Wait, Am I Doing This Right? A Real-Talk Guide to Investigations

[Melanie Naranjo] (0:00 - 5:41)
Hello, hello, everyone. Always very cool seeing people's emoji reactions for the day. I love it.

What a broad range of emotions coming on today. Oh, welcome, welcome. If you are a first-timer to our webinar series, you are in for a real treat.

We like to keep these fun, interactive, and we've had Chantel before. She's amazing. She's a lawyer who actually talks like a human, which is wonderful.

Chantel, welcome back. Thank you. Appreciate having you back today.

Thanks for having me. I'm so glad to be here. This is one of the things I love talking about the most, investigations.

Yes. Oh, my gosh. Literally, I'm not kidding you, and we're going to bring it into the webinar today, but as we were prepping for even the pre-webinar when we were on in the waiting room, I was like, Chantel, I need some advice on best practices for investigations.

This was wonderful, and I can't wait to share that all with you today. Oh, my name is Melanie Naranjo. I'm the Chief People Officer at Athena.

We do everything from harassment prevention. Sorry, I should say we are a compliance training program, and we do everything from harassment training, harassment prevention, cybersecurity, code of conduct. We also have a hotline in case management, and one of the reasons that we run these webinars is because we realize that we work in a very tricky space where things get scary, where there are things that people are too scared to talk about openly or to ask for advice on, and so we want to make sure that we're building that community for you while providing resources, and so that's exactly what we're going to do today. If you are looking for new friends and a community to lean on, I recommend that you share your contact details in the chat. You will see this is a very active chat group.

You'll make a lot of friends here. Before we jump in, please note that because I like to make these interactive, I will be calling on some of you. In the comments, I'll ask you to drop your answers.

If you don't want to be called on, just put an asterisk next to your response when you put in your answer, and that will be my cue not to call on you. I get it. Maybe you're doing the dishes.

Maybe you're an introvert. Maybe you're driving your car. I want to make sure that you're free to do what you need to do, and also, quick shout out to Peter in the background.

We usually have Ace hanging out, but Ace is on much-deserved PTO today, and so Peter, who used to be a webinar attendee, is now helping us rock hard on this webinar today, so thank you so much, Peter. All right. With that said all, let's kick it off.

We're going to talk through common pitfalls to avoid, what good looks like. We're going to do a little theme spotlight and a quick Q\&A, but first, I almost jumped the gun here. Chantel, in my heart, I assume everybody knows you already, but there may be people on the call here who don't already know you.

Can you give us a little intro on you before we jump in? Of course. It's so funny.

I didn't even notice it either. I'm so glad to be here. I love joining these Athena webinars.

They're so interactive, engaging, and I just love the real talk. I am an employment attorney. I've been practicing for almost two decades now.

My specialty area is investigations, crisis management, trainings as well. Obviously, I'm doing live and in-person trainings, not like the amazing online things that Athena does, and also helping with advice and counsel and coaching. My sweet spot is really taking investigations and thinking about them from two angles, which is thinking about them in terms of what do we need to do in terms of a litigation that may happen in the future, but also doing it in a way that leans into emotional intelligence and how we can build a stronger culture and bring some peace back to the workplace after this challenging moment.

Much needed. In fact, can I get a plus one in the comments if you are an HR person who wishes you had a go-to lawyer that you could just run things by real quick anytime something's going on? Yes?

Okay. You're going to have that today with Chantal because I feel like sometimes HR professionals, myself included, we kind of like talk in circles, like what do you do? What do you do?

What do you think we should do? But the answer is always check with a lawyer. Just check with a lawyer.

With that said, I do need to give a disclaimer all. This is not legal advice, okay? Every situation is case by case.

These are high-level best practices. If you actually have an ongoing situation, you should consult a lawyer. Maybe reach out to Chantal.

We will be sharing Chantal's contact details after the call. So with that said, let's jump into it. I can see people are already ready with their fingers.

Let's do a good old pulse check. Scale of one to five. How much do you agree with the following statement?

Five being agree, one being disagree. My first experience conducting an employee investigation was a 10 out of 10. Knocked that out of the park.

It was perfect. There wasn't a single thing that kept me up at night wondering, oh, did I handle that correctly? All right.

Oh, I'm seeing a six. Okay, five is good. One is bad.

I'm seeing some high scores. I'm very impressed. I'm seeing more people on the lower end.

One, two, three. Let's do a fun, let's call on someone from both sides of this. Let's do Abigail Benson, B-E-N-S-O-N.

You did not give an asterisk next to your response and you gave a one. If you could go and unmute yourself, first name, A-B-I-G-A-Y-L-E. Go ahead and unmute yourself and tell us a little bit more about your one.

What was your first experience like keeping out? Any details about your company? We want to respect privacy laws here, but what went wrong?

[Chantelle Egan] (5:42 - 5:45)
So this is Abigail. I meant to put an asterisk.

[Melanie Naranjo] (5:45 - 28:53)
Oh, okay. We're not going to make you talk then. I'm so sorry, Abigail.

No worries at all. Total respect for that. Let's call on someone else.

Let's do, I appreciate you being up front about that, Abigail. Let's do Christine Myers, C-H-R-I-S-T-I-N-E, Myers, M-Y-E-R-S. You did not put an asterisk next to your response.

You gave a two. Christine, can you unmute yourself and tell us a little bit more about your first experience running an investigation? Yeah, so I meant to put an asterisk, but I will still answer the question.

Okay. So I was very new to HR when I first had to do my very first investigation, and I was not sure what questions to ask. I was unfamiliar of kind of what the foundation would look like, how I need to kind of conduct myself, how to be prepared for other answers that I was going to get from the individual.

