Monthly Archives: September 2014

PREVIEW: DISCUSSING WORKPLACE INVESTIGATIONS AND MISCONDUCT

Better to remain silent and be thought a fool than to speak out and remove all doubt.   Abraham Lincoln

Next week the HR Law Insider will tackle the issue of discussing workplace investigations and misconduct. In the meanwhile, enjoy Saturday Night Live’s recent take on the NFL’s dilemma when it comes to discussing its past:

http://www.nbc.com/saturday-night-live/video/cnn-state-of-the-union-nfl-cold-open/2815269?onid=148621#vc148621=1

MONDAY MORNING QUARTERBACK: THE NFL’S RAY RICE INVESTIGATION UNDER REVIEW

 You must pursue this investigation of Watergate even if it leads to the president. I’m innocent. You’ve got to believe I’m innocent. If you don’t, take my job.

Richard M. Nixon

Workplace investigations are often conducted in the fog of quickly unfolding events. Within this fog, a leader must develop clear plan. The plan should include:

  • Who will lead the investigation
  • The scope of the investigation
  • Following applicable agreements and/or company policies
  • The order of the investigation
  • Selecting the appropriate witness(es) to investigatory interviews
  • How the investigation will be documented
  • Ensuring that all information is funneled up to the lead person
  • Flexibility in the face of new or unexpected facts
  • Confidentiality
  • When necessary, announcing some or all of the results of the investigation
  • Determining the appropriate discipline, if any
  • How the investigation will be perceived by the EEOC, a judge, jury, and/or the public at large

Given the NFL’s resources, one would think that it would know how to conduct an investigation. The Ray Rice situation, however, calls that into question.

For the uninitiated, Ray Rice is an NFL player. Earlier this year a video surfaced showing him carelessly dragging his unconscious fiancé out of an Atlantic City casino elevator. The NFL subsequently suspended Rice for two games for domestic violence. A chorus of boos ensued. Critics claimed that the penalty was far too light for the offense — the product of a league with a poor record on domestic violence protecting one of its star players.

Months later a second video emerged. It showed footage of what had happened inside the elevator moments before Rice dragged his unconscious fiancé out: Rice had knocked her out with a left-hand punch to the face. The second video shocked the nation and thrust the NFL into a media firestorm that continues to burn. The NFL immediately reversed field and suspended Rice indefinitely. This did not calm the masses, however — the NFL’s investigation was now itself under investigation.

What went wrong? It appears as though NFL Commissioner Goodell led the Rice investigation. If so, was he the correct person for that task? Doubtful. Whether a business owner should be the lead investigator and decision maker depends on several factors: the size of organization; type of matter being investigated; whether the owner is a witness or otherwise involved in the alleged conduct giving rise to the investigation; and, the owner’s expertise in the subject matter and in handling investigations (Goodell does not “own” the NFL but has been vested with seemingly unlimited authority by team owners).

The NFL is a multi-billion dollar organization with vast resources. The allegations against Ray Rice warranted the use of those resources to (1) conduct a thorough investigation and (2) determine the appropriate discipline in the event that Rice engaged in misconduct — a likely result given the initial videotape showing him abusively dragging his unconscious fiancé out of an elevator.

Commissioner Goodell admittedly had no experience investigating domestic violence matters. Apparently without thinking it through, he interviewed Rice in the presence of Rice’s fiancé, and then interviewed the fiancé in Rice’s presence. According to domestic violence experts, this was a mistake: perpetrators and victims should always be interviewed separately. Goodell sheepishly admitted as much at his recent press conference.  The lesson for any company: obtain counsel in determining the appropriate person to lead your investigation and immediately determine whether outside help is needed.

It appears as though the NFL did not adequately document the Rice interview. As a result, those present at the interview have differing versions of what Rice said. Goodell alleges Rice’s story is inconsistent with the second video, which shows Rice knocking out his fiancé in the elevator.  Rice’s team representative, however, alleges that what Rice said is wholly consistent with that video. Lesson: failure to adequately document employee and other interviews can undermine or even negate an otherwise effective investigation (albeit the NFL’s was not effective in the first instance).

The NFL claims it only suspended Rice for two games initially because it did not have the second videotape at the time. This illustrates two additional investigatory failures by the NFL. First, Rice’s attack took place in a casino. It is commonly known that casinos videotape all public areas including elevator interiors. Yet, the NFL claims it made little attempt to obtain the video of what happened in the elevator. Lesson: investigators must be able to defend the reasonableness of their efforts to locate relevant information. While investigators are not held to a Herculean standard, failure to look under one’s nose or in obvious places will subject an investigation to the claim that it was pretextual and not truly intended to uncover the truth.

There is emerging evidence that law enforcement did provide NFL security representatives with the second videotape at or around the time when the NFL obtained the initial videotape showing the outside of the elevator. Goodell, however, denies that he knew about the second videotape until months after reviewing the initial videotape. Lesson: any information obtained by your organization must be immediately provided to the lead investigator. Otherwise, your organization risks that its decision maker will reach fact conclusions or decide discipline on an incomplete or inaccurate set of facts.

