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:
1. Filing your initial complaint or report was your “big first step.” My experience is that filing the first complaint, report or objection regarding harassment, discrimination retaliation, bullying or other workplace wrongdoing is the most difficult step to take. After that, following up, even when “no wrongdoing” is found, comes a bit easier, and generally – but not always – has better protective effect against your being treated unfairly or illegally in the future.
2. It will only help if your initial complaint, and the “evidence” you have submitted, have been, or is later, transmitted by email. Perhaps the biggest mistake an employee can make when filing a complaint at work is submitting it in person or over the phone. If either in-person or by phone is the required procedure for filing a complaint where you work, then you might, in addition, send it by email, either with your initial complaint, or at any time afterward. Doing so ensures that the recipient of your complaint cannot (i) forget any of it, (ii) claim that any of it was missing or insufficient, (iii) later take the position it was said in anger, and/or (iv) claim that there were other things communicated that simply were not, such as claiming falsely that you resigned.
And, too, you should always send to any “investigator” copies of any and all forms of “proof” of your complaint. Including (a) emails, (b) documents, (c) names of witnesses, and other events, keep copies of both (i) the emails, and (ii) your own email by means of which you transmitted it, and, ideally, the “delivery receipt” or “read receipt” that came back to you when you sent them.
We offer Model Letters, Memos, Checklists and Agreements for almost every workplace issue, concern and problem that requires your wise navigating and negotiating. They show you “What to Say, How to Say It.™” Want to see our Entire List? Just [click here.] Delivered by Email – Instantly!
3. Please don’t have high hopes that your “investigator” is going to do an honest and true “investigation.” Suppose your home was burglarized . . . and you had good reason to believe the burglary was done by Police Captain Jones. If Police Captain Jones assigned his assistant to investigate the burglary, would you expect a true and honest investigation to take place?
Keep your expectations very, very low. Do not get upset, discouraged or angry if your complaint is concluded to be “baseless.” And, don’t give up, because that is exactly what your “investigator” is hoping you will do.
Filing your complaint or objection to how you have been treated is the first and most courageous step. In my experience, follow-up steps, that is, pushing further, does not take as much courage. Instead, it takes faith, determination and perseverance. Your continuing to “push” further, is, in my experience, easier and more likely to be more effective, because done correctly, it brings senior management into the critical “Accountability Zone.”
You see, Human Resources, Employee Relations, In-house legal counsel, outside investigation firms, and outside legal counsel, are all doing precisely what they are supposed to do, and what they are being paid to do: protecting and covering up for the employer and its senior managers;
Sorry if I seem a bit cynical, but all of these people – including Human Resources staff, outside investigators, even senior managers, many of whom are my clients say these exact words to me: “You know how it works.”
4. If the “Investigator” concludes “No wrongdoing found,” consider transmitting to him/her by email what we call an “Post-Investigation Push Back” letter. A “Post-Investigation Push Back Letter” is simply what its title implies. It says, in effect, “I do not think this investigation has been performed in good faith, for several reasons, and I must make that point to the investigator and to those who oversee – and pay – him or her.”
To the extent applicable, these are valuable elements of such letters, addressed to the investigator, sent by email:
a. Request to be advised whether there is any procedure for appeal or reconsideration;
b. Contact your witnesses, and ask them whether they were contacted and interviewed by the investigator. If any were not, insist that the investigator explain her or his failing to do so;
c. Do not be afraid to express to the “Investigator” that you believe the investigation was done in bad faith;
d. Request how he/she can claim that there was no conflict of interest, because there is an unquestionable conflict of interest, since he or she is being paid by the employer, that is, getting paid by the same people who are being investigated.
e. Remind the investigator of the proverb that “He who pays the fiddler calls the tune,” and the certainty that there is a fundamental conflict of interest at work here;
f. Ask how it could be concluded that there was “no wrongdoing found,” in light of the unquestionable and insurmountable evidence that you submitted;
g. Inquire of the investigator whether it is true that he or she, or his or her firm, works exclusively for employers, and not for employees;
h. You might mention that the “investigation,” itself, seems to be an act of fraud;
i. Consider, too, mentioning the only alternative you have of alerting audit staff, compliance staff, the Board Audit Committee, public administrative agencies, regulators, or perhaps even law enforcement authorities, of this dishonest conclusion, made in a conflict of interest, as may be applicable and appropriate; and
j. As noted below, your “Post Investigation Push Back Letter, should both (i) mention going to senior management, and (ii) if appropriate, external authorities.
These are the most commonly included concerns noted in a “Post-Investigation Push Back” letter. If you have additional items to include, or some of these don’t seem applicable, adjust yours accordingly.
5. A critical element of a “Post Investigation Push Back Memo” is your bringing members of senior management into the Dreaded “Accountability Zone.” Perhaps the most important element of an effective, motivating and successful Post Investigation Push Back Memo is its mentioning (a) that it is being copied to one or members of senior management, perhaps the President or CEO, with that person being “cc’d on the memo.
It may be even more effective if you clearly note, in the text of the memo is that, if this “no basis found” conclusion is permitted to stand, you will have no choice but to bring your concerns to yet “higher authority, including the Board of Directors, regulators, law enforcement, governmental agencies, and the like.
As noted above, keeping senior managers out of the “Accountability Zone” is an important part of the Investigator’s job, and your bringing senior management into that “zone” almost ensures that your complaint will be noticed and responsibly acted upon.
6. Last, but not least, consider contacting appropriate, external “higher authority,” but only if truly necessary. If your Post-Investigation Push Back Letter is not successful by its bringing management into the “Accountability Zone,” you might consider appealing to such external “high authority” as regulatory authorities, civil and human rights agencies, law enforcement authorities, and the like.
INVESTIGATION OF YOUR COMPLAINT find “NO BASIS? To Push Back, we offer a POST-INVESTIGATION PUSH BACK MEMO. Adaptable for Your Complaints of Retaliation, Discrimination, Harassment or Other Misconduct Against You. It shows you “What to Say, and How to Say It.™ To obtain your copy, [click here.] Delivered By Email – Instantly
7. An important warning: suggestions or threats of “going to the newspapers” or “making things pubic,” and the like should NEVER, ever be spoken or written, as they can constitute the crime of extortion. Like it or not, to write or say to someone “Do something for me, or give me something, or else I will make public things about you that might hurt you,” will likely be constitute the serious crime of extortion. Can you – without making the threat – go to civil or criminal authorities? Yes. Can you make the threat to do so? No.
In Summary . . .
If you file a complaint about being harassed, discriminated against, or otherwise treated improperly, it is likely that your employer will appoint someone to “investigate” you complaint. Don’t expect too much from the “investigator,” as his/her job is not to find the truth, but to protect your employer, and its management. Sorry to be so blunt and appear so cynical, but that is the truth. Your job is to protect your interests, and that entails three things: (1) making it hard for them to ignore the truth, (2) if they do find your complaint “baseless,” making it hard for them to leave it at that, and, finally, (3) persevering in your efforts. Bringing one or more members of management into the “Accountability Zone” is the best way to successfully do all three.
P.S.: For those seeking personal attention, I offer 30-minute, 60-minute, and 120-minute telephone consultations. To obtain your consultation, just [click here.] If needed, evenings and weekends can usually be accommodated.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “outside the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – errors, traps and pitfalls, included – and to avoid the likely bumps in the road. One of those ways is to “speak truth to power,” even if “power” tries to ignore you by frustrating you, and diverting accountability away from them. Standing firm when submitting a complaint internally is one of those ways, as part of wise job and career navigation and negotiation.
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 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.
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Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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