.
11. Consider Asking for a “Recess”: One thing you should understand is that refusing to “cooperate” or “follow reasonable orders” can be considered “insubordination,” and thus sufficient “cause” for firing. A valuable insight to bear in mind, though, is that you always have a “Free Pass” out of any meeting, conference, telephone call or other workplace situation that is uncomfortable, stressful or anxiety-provoking. What is this “Free Pass” out of “Jail?” It is telling your manager, or HR, or anyone else, that you have a “present physical malady.” More frankly, “I am afraid I must go home now, because I feel sick, and I am concerned that I may throw up . . . or have diarrhea . . . or a migraine headache . . . or might faint.” Such “present physical maladies” are entirely justified reasons to go home, and thus your “free ticket” to leave any meeting or confrontation without being accused of insubordination. Just be certain to send an email afterward to all concerned, thanking them for their understanding and mentioning your “present physical malady.”
12. Ask in an Email if You Have a Right to Have an Attorney Attend With You: It is extremely rare that an employer will permit you to have an attorney with you during any kind of investigative meeting. However, it never hurts to ask; several of our clients have been permitted to have us in attendance. (If you are already fired, though, no one can force you to attend any kind of interview or investigation without legal counsel by your side.)
13. Even If You Can’t Have an Attorney With You, At Least Consult with an Experienced Employment Attorney about the Issues: It is not to be expected that you will be permitted to have an attorney by your side in any workplace interview, interrogation or investigatory session. It would be wise, though, to try to arrange a consultation with an experienced employment attorney prior to attending any such session to discuss what to say, what not to say, and additional thoughts to bear in mind. He or she might even suggest other ways of dealing with your particular predicament.
14. Gather Helpful Information, But Don’t Tamper with Witnesses or Evidence: Common sense dictates that you should consider what “evidence” you can assemble that would tell your side of the story, so that the allegations against you will be disproven. It might be best to sit with pen to paper and make a list of those witnesses, documents, emails and other forms of evidence – including circumstances – that are “on your side.” The next logical step is to try to assemble them all together to present to your accusers.
One critical precaution here: do not communicate with, or even approach, your accuser(s) because any such contact or physical proximity may be characterized by others as intended intimidation of a witness, a very serious matter.
15. Understand, Right Away, that “Others Do It, Too” is Simply NOT a Defense: One thing that you should understand right away is that “everybody does it” is not a defense to any allegation. Saying, in effect, “Officer, everyone on this highway is going 85 miles per hour; therefore you should not give me a ticket for going 85,” is not going to help you. Being singled out may be unfair, discriminatory or even a form of “getting even” for something you did in the past, but that does not excuse it now. I have found many of my clients cannot get over this first, necessary hurdle to dealing with their predicament, but “get over” it you must, if you are going to deal with your own predicament in an effective way.
16. Consider the Possible Wisdom of a Written Response: Sometimes the most effective way to respond to an allegation you’ve engaged in wrongdoing at work is in writing, and delivered by email. There are several advantages to this approach: (a) It is easier to make sure that you write everything you mean to write than it is to say all you mean to say; (b) You can choose your words more carefully when you are writing than you can when you are speaking; (c) Putting something into writing gives you a chance to gain the views, comments and suggestions of others before communicating it to your employer; (d) When it is in writing, it is less prone to misunderstanding, miscommunication and mischaracterization than it would be if it was spoken; (e) Written communication leaves a permanent record of what was communicated; and (f) Spoken communications are more prone to disruption, diversion and distraction.
Written communications should always be transmitted by email, to confirm its transmittal, and the time and day of transmittal.
Once you have communicated the points you wish to communicate, you are free to then offer to speak with your employer or its representative.
17. Don’t Be Afraid to “Call It As You See It”: Many people are afraid to express their true feelings, concerns, thoughts and views for fear that to do so might create a negative impression. When accused of wrongdoing, you must understand that you have a lot at stake, and fear of making a bad impression must be tempered with the real possibility that, if you are not open and honest, you may end up losing your career and reputation forever. If you have a choice between acting in a passive manner, or acting in an assertive manner in these matters, choosing the assertive manner is almost always the wisest course to follow.
18. Sometimes We Propose a Mutually Agreeable Departure, or Other Negotiated Resolution: It is not always necessary – or even wise – to insist on proving your innocence of an allegation. Sure, it is gratifying to have your innocence publicly pronounced, but it is often wiser to seek a “way out” that does least damage to your interests, and preserves your ability to move on with your life. There is an old Yiddish saying that “A slim settlement may be more valuable than a fat lawsuit.”
19. Other Times We Insist on a “Written Finding of Innocence”: And on the other hand, fighting the good fight to the end, no matter what toll it takes, is your right, as well. In some cases we have not stopped our efforts until we have obtained what some believed to be literally impossible to achieve: a written finding of innocence by an investigative agency or a court, along with an apology by the accuser. While the end goal is always your choice, your attorney should provide counsel to keep that goal a reasonable and realistic one.
20. Always Keep Foremost in Your Mind: The Other People’s Perspective: While focusing on your defense of any allegations against you, do your best to consider the perspective of your accuser(s), and of everyone involved in your matter, as well as their own perception of their own self-interests. A person’s view of their own self interests is often the clue to their perspective, which is an indicator of their motivation, which can often provide advance warning of their likely course(s) of action. Keeping “one eye” on the other person’s thoughts, ideas, motivators and goals is considered by many to be the secret to negotiating anything.
21. Take Steps to Reduce the Effects of Stress Upon You: Facing an allegation of wrongdoing – whether or not it is true – is a daunting, exhausting, anxiety-ridden task. In times such as these it is always important to take proactive steps to eliminate or reduce stress, including prayer, meditation, exercise, yoga and similar pursuits. These kinds of activities cut down on physical ailments caused by stress, and promote better focus and concentration, all necessary components for effective action.
If you would like to obtain a Model Letter to assist you in Responding to an Allegation You’ve Been Harassing, Hostile or Discriminatory [click here]
If you would like to obtain a Model Letter to assist you in Responding to an Allegation of Various Other Types of Wrongdoing at Work (such as, Insubordination, Absenteeism, Exceeding Authority, etc.) [click here]
These “21 Guidelines for Responding to an Allegation of Wrongdoing at Work” are “pilots” to help steer you through a “storm” in your career. With these in mind you will more likely be successful in “navigating” and negotiating to a “safe harbor.” While not every precaution may be applicable to your circumstances, many will and should be considered carefully, and adapted as may be necessary or appropriate.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues requires that you think “out of the box,” and avoid risks at every point in your career. Knowing these “21 Guidelines” can help you do so in a most contentious and confusing time of your life.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what our SkloverWorkingWisdom™ is all about.
A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
© 2010 Alan L. Sklover. All rights reserved. Commercial use prohibited.