The discipline meted out by the NFL illustrates yet additional flaws in the NFL’s haphazard decision making. It also displays just how tone deaf the NFL can be to public opinion and women’s rights. Initially, the NFL suspended Rice for two games. This was widely viewed as absurdly light, and Goodell has now admitted he “made a mistake.” How could he make such a mistake? Easy: it is all too common for businesses not to subject their high revenue producers and stars to appropriate scrutiny and discipline. The tendency is to let revenue producers and stars do their thing and hope the situation somehow passes under the radar.  This is a high risk strategy that failed miserably for the NFL

Ironically, the NFL’s mistakenly light initial discipline will now enable Rice to argue that he is being subjected to double jeopardy because he is being punished twice for the same offense — first a two week penalty and now an indefinite suspension. Lesson: organizations should carefully and deliberately consider the penalty for any misconduct. Factors to consider include the historical treatment of such misconduct; changing societal and legal standards; the deterrent effect on potential future offenders; and, the organization’s ability to defend the penalty.

Finally, the NFL failed to perceive how the Rice situation would escalate into a league-wide crisis. The league is enjoying unprecedented revenues, and this may have led to an over consolidation of power in one man — Goodell. He appears to occupy a power bubble and clearly lacks the ability to understand the broader issues and his detractors.

If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. Sun Tzu.

This article does not contain an exhaustive list of the NFL’s mistakes or a complete list of all the factors to consider when deciding upon who will conduct your company’s investigation and how it will be conducted. The topic is too fact intensive for any one article. Understand this: everything you do — from your first reaction to your final decision — may be subject to the scrutiny of the EEOC or a jury.

BONUS NOTE: Bowing to public pressure, Goodell selected former FBI Director, Robert Mueller, to investigate the NFL’s handling of the Rice situation. In doing so, he created yet another problem: Mueller now works for the law firm that represents the NFL. This further calls Goodell’s decision making into question: how could the NFL have hired a potentially biased investigator for such an important job? Stay tuned.

This week’s video clip from Jerry Maguire (warning: language) confirms that football decisions typically revolve/evolve around one thing:

Welcome to the HR Law Insider

Tell me and I forget. Teach me and I remember. Involve me and I learn.                             

Benjamin Franklin

The HR Law Insider’s objective is simple: engage and involve human resource professionals and companies in learning how to better run a business and manage employees. How can this be done though a weekly “blog”? Equally simple: by making the blog informative and entertaining.

The NFL’s recent fumbles provide the perfect fodder to start the journey. The league has learned that it is not exempt from real world laws and social movements. Lessons from the NFL’s struggles and snafus include:  “traditional,” old school way of doing things are oftentimes no longer acceptable — or legal; workplace investigations should be carefully planned and executed; and, when a company makes an initial mistake, it is near impossible to get the genie back in the bottle — so plan your strategy from the beginning.

The Minnesota Vikings recently learned — courtesy of punter Chris Kluwe — that Title VII applies on the rough and tumble practice field; there, an “old school” coach failed to understand the larger cultural shift towards tolerance of gay people. He consequently misjudged his strong-willed punter’s commitment to that cause and ability to sue the Vikings under Title VII . Was Kluwe fired because his yards per kick were down or because he complained about discrimination? The Vikings’ handling of the situation allowed Kluwe to make a cognizable argument for the latter. The case settled, but only after the Vikings sustained a huge black eye.

Players in the Miami Dolphins locker room apparently thought they too were exempt from Title VII’s rules. The result: the Jonathan Martin/Richie Incognito fiasco. Future HR Law Insider editions will discuss the failure of leadership which led to the Dolphins’ debacle and offer helpful insights on leadership strategies to avoid employee disputes.

The Ray Rice incident and aftermath could provide material for an entire course on human resource and public relations “dos” and “don’ts” — albeit the course instructor would struggle to find any “dos.”  How not to properly conduct a workplace investigation? Check. How not to implement and consistently enforce workplace misconduct policies? Check. How not to evaluate and decide upon an appropriate penalty for misconduct? The list goes on and on. The HR Law Insider will evaluate the best methods to navigate through workplace investigations and make reasoned decisions that will withstand public and legal scrutiny.

Future HR Law Insider blogs will tie-in to seasonal issues and stay current with societal shifts. In November, for example, we will address the upcoming holiday season, including how businesses can make sure their Christmas or other holiday party doesn’t turn into a liability producing event (e.g. employee gets drunk and runs over valet).

In addition to containing lots content to help human resource professionals and businesses better run their operations, each HR Law Insider article will conclude with an entertaining tidbit relevant to the topic at hand. This week, in honor of the NFL and any business confronting chaos and trying to “get it right,” Shawn Colvin performs “Shotgun Down the Avalanche.” The first video below is to Ms. Colvin’s haunting ballad; the second video relates to how I discovered the song. The video shows ski-mountaineer, Kevin Grove (who I was lucky enough to meet on a trail last summer) making an admittedly huge mistake by creating an avalanche that nearly carries him to his doom. Fortunately, Kevin had the skills to immediately grasp the problem and “fix it” by skiing to safety. We should all be so skilled and fortunate when faced with life’s avalanches. Enjoy the ride: