Published on July 25th, 2017 by Alan L. Sklover
“ To err is human.
To blame it on someone else shows management potential.”
ACTUAL CASE HISTORY: Gary, 44, was a staff writer for an online entertainment industry blogsite. Most of his writing in recent years was about trends in subscriptions to live streaming music. His special expertise was in data collection and analysis to spot trends, and he was widely known as an expert in that area.
Gary’s analysis of live-streaming subscriptions lead him to the firm conclusion that certain of the largest live streaming music companies – indeed, the largest ones in the music industry – were losing more and more subscription customers to their smaller, more focused, and nimble competitors. When he wrote a significant article about this trend, his editor refused to publish it, claiming that it was replete with illogical assumptions on Gary’s part. This had never happened to Gary before in his 20 or so years as an entertainment industry writer.
Separately, two colleagues approached Gary in confidence, and shared with him that the blogsite’s editor had admitted to them that she declined to post his article because she was afraid of backlash – in the form of less advertising – from the larger streaming services, who were the blogsite’s “bread and butter.” They even shared an email in which the editor claimed to have been pressured to do so by the blogsite’s owners.
Gary then submitted to Human Resources a formal complaint of breach of his contract provision that forbade editorial decisions being made on financial considerations, and also that this was a breach of ethics and company policy. A two-week “investigation” by the blog site’s outside lawyers concluded only that “We did not find that anything improper has taken place,” despite the emails, the witnesses, and the circumstances that clearly showed otherwise.
Only after Gary brought the situation to the attention of the company’s CEO and Board of Directors did real progress toward addressing the problem begin to take shape.
LESSON TO LEARN: The most important lesson my mother taught me is that, “Without accountability, you really can’t expect responsibility.” Let’s face it: if failure to pay your taxes was not illegal, and no one checked whether or not you did, would you really do so? (As a lawyer, I must advise you that you need not answer that.)
Let’s all simply accept the reality that the same thing happens at work: many managers will not do the “right thing” if no one will hold them accountable for their failures to do so. And that is why they often hire “investigators,” not to determine the truth but to protect themselves from it.
Over my 35 years as an advocate for employees, many times I’ve helped clients file claims or complaints with their employers’ HR department, compliance department, and legal department of wrongful behavior against them by means of (a) discrimination, (b) harassment, (c) hostility, (d) retaliation, (e) dishonesty, (f) fraud (especially regarding Performance Improvement Plans), (g) threats of violence, and other misconduct by their managers or colleagues. In past years, some of those investigations found that the complaints were fully justified; other times, it was concluded that there was no basis for the complaint. The reasons given for not finding a basis for the complaint were often shared, and included (i) a misunderstanding of what was said or done, (ii) the alleged “offense” was only a very minor transgression, and (ii) the alleged “offense” may have taken place, but it was done in error, that is, without wrongful intention.
Increasingly, however, employers’ investigators – whether Human Resources, in-house Legal Staff, Employee Relations, or external investigators, such as law firms – never, ever seem to find any wrongdoing. It’s as if we now live and work in a “world of angels.”
That is because “investigators” are almost always tasked not with determining the truth, but rather with three specific objectives, namely, to:
1. Gauge Risk: To gauge the amount of risk posed by the complaining employee and his or her complaint, to both senior management, personally, and the organization or company;
2. Diminish Risk: To frustrate the employee’s efforts to exercise his or her legal rights, determine the truth, protect themselves, and hold the “guilty” persons accountable for their wrongdoing, misconduct or negligence; and
3. Divert Accountability: To ensure that no one – and most of all members of senior management – are not held accountable for wrongdoing, what we call brought into the “zone of accountability.” Said a bit differently, making sure that “the buck” does not stop on anyone’s desk.
And, it is close to never these days that investigators are willing to share the reasons “nothing wrong was found,” because that, itself, would raise a risk. This is so even when they are presented with such strong evidence of wrongdoing as, for examples, (a) incriminating emails, (b) damaging documents, (c) credible witnesses, (d) damning circumstances, and even (e) admissions of wrongdoing.
Sound a bit paranoid? Well, consider that Wells Fargo Bank internal and external investigators “investigated” internal wrongdoing for five years and fired over 5,000 of their branch personnel for opening up non-existent accounts, but found not a single thing wrong, in error, or even questionable about the conduct of senior management who both (a) directed, coordinated and collected bonuses of tens of millions of dollars as a result, and (b) were not even criticized, until Congress had open hearings about it and exposed this gross dishonesty and rank hypocrisy.
The ultimate issue is this: “Who is investigating the investigators?” The “secret” to truly resolving this dilemma is to make “someone in authority” accountable for what has taken place, and that “someone in authority” is almost always your employer’s senior-most management. When they are brought into the “Zone of Accountability,” you have significantly more leverage, which can be put to significantly better effect.
WHAT YOU CAN DO: These are the several steps you should consider taking in order to get past, over and beyond such “blindness to wrongdoing” on the part of “investigators” of any complaint you file at work:
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