So it was very nerve-wracking. I'm a little more, I'm going to say I'm probably about a seven now. I feel more prepared.

Nice. Okay. Very, very glad to hear it, Christine.

But I imagine you were not alone in not knowing what questions. Can I ask Christine one quick follow-up question? What support or preparation did you receive going into your first investigation?

Like, did you have a training? Did anybody walk you through the, like, what did that look like for you? Yeah, great question.

So I had my HR manager, she kind of was like, here's a couple baseline questions I want you to ask, and then go from there. So there was a little bit of support. It was unknown after that.

Well, thank you so much, Christine, for being so open and vulnerable with us. Can I get a plus one if anybody identifies with Christine's experience where you did not receive formal training, you received, hey, your manager maybe gives you some quick tips, and it's like, okay, go forth and conquer, figure it out from there. Yeah, okay.

So, Christine, I hope that this helps validate you are not alone here at all. That is what we are going to hopefully help and try and address today. I'm actually going to leave it here just in case there are other people who forgot to put an asterisk next to response.

Let's stop sharing so you can see Maya and Chantel's lovely faces. Chantel, what goes through your mind as you hear some of these responses? Are you in shock?

Like, are you like, what? Every client I've ever talked to has had robust training. How can it be that so many people on this webinar don't have formal investigations training?

No, I don't think that at all, actually. I would say, you know, when I started out, I was a litigator, and I would defend these investigations and defend the ones that HR professionals did. And almost everybody, it's on-the-job training, it's learning it on the fly.

And also, I mean, investigations pop up when you don't expect them to. It's not something that you plan for. It's like, well, two weeks from now, we're going to get a complaint.

Like, it's often, I always think it's one of those things where either, like, you're completely blindsided by it, or you're like, really? It had to happen this week? We're trying to roll out benefits.

Like, I got something else on my plate. So if anything, it really doesn't surprise me at all. I will say that I work with a lot of companies where we're doing full-day trainings, helping them understand not only the nuts and bolts of the investigation to do something that's defensible, but also using it as an opportunity to reinforce culture, to reinforce how the company wants people to show up, and using it as a tool versus just, you know, a box that people have to check.

And, you know, I wish that more companies did that. Well, I am glad to help make sure that more companies are doing that. On this call today, Chantel, let's jump into it, okay?

Because I feel like oftentimes too many of these webinars stay, like, really theoretical, really high level. I want to jump right into it. You literally talk to employers who call you when things go wrong.

Where do you see most employers go wrong when it comes to employee investigations? So there's two places where I see the biggest missed opportunities or oops. One is on the front end, and there being a lack of planning.

There's either this, like, urgency to get it over with, so everybody just kind of jumps in, or it's this urgency to get it over with, so it's like, well, let's, maybe we don't have to do an investigation, which of course we can unpack a little bit more. So I actually think it's really being grounding in the beginning. And one of my favorite mentors used to say this expression, like, we're playing chess, not checkers.

And you really need to think about what do I need to do now so that I will have success and clarity at the end? Does this need to be an internal investigation? Does this need to be an external investigation?

Who are the business people that need to be brought into the tent? How are the expectations need to be laid out for them? Who are the people I need to talk to?

What do I need to ask them? Those are all planning and structure questions. So that's, that lack of planning makes things much harder as things go on.

And then on the back end, I see a real missed opportunity of this is like, you know, this is just showing a little bit of who I am, that these are amazing opportunities to really understand how people are perceiving the quote unquote reality of your workplace. This is, I think, more insightful than any survey, any performance review. This is really an opportunity to help you see how people are filtering the information that's available to them in the workplace, understand their perceptions, because at the end of the day, those conclusions or beliefs are what drives your culture.

So using the insights that you gain through the investigative process to pivot, to make changes, to seek acknowledgment, really helping those things inform your next steps above and beyond any kind of remediation. It's really like an amazing insight to your culture and how people perceive the workplace. I do think you present a really interesting point because early on in my career, I will say that I looked at investigations as very black and white.

It was either there was a company violation or there wasn't. And if there wasn't, case closed, we're done. And it took me, sadly, a couple of years to realize, even if you run an investigation and you find that no policy has been violated, that doesn't mean that you may not have unearthed some real cultural issues that should, in fact, be managed.

And it is actually totally reasonable to follow up an investigation with, hey, correct that no or not correct, I should say, hey, we completed a very thorough investigation. And where we landed was that we did not find any evidence that substantiated that X policy had been violated. However, what we did find were X, Y, and Z cultural opportunities and risks for us or opportunities for us to improve as a company.

And so we will be digging in deeper there to take action to improve. Maybe you've got bad management in place. Maybe there weren't clear cultural expectations set.

Maybe your employees don't have a clear understanding of your company policies and what good and bad looks like. And so I agree, Chantel, entirely that investigations are these bigger opportunities other than, like, checkbox, did somebody violate a policy or not? I want to dig into something you said, Chantel.

And I saw somebody in the comments pop up, and I was asking you some more about this earlier. Because funnily enough, I know you said, hey, one of the issues you've run into is not enough people running the investigation when they should, not taking it seriously enough. And I actually wouldn't be surprised if we're starting to move in the other direction, especially with sort of, I find that with the proliferation of AI, which has been great in many ways, it has also given employees a lot of access to information, maybe not with entirely the right context.

And so like, if you tell Chachapiti, like, hey, I'm having this issue, and here's a bunch of information, and I'm an employee, and I want to bring this to HR, AI understandably might skew towards, ooh, this could be, like, big, scary word, discrimination, retaliation, harassment, bullying. And here's, like, a very formal, legal, adjacent language that you should use to bring this to your HR team. And what can happen then is, you know, these very, these things that maybe are really, really big and scary come up, but also maybe these things are things that are being misunderstood, misinterpreted.

And so I'm curious to know from your perspective, Chantel, how do you decide when a full-on investigation is called for, and when actually a better solution is available? So I'm going to answer that question in a couple ways. I want to start with a story, which is, recently in this last year, one of my colleagues, and I have a team of investigators that I work with, they got an investigation.

The complaint said that the person was experiencing harassment and discrimination. And when asking, okay, well, what does that mean to you? When you say harassment and discrimination, help me understand what that actually means.

The person said, well, I put everything into Chachapiti, and Chachapiti told me that I'd experienced harassment and discrimination, and I actually don't think I have. So it is really important, and this was even before the, you know, the dawn of AI, to ask when people are using those, you know, magic words, words like retaliation, discrimination, harassment, we all know what they are, the ones that, you know, you know, make your heart jump a little bit. Really helping them understand, really investigating, questioning with open and curiosity, no judgment.

Tell me what that means in your own words. And why that is important is at the end of the day, this is a fact investigation. And so nobody, whether it is an HR professional or an external investigator, no one's going to be making a legal conclusion about whether there's harassment, discrimination, retaliation.

They're going to be talking about what actually happened. And that is also a really important step to even figure out if a investigation is needed. So, for example, I had a client who reached out and someone had used the word discrimination, and then when they asked the person about it, like, well, tell me what that is.

Like, what's happening? This is not an exaggeration. The person was very upset that they had changed the free kombucha flavors in the staff area, and they just didn't like the new flavors.

That doesn't rise to the level of a policy violation. That doesn't rise to a legal requirement that triggers an investigation. So also that initial interview can really help HR determine, okay, do I actually need to go through all the steps of the further investigation?

Does this, is, while they use the buzzwords, I can now memorialize that this is not something that is a policy violation. But this is a, this isn't an employee that had a concern, and now you can just address it as you would if they hadn't used those, those big buzzwords. And can I ask, because I think this is where it gets tricky sometimes, or at least for me, this is the trickiest part, is I always want to be very careful in the way that I communicate to an employee.

Like, okay, I've decided for myself, like, yep, kombucha, not really discrimination. What do I say to the employee to make it clear I take this seriously, I thought this through, and also this does not rise to the violation of a policy, in my opinion, and I feel that way, even without conducting a full-on investigation. So I think the key thing here is having a pause.

If they've spilled their guts to you, and then at the end of it you say, so thanks for all that info, we're not doing an investigation, just be like, thank you for sharing with me, I'm gonna go think about next steps, and I'll circle back with you. Taking that beat also then reinforces that you're critically thinking about it. You also need to ask yourself, did I ask all the right questions?

Was I leaning in with curiosity? You know, we joke about the kombucha example, but, you know, I had a situation with actually granola bars, but it turned out that the person had a food allergy and was concerned that she was being treated differently because of that, because the person making choices knew about that food allergy. So really leaning in to, like, help me understand, right?

And the three things that I think are really important, I call them the three C's. When you're trying to really embody leadership and you get some clarity and a path forward with these investigations, you go for clarity. What do I need to know and do right now?

You go with composure. How do I need to present myself in this situation? So I'm modeling also how I want everybody, including the witnesses, to show up.

And how do I show up with care while I'm balancing the dignity and humanity of the person that I'm talking to, but while also caring for the organization and the culture that we've created? So taking that pause is incredibly impactful because then it's like, okay, I thought through it. We looked at some things and you may already be able to come back with a solution, such as, oh, by the way, so I looked into it, our vendor changed.

That's why we don't have the cherry flavor anymore. You've also perhaps can come back with not only we're not investigating this, but you already have a solution for the employee. And if you don't take that pause, you're not going to be able to do that.

And a quick follow-up question, because I think the kombucha one, that's a great example with like, hey, vendor, this was out of our control. Here's the information I found and it shows that you did the research. The allergy one I could see getting a little trickier, right?

Because if someone's perspective is, I'm convinced that you are treating me because of this. I don't necessarily approve, but I feel it. Here are the things that I think have changed.

Would that then call for an investigation? At what point do you make that determination? Yeah.

So part of it is, I would say with that, I would say that there definitely needs to be a little bit more digging because now you have a particular characteristic at play. And it is really helpful though, when someone says, this is my belief and concern. You, they also, the next question is like, okay, well, who do you think is making these choices?

Because at the end of the day, the organization is made up of people and people are the ones that engage in conduct that they will then be ultimately attributed to the organization. When we think about it from a legal risk perspective, if they can't even identify who it is, that also is a way for you to be like, look, I don't have enough information from you to actually go through the steps of a large investigation. Like if you get more clarity on this, like this is what I'm going to do in the meantime, obviously we really care about you not having an allergic reaction.

So once again, you can solve for it, but also kind of give them a call to action and level set with them that without them, if it's just like an amorphous, the company, you're going to need more than that. Because at the end of the day, there has to be a subject of the investigation. I will say that I have had some employers, when there's not a subject, what I'm doing is more of like a cultural audit or an assessment.

And that's not really an investigation. That's more pressure testing, various things, whatever it is, that's the motivating factor in here to get some clarity versus like a traditional, there's a, you know, someone who's brought forward a concern and a subject that is the subject of that person's concern and that there will or will not be a policy violation. Super, super helpful.

Okay. Last in the weeds question here, because this came up a couple of months back, I had been having a conversation with a lawyer and I was a little bit surprised by something that they had said to me. So can I get a plus one in the comments if you also have done in the past, what I used to do at my last company?

I used to, somebody said, hey, I have a complaint or report that I'd like to file, you know, under the scope of harassment. We would link people to our policy and be like, thank you. We're following up.

And as a reminder, here is our harassment and prevention, or here's our harassment policy so that you're aware. And we did this so that people could come from a lens of like, here's what the policy is so that you can have a better understanding of whether or not a policy violation has come in or come up. But also so that, you know, like what we are indexing against as we go through this investigation.

I'm seeing no plus one. So it may have just been me at my last company. But I remember I was talking to this lawyer and she was like, absolutely not.

Do not give them the policy. Chantel, you agreed. Can you say more?

Well, you phrased it a little differently when we talked earlier. And I think the difference here is that once again, we want to focus on facts. And an employee does not get to make a determination that there's been a policy violation.

Like that's up to the company to make that assessment. Same thing when you hire an external investigator. An external investigator should report on the facts and then the HR team or the decision makers that know a lot more about the company at large and how the policy is interpreted is going to make that determination whether those facts warrant a policy violation.

I think when you'd previously worded it, you were talking about somebody who had raised a concern that like patently did not rise to the level of the of the policy. And I think using the policy as a sword to be like, see, your thing doesn't really rise to the level of a concern. I think that's going to cause one, it's going to cause more damage.

It's going to make them feel not heard. And at the end of the day, my informal assessment, I don't have anything scientific to back this up. But just when I used to litigate these all the time, more often than not, they come from feeling hurt feelings.

I haven't been heard. And so by kind of pushing back on them in that way, that could give them the impression that like their concerns don't matter. But if part of it is just to inform them, you know, I don't, I think it's fine that people have access to the policy.

Everybody should have access to the policy. That shouldn't be a big issue. I do think, though, that the bigger issue then is saying like, great, so you think this policy has been violated?

Great. What happened? Like, that is at its core, the most important thing.

And the thing you need clarity on from, frankly, from the jump, like, what is the scope of this? Like, I think I have been mistreated because of gender animus or this, and it's because of these three things that happened. That's what the investigation is about.

The analysis about whether or not there's been a policy violation, that comes after those factual allegations are substantiated or not. I think what's interesting, too, and what the other lawyer had mentioned, I'd be curious to know if you agree or disagree here, is if in direct response to a claim you share the policy before getting into the weeds and finding out what are the facts, there's a risk that it then biases that employee, and then they're like looking for key words as opposed to like functioning from like an unbiased, here's my interpretation of events.

Would you agree with that? Am I off here? Yeah, I agree with that.

It's also for the same reason that, for example, when I am working with somebody who's been, who's the subject of an investigation, I don't at the outset of the interview, and people have different, you know, thoughts on this. This is my approach, is I never say at the beginning, you've been accused of X, Y, and Z unless I'm legally required to, or you know, the CBA requires me to. And the reason for that is that automatically puts someone back on their heels.

So if you take a trauma-informed approach, if you are, you're in essence saying like you did this thing wrong, even if you've phrased it in a soft way, I want you to go into defense mode. Instead, like just get them talking and ask them all the questions about it, gather all the information, and then at the end be like, okay, so that we're crystal clear, like these are the allegations that have been raised against you. I have lots of information that's helped me, you know, weigh those allegations, but is there anything else that I should know?

And the really, the real reason here is so that people will give open, honest, unfiltered answers, and then I'm capturing them in real time when they don't have time to give that polished response. Fascinating. So what do you say to open up an interview with the person who is the subject of an allegation that isn't, hey, you're the subject of this allegation, I have questions for you?

Like, what do you say instead? Well, there's a bunch of things that you need to do at the beginning of every interview. Level setting with them, you know, about confidentiality, about retaliation, but also, I mean, and maybe this is because I'm a former teacher, I just recognize that if people understand the why and what your goals are here and what the expectations are, that's a chance for you to build rapport while level setting with them about the neutrality.

And one of the things that I think is the most important thing to say is talking to them about the goal of your conversation. And the goal of every interview should be for you to show up with empathy. And what empathy means is that the investigator understands the feelings, the impressions of the person that they're talking to.

It's not that they agree with them. It's not that they are sympathetic to them. It is that they have an understanding of it.

So that's how I start the conversation by talking with them about why I want them to be open and honest, all of this, but then saying to them, like, my goal is that you, as the person I'm talking to, feel confident at the end of this conversation that I, as the investigator, understand how you experienced the things that we're talking about. And I need you, it's almost like a partnership, I need you to show up in a way that if you think I'm misunderstanding, if I'm not getting it, I'll even do little pressure tests to be like, it seems like you're saying this. It's also a way to kind of, once again, build rapport.

You know, set me straight. If I'm wrong, like, don't be polite, like, pivot, let's make sure I get it. And it really helps reinforce that you're coming at this from a neutral perspective, and you're not making any determinations or judgments.

You're not trying to prove something. You're seeking to understand. And by doing that, it's not going to eliminate somebody feeling uncomfortable.

Lots of times we have to talk about really uncomfortable things. But it's eliminating the piece where they feel like they're being judged for what it is they're discussing. Okay, let me summarize what I think I'm hearing.

[Chantelle Egan] (28:54 - 28:54)
Okay.

[Melanie Naranjo] (28:54 - 58:58)
So I'm hearing ideal process of investigation is someone raises a claim. And step one is you pause to have a conversation with them to make sure that you are asking the right questions to understand the full scope of what is happening. And regardless of how that conversation goes, you take a beat.

You're not going to give an answer in the moment. You take a beat. You're going to come back.

You're going to do a little bit of research. Maybe this is a lowercase I investigation where this is not going to turn into a full-blown investigation. Or maybe you realize, yeah, actually, we need to dig a little deeper.

Step two, if you realize that you need to dig a little deeper, you're going to start asking more questions. You're going to be clear about what the goal is of these conversations. And then you're going to open it up in a way that makes it clear to them, hey, I'm just trying to understand what's going on here.

If I'm getting something wrong, please let me know. My goal is just to get to the bottom of this and identify the facts of this situation. What am I missing?

What else makes up the ideal process of an investigation? I know this could go forever, but... Yeah, I'm like, okay, how long is this webinar?

Well, and I think that it depends on who's in the role. So I'm going to give this answer for somebody who's an HR professional, right? Because who's here?

So part of it is just re-level setting about do you understand? And sometimes if you have a larger team, that initial conversation can simply just be the intake. Like when they come in and say, hi, I'm having this issue, like don't be so worried about having the full interview at that point, especially if the person is highly emotional, it's a stressful situation, just get the lay of the land.

That's okay. If you need to stage it into two meetings, because ultimately what you're going to want to do is build trust in the process so that at the end of the day, if you end up not substantiating, they believe that the process is fair. And you're also going to want to use that opportunity to level set on expectations.

And then in terms of process, once you understand what the scope is, and you've made a plan for who it is you need to talk to, the process in a perfect world is that you're then talking to all the other kind of witnesses, so not the subject, but you're talking with the witnesses, you're looking at the documents. So then by the time you get to the subject of the investigation, you can truly present to them like these are the facts at issue. And then one other thing I really want to point out is two things that you said.

One, I want to talk about the little I and the big I, and I also want to talk about like your job is to figure out the facts. Think about what the facts are. How we perceive those facts and filter them is really essential.

There's something called the ladder of inference. And it's like how our brain takes facts and like in like a nanosecond gets you to a place of you're making conclusions. And part of that is how we filter the facts.

Part of that is the assumptions that we've overlaid into those facts. And it also helps to understand what people are seeing and valuing. Because once again, when we think about that issue at the back end, it's like, wow, as I sat here, I wouldn't have cast that weight on that particular fact.

But now you have that information and you can use that to arm with any next steps that you need to take to either repair a relationship, make a pivot about culture, give a manager feedback that like, look, we haven't found any animus based on a protected culture or a protected characteristic. But like, you're not showing up in a way that is instilling, you know, any kind of, you know, you're not showing up in a way that makes it that people are going to be their best selves. And then the other piece that I wanted to circle back to was the big I versus little I.

I hear this all the time that it's like, well, it's not like a real investigation. And I don't actually, I don't subscribe to that. An investigation is an investigation.

And the process is what remains the same with all of them. And frankly, that's what grounds you. What makes something a little I versus a big I from my point of view is what is the import and impact of this investigation?

Is this a senior leader that's being investigated? Is this something that completely is contradictory to your culture? Let's say you've just won this award for the best place for mothers to work and someone's making a complaint about pregnancy leave.

Like, these are the things that make it more high intensity, but it's actually the process that remains the same and helps actually, I think, ground everybody in making sure that they're not running to get to the end in a way that misses out on conducting both a defensible investigation, but also one that is meaningful. Super, super helpful. I'm going to, because I'm seeing a couple of questions come in, and I think people have a hunger for some of these in the weeds questions of what we do in the moment.

So let me ask one that I think comes up quite a lot, which is, you know, you're doing an investigation and the person understandably is quite emotional and the investigation is going on and on and on. So this interview call, you asked one question and they talk for 20 minutes straight without pause, and it's going on tangents. It is not what you asked for and it's not letting you, and now it's taken up your entire day.

How do you thoughtfully manage the conversation and keep people on track? So I'm going to first say what you're not going to do, because I've actually seen this in workplaces and I think it's a detriment, which is I'm going in, I'm reserving 15 minutes of time, it's hypersurgical, I'm just going in and going out. Once again, that eliminates the opportunity that investigation has to let somebody just talk.

And I think the key thing here is twofold. There's kind of two techniques. One is you're not going to ask a bunch of follow-up questions about things that are a tangent.

You're going to ask, you're going to remain curious and open, obviously, but if they go off in left field, sometimes I'll even pause them to say, I'm struggling to understand why this has to do with this. Can you explain that? I'm like, can I just stop you for a second?

And sometimes they realize, oh, it doesn't. I just needed to talk. So kind of give them a little bit of rope to make sure that they can talk, that they can feel like they're being heard.

But once again, that is reinforcing that you're listening, because you'd be like, hold on, I'm not understanding. Remember, my role here is to understand. And I'm struggling.

How does this kick back to what we were talking about before? That's a way for you to kind of re-level set. I would also say that the other technique is to say, okay, you know what, can we just regroup and say, let's just make a list real quick.

And be like, what is your concerns? One, two, three, four, five. Let's just go through them real quick.

And then reiterating, so what I understand one is this, and re-synthesize it. And part of it, and actually I would rephrase it not as I understand, but what you are saying, what it seems like you are saying, because you're reinforcing that it's about them, is this. And you're saying it in a nice, succinct sentence.

One, that's going to help you understand later on what's going on. And two, that's a way for them to say, oh, yes, I'm done now. You understand.

Because part of this too is, you know, especially if also someone gets overly emotional, or that it's just a very emotional thing, that it's also okay to be like, this has gotten so off the rails because this person is so distraught. Like, let's just take a break. Let's do this again tomorrow.

Like, we've been talking for an hour. You're like, I've gotten nowhere in my questions because this person is really working through this. Like, you know what, we've done a lot today.

Let's just come back tomorrow. And that way that person has some time to just process instead of processing in real time with you. Super, super helpful.

Okay, I've got a couple other questions from the audience. I'm ready. So one, if you receive a complaint from a manager for inappropriate behavior, but it's anonymous, do you still complete an investigation?

And how should you change it based on the anonymity? Oh, good question. So I'm going to answer that in two ways.

One, yes, you still do investigations for an anonymous complaint. And two, if you get a complaint from a former employee, you also need to investigate those. But the ability to investigate those complaints are going to be constrained.

So with an anonymous complaint, you know, I don't recommend that you then go scorched earth to try to figure out who the anonymous person is. There's probably a reason they came for me in an anonymous way. But it's going to short circuit your investigation because you're not going to maybe have the resources.

You know, you're not going to be able to ask those persons all the questions. You may need to jump ahead to the subject more quickly. I would say, once again, this is where planning really comes into play, where it says, okay, let's you get an anonymous complaint about a manager.

But they have a team of three. It's like, great, I'm going to just talk to all three of them before I talk to the manager. Get a feeling, hey, talk to me about how things are going on.

Like, we've gotten a complaint about some conduct. Help me understand how things are going on with your manager. So you can't not investigate because someone, it's anonymous.

But how you investigate, it's going to be much more surgical. And in many ways, your hands are going to be tied. I will say that there's certainly been situations where through the recommendation that I have right now, where it's like, oh, there's only three people, let's just talk to them, see what's going on.

Sometimes the person will admit that they were the person that submitted the complaint. And then you can ask more follow-up questions. Fascinating.

I will also flag just for anyone in the audience, something that can help you throughout this process is making sure that you're providing anonymous outlets for employees to actually deliver reports or complaints in a way that you can respond to them anonymously. So, for example, like Athena has this with our hotline, an employee can submit a report anonymously. There's no way to know who they are.

But you can actually converse back and forth with the anonymous reporter so that you can get the information that you need to conduct an effective investigation. Yeah. And I'll just add to that because I've also seen other technology where it is even just an automatic response that can be sent.

So, I often see this as the external investigator. Think about if you have an anonymous complaint and you're not going to get any closure on it because they don't know who you are. But just hearing, okay, thank you so much, we've received your concern.

We are going to now start an investigation. And actually, I can ask at that point, like, here's the name of the investigator. We would love for you to talk to this person.

It gives them like a second bite at the apple to see if they're willing to participate. So, I love the idea that you have technology that enables the person to continue to engage in the investigation because that's really the hardest part. Yeah.

Also, I saw in comments a couple people asked if there are scripts and such. Yes. Chantel and I have actually partnered on these before.

So, at the end, we'll send a follow-up email that shares a link to those very tactical, here's a script, here's what you can communicate. But I will ask live because I think this one maybe isn't included in that template. You know, Chantel, you had said, like, hey, it's better not to start the investigation with, like, hey, you're the subject of X allegation.

But surely you have to reach out and communicate at some point. Like, I need to talk to you because an investigation is happening. What do you say to that person so that they don't feel like there's a gotcha moment when you get on that call?

Totally. Well, I think one of the things is, this is where human connection is so important. Let me answer all your questions you have about the process.

Like, I can't tell you how many times I've had conversations with the subject in advance, even as the external investigator, be like, okay, let me just demystify for you what's going to happen. Yep. And explain to them why I'm not giving them more information now.

And I also say, like, it really helps me make sure that from the integrity of the investigation, because you want me to do a good job. You want me to be able to analyze this information. It's a way to start building trust from the beginning.

And I would also say, when we think about the script, the other really important thing to remember is that it is really tempting to write out every single question that you're going to ask. I do not recommend that you do that. And the reason for that is a couple of reasons.

One, this is supposed to be a conversation. You're supposed to be listening. If you're not, if you're super focused on your questions, there's a chance that you're not actually listening fully to the response.

So you're better off writing topics and like, don't forget to ask this, like little bullet points, because that's going to keep you focused. For those of you that do public speaking, often people don't write the full script out. They keep like, this is this is what keeps me focused.

Something very similar. Additionally, it really helps on the back end, if there's litigation, because if you have questions, and then you have responses and questions and responses, it looks like you've transcribed a script. But we all know that you see another question in the middle, there was something else that happened.

And this review, like eliminates the any kind of optics that you're creating a script, and rather really memorializes that you're creating notes. And Chantal, just just so that we're getting like very, very specific here. I'm wondering, like even before the like, and ask me what questions you have about this process, like, you have to reach out to the person, right?

Sure. What do you say when you reach out to the person that is the subject of the investigation? So number one, it's about an issue of timing.

And I want to address that, first of all, because there's different approaches to this. If there's any concern that there may be retaliation, you really want to let the subject know ASAP. Even if they're not going to be interviewed for a couple of weeks, obviously, you don't want that to be the case.

But like, letting them know right away. And then and also letting them know that they can't talk about the investigation. Or if you're worried about like, you got a real chit chatty office, and they're going to find out like, you want to be the one to control the messaging.

Others folks, and in other situations, it makes sense to delay the letting the subject know until closer to their interview, one to minimize stress to help people continue to work together, and so on and so forth. When you're actually talking to the subject and letting them know, the key things that you're going to want to mention are who's the person doing the investigation, memorializing that it's going to be neutral, talking with them about how it is neutral. So for example, the person's going to gather all the facts, and they're not going to make any determinations until the end, once they see everything, right?

You're going to want to be talking about confidentiality, letting them know that during the pendency of the investigation, they can't talk to anyone in at the employer about the investigation or the subject matter of the investigation. And also reminding them about retaliation. And in particular, I always say, you know, let's also talk about, you know, the optics of retaliation, because it's, let's get real here.

Lots of times, a complaint comes up, and the person that made the complaint is in like the middle of performance management, or like something is something else is going on in play. So you're going to want to deal with that with the subject to say, okay, if there's anything that you need to do, you know, while this investigation is pending, you know, you're, there's somebody that you're thinking about putting on a pip, like there is, you know, an action you need to take where you're, what are your regular one on ones, let's collaborate together as HR to make sure that you inadvertently don't create an illusion that you're taking any kind of retaliatory steps. We want to make sure that you're protected in that way too, because at the end of the day, it's also about letting that person know that they are protected, like there is no, well, we're going to figure out what happened. A determination hasn't been made, like they are not, they're not on trial.

They are, you know, there is, there's no proof yet that they did the thing. We really need to look at it collectively. Yeah, I find a similar process is also helpful on the side of the person who's making the allegation.

So you know, like, is there, are there any meetings that ongoing recurring meetings that you have that are going to be problematic for you through this process or feel uncomfortable? Because maybe at that point, you press pause on any one on ones they may have with this person for the duration of the investigation, or, you know, maybe they need a day off to just clear their head. So I do find similar conversations are helpful.

And don't worry, all that's in those are in the templates. Let's move on real quick. I'm going to give us like three more minutes, and then we're going to have to pivot to demo.

So in a quick poll that we have for you all, we're getting a lot of questions around AI and recording. I think with the, you know, with AI coming on board, people understandably want to see how they can make this process more efficient. Can we do note taking?

Can we record the interviews themselves? Can we plug this into AI and have it synthesize information? On the other hand, there's this concern of does that, does that remove the idea of privilege?

Do we no longer have privilege as soon as we put it into a chat GPT or Gemini? Is that going to appear to have bias if we put it in? Does that create an unhelpful paper trail if we have recordings running loose about these investigations?

Any thoughts from you as an employment attorney? Yeah, I think the thing that we need to think about with AI is that it is constantly evolving. And I think about the AI that was just last year, it's completely different than the AI that is now.

So I actually encourage HR teams to revisit their practices and their relationship with AI. I've just put it on a cadence, just like how you revisit your handbook on the annual basis. It's like, all right, do we need to rethink how we approach AI recording whatever on an annual basis and do in essence like a pressure testing?

Where I currently sit on recording, for example, is that I don't record as a general matter. And part of the reason is because I was required to under a law in California to do a recording for a police officer investigation. There's this bill of rights that police officers, firefighters and so on so forth have that require recordings.

And I found that the AI transcript was actually inaccurate. It wasn't perfect, right? And at this point, everybody's going to think three years from now when they see it that it was perfect.

And additionally, if you're doing a recording, I would argue that it's hard to understand whether that's truly work product that you're creating or if it's just a recording. That said, in addition to revisiting it, I think when we think about privilege, there's been two cases that have come out in recent months which have said that if you have a phantom note taker or something like that in there and you have an attorney present, that could potentially waive the privilege. These are all unique state cases, so it may not apply to the state that you're in.

However, I do think that it's very like an indicator that the courts are concerned about this issue. So I also say you really want to think about how your AI is protected. Are you in a closed system?

That's really one of the key things. And then additionally, it should be a tool. And just like with every tool, you need to check it for bias.

You need to check it for is this actually what you think. Similar to that example actually I gave earlier in the webinar where the claimant was like chat GPT told me to do it. That's not why you want to do what you're doing is because AI told you to do it.

You want to use it as a tool to streamline. You want to use it as a tool to be more efficient. So for example, putting in your notes to say can you just create a timeline for me so that I don't have to spend the next three hours in writing one and then using that as a starting point.

There's certainly ways that we can leverage AI. You just need to be smart about it. Got it.

Okay. So I'm hearing, yes, there's use cases for AI, but right now you need to be very careful, maybe even talk to your IT team to understand who's going to have access even in this closed space. Are the admins going to be able to access this information?

Do you need your own HR specific account where you are the admin and nobody else can have access to it? If you have a recording, was there a note taker? Is there going to be some sort of email alert or do other people get access to this recording?

There's a lot of questions that you're going to want to ask before taking some of these approaches. It doesn't mean it's not doable, but it does mean be on the lookout because people have already run into issues with this today. So approach cautiously.

Okay. One last quick question and then let's turn it over to Demo. I think following up can be really difficult in figuring out what you say to people.

Actually, I would say communicating when a violation has been found, pretty simple, like, okay, we did a thing, let's communicate it. I think it's much harder when the answer is actually it doesn't sound like we were not able to substantiate the claim that was made. That can feel a little bit tricky to deliver in a way where people still feel heard.

Any tips for that, Chantel? Yeah. So I think number one, you need to really know what the full plan is.

You don't want to just go in and say, hey, it's unsubstantiated. Thanks for participating. It's been awesome.

You want to have a next step strategy. And even if the next step is like, hey, we now need to reintegrate you back with this manager. Let's talk about how we can repair the relationship.

Like, have a plan of action that there is a next step. There should always be a next step, not just thanks for participating. And I think that's where people, that's what organizations have not seized the opportunity of what it is that they've learned.

Additionally, like, let's look on the flip side. You could have somebody that's come forward with a concern and they're the only person that feels that way. Everybody else is like, no, this manager is amazing.

And this is not an issue. That's going to help inform what we talk about with next steps with this person. And like I said, it could just be, let's focus on relationship building.

Like, we're not seeing any there, there. We're not seeing, you know, other people are having these issues. Let's try to, you know, have a solution.

So I think that that's really important to have the full picture of when you walk into those conversations. The second thing I recommend is really knowing how your organization works. So for example, I had an investigation where I did not substantiate that someone had animus towards someone due to a protected characteristic.

However, as part of the analysis, it was very reasonable that this person thought that was true because of these other factors at play. And what ultimately the company asked me to do was make a finding as to that, because then they had the document to go to the business to get the manager, the coaching that the manager needed, because this was going to keep happening if they didn't correct the manager. So really knowing from your business, like what do they need?

If they hear something unsubstantiated, so they're like, great, there's nothing more to do. Really thinking about how it is you need to structure the findings in a way so that you can do the necessary remediation or next steps and that the report is powerful. Super, super helpful.

Chantel, thank you so much. We got so many questions. We're not going to be able to answer them all.

What I am going to do all is I'm going to pivot real quick into a demo, and then I promise we're going to share follow-up resources and Chantel's contact information if you want to reach out. Please stay tuned for, we're still going to share Sherman HRCA credits and codes in a second, as well as a quick poll. But before I do that, let me share real quick a cool little product feature that we have at Athena to make sure that all the pre-stuff is happening as well, right?

You want to make sure that you're educating your employees, one, so that they maybe don't do these bad things that could lead to investigation claims, and two, so that employees know how to reach out and where to reach out so they can reach out to you quickly versus waiting until things snowball, and so that they know how to navigate those difficult situations in the moment. So let me go ahead and screen share real quick. One of the things that we have found to be the most effective thing that you can do is actually, let me screen share this, is actually making sure that your training is relevant to your company culture and to your needs.

Chantel, you spoke a lot about making sure you understand your culture and making sure that you understand what the needs are. What are the common situations that maybe come up at your company that you need to be on the lookout for? And so one of the things that we've done at Athena is we have, of course, our off-the-shelf harassment prevention training, code of conduct, whatever it is, but we know that it's more important than ever, especially in the age of AI, that you be able to customize that to your needs.

So one of the very cool functions that we have is you can actually customize our off-the-shelf trainings yourself in an app. So you can go to the training session and it can show you, here are all the slides that we have for this live training. Now you could go one by one and say, I want to change this, I want to change that, or you could say, you know what, I just want it to be overall better suited to our company culture.

I want it to have better examples that reflect our needs. Oh, and by the way, here are two common tricky things that come up that I want to make sure are incorporated into the training. I'm going to just copy and paste a very brief prompt here into our AI training agent.

It says, make this relevant to Nike. So imagine you work at Nike. Pull in some pictures and our brand color slash style from our website.

Here's a link. Maybe you even want to drop in a copy of your code of conduct and reference sports throughout so that it really feels Nike. And then you would just click enter and it would go ahead and it would start thinking and doing its thing.

Now this takes roughly between two and four minutes to fully process an entire training course. So to speed things up while that is processing, I'm actually going to show you what this same prompt spit out earlier today when I did this just before the webinar. So this is a reminder.

This is where we started from. Above and beyond, pretty generic picture because this is made to suit all kinds of companies. Here's a check on learning.

Again, pretty generic examples to make sure that it applies to a broad reach of people. Now this is the one that came back after I put in this prompt. You can see that as you look through the images, you're seeing that the images are completely different.

They're much more suited to reflect a sports themed company. You can see they're doing product talk. Now in this particular example, funnily, you can see I tried to have it update it to include the Nike checkmark logo and it said, no ma'am, you don't have the rights to use Nike logos.

So I'm not going to let you do that, which I love. And so if you were, if it was your company, then you would be able to plug it in with your rights and all those things to have it tailored to you. And then the images would even be more customized.

And what's really cool about this is it doesn't just make changes and then you have to freak out about like, what changes did it make? And maybe I'm not okay with those changes. It will actually highlight every single change that it made so that you can approve or deny it.

Nope. Don't want this one. Yep.

I want this one. Oh dear Lord. Thank God we are reviewing because AI got that one wrong.

Or wow, what a great example scenario. I hadn't thought of that myself, or you know what? That scenario is close, but not quite it.

Let me give it another prompt to just tweak it a little bit. I've heard of a lot of HR professionals who are having to like go into chat GPT, go into the stack builder tool, go into Synthesia to create these videos. We have it all in one at Athena so that you have top level state of the art AI tools all embedded in one tool versus you having to go and pay for all these different AI tools.

It's just all here in our training course builder. And we're actually rolling this out to all of our tools. So from hotline to case management to disclosures, all of those are going to have training agents or agents, their own agents over the next couple of months.

So if you're interested in a more AI forward way to do compliance, highly encourage you all to check us out. In fact, Peter's going to put up a poll just to check for your all's interest and any questions that you might have. And then I'm going to quickly screen share our HRCI credits for anyone who came for that.

And then we will set you all free. If you all could just take a minute to fill out that poll. Okay.

Oh, thank you so much. I really appreciated this conversation, Chantel. I feel like I always learn something new when I'm having calls with you.

And I don't know if you can tell, but sometimes I'll ask questions because I'm genuinely, I'm like, wait, what's the answer Chantel? Any final words for the audience from you? Well, I could talk to you for hours.

So thank you so much for welcoming me back. And I just, the main thing I want all of you to think about is that investigations and concerns that are raised really level set yourself and change how you, your mindset about them. They are opportunities.

It is through conflict that your culture can actually be defined and thrive. So while it can be very challenging in the moment, lean into that resilience muscle. And at the end of the day, you'll have a stronger company.

Awesome. Thank you so much, Chantel. I'm so glad we had you on the call.

You always bring not just the legal side, but that really human HR side of things, which is just so critical to an effective employee investigation. Thank you so much. Thanks all.