He Said / She Said · 9. Fidgeting, drumming fingers or rearranging themselves. 10. The suspect...

Speaker:

Kim Parker, President & CEO

California Employers Association

He Said / She Said Assessing credibility throughout the

employment life cycle

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100% of Half the Story

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What We’ll Cover

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The importance of credibility in the

employment life cycle

Assessing credibility when hiring

Conducting an effective investigation

Assessing credibility in workplace

investigations

He said/She said situations

Reaching a determination

Avoiding liability in termination decisions


Credibility: the quality of being believed or accepted as true, real or

honest

The Importance of Credibility

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Assessing Credibility When Hiring

Resume (not alone)

Job Application

Interview Questions

Phone references

Background checks

DMV records

Drug Tests


Tools to Assess Credibility Interview Do’s and Don’ts

Do: Hire Slowly Do: Ask about past work

performance, experience.

Do: Ask open ended behavioral based questions.

Don’t ask about age, religious beliefs, marital status, economic background, disabilities, sexual orientation, etc..

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Red Flags on Job Applications

Lack of information regarding past employer for reference checks

Reason for leaving past job left blank

Prior salary information left blank

Excessive cross-outs and changes

Applicant cannot recall the name of a former supervisor


Red Flags 1-5 Red Flags 6 - 10

Signature is missing

Applicant does not sign consent for background screening

Applicant leaves criminal questions blank (ban the box exemption)

Applicant self-reports a criminal violation

Gaps in employment history

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Post Offer/Pre Employment Testing

Company must pay for exams, all employees must be subject to same exam for same job

Drug/Alcohol Testing – pre-employment

Psychological Tests (no religious belief or sexual orientation questions, caution on these tests)



Employers have an obligation to investigate whenever they

learn about a claim of wrong doing. EEOC

Assessing Credibility In Investigations

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Claims of Wrong Doing

Formal complaints

Informal complaints

Anonymous tips

Rumors

Third party information

Information obtained during exit

interviews

Graffiti


“Investigations commenced within a few days of the complaint

and completed within two weeks have been upheld by courts as

timely.” David I. Weissman, Ford & Harrison LLP.

Conducting an Effective Investigation

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Investigation Basics

The best

investigator

is one who

is neutral,

experienced

and

objective.

-EEOC

1. Interview Prep – gather the facts, prepare

questions

2. Introductions with complainants, subjects

and witnesses, maintaining confidentiality

3. Interview the complainant first – use

templates

4. Interview the subject (the accused) second

5. Interview any witnesses last

6. Assess the credibility of each interviewee

7. Interview wrap up with each person

8. Reaching a determination (conclusion)

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Background Questions Set Tone


Gauge the willingness to answer questions, the

reliability of his or her responses, and create a

relaxed environment.

How long have you worked for the company?

What are some of the responsibilities of your role

in the company?

How would you describe the company’s culture?

Establishing rapport causes people to relax and trust

you and gives you a baseline for future questions.

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EEOC Questions for Complainant

Take care

to avoid

expressing

pre

determined

conclusions

Who committed the alleged harassment? What exactly occurred? When did it occur and is it still ongoing? Where did it occur? How often did it occur?

How did you react?

How did the harassment affect you? Has your job been affected in any way?

Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it?

Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?

Are there any notes, physical evidence, or other documentation regarding the incident(s)?

How would you like to see the situation resolved?

Do you know of any other relevant information?

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EEOC Questions for the Subject

(Accused)


Take care not to give the impression that he/she is presumed guilty.

Watch for tone and body language.

Make this a conversation not an interrogation.

What is your response to each allegation?

If the subject claims that the allegations are false, ask why the complainant might lie.

Are there any persons who have relevant information?

Are there any notes, physical evidence, or other documentation regarding the incident(s)?


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EEOC Questions for Third Parties


The investigator should refrain from offering his or her opinion.

Deeper questions must be tailored case by case…

Witnesses can help you determine the accuracy of the complaint.

What did you see or hear? When did this occur? Describe the alleged harasser’s (persons) behavior toward the complainant and toward others in the workplace.

What did the complainant tell you? When did s/he tell you this?


Are there other persons who have relevant information?


If there are conflicting versions of relevant events,

the employer will have to weigh each party’s

credibility.

Assessing Credibility in Investigations

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EEOC Credibility Determinations

1. Inherent plausibility

2. Demeanor

3. Motive to Falsify

4. Corroboration

5. Past Record

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1. Inherent Plausibility


Inherent plausibility: Is the testimony believable on its face? Does it make sense?

Did the person’s chronology of any events he or she related differ greatly from the chronology of any other interviewees?

Did the person give you a plausible explanation of why an issue may have been raised?

Was the person forthcoming or did you have to “pull” information from him or her?

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2. Demeanor


55% of our

messages are

communicated

through our

physical

behavior and

appearance.

38% from the

sound of our

voice.

-Prof Albert

Mehrabion

Demeanor: Did the person seem to be telling the truth or lying?

What was the demeanor/”body language” of the interviewee

How did he/she react to the allegations?

Does this person inspire confidence in the listener?

We need a baseline for comparison. How does the interviewee’s demeanor compare to the way he/she “normally” acts?

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Black Book of Lie Detection


1. The suspect nods or shakes their head in a manner inconsistent with the answer they have given.

2. The suspect rubs their forehead or strokes the back of their neck with their hand.

3. Delayed nodding in support of an answer they have just given.

4. Perspiring, trembling and blushing.

5. Gulping or finding it difficult to swallow.

6. Touching their nose – The “Bill Clinton Effect”

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More from the Black Book


7. Placing of the hand near or over their mouth.

8. Rubbing the eye. This trait appears more in men than women.

9. Fidgeting, drumming fingers or rearranging themselves.

10. The suspect uses less emphasis when speaking.

11. Increased shuffling or moving of feet.

12. Avoiding physical contact.

13. Placing objects between you and them when being questioned.

Source: I-sight, www.investigationsystem.com

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3. Motive to Falsify


Motive to falsify: Did the person have a reason

to lie?

Will lying benefit them?

Are they protecting someone?

Fear of retaliation?

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4. Corroboration

Any witness testimony or physical evidence?

testimony by eye-witnesses (were they credible?)

people who saw the person soon after the alleged incidents or who discussed the incidents with them around the time that they occurred

Did the interviewee make any admissions during the interview?

Was the person’s version of the facts different from anyone else’s version?

Written Documentation?: Written statements, diaries, logs, time sheets, payroll logs, photos

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5. Past Record


Past record: Did the alleged (harasser) have a

history of similar behavior in the past?

Is there any Circumstantial Evidence? Things

the accused has said or done in other situations

which make it more likely than not that the

fact(s) in dispute actually happened?


Taking immediate and appropriate corrective action may result in

an apology, more training, discipline, suspension or discharge.

Reaching a Determination (conclusion)


Ending an employment relationship properly will have a huge

impact on reducing your company’s liability. There is no need for

drama or disrespect.

Ending the Employment Relationship

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What To Say When Firing

Someone

1. Schedule a meeting in private location

We need to discuss some issues today at 4.

2. Be honest, polite and businesslike

I have some information I need to give you.

3. Stick to the facts

We’ve finished our investigation…

4. Be Brief and specific

Today is your last day of work.

5. Don’t delay the news - 10 minutes or less

Let’s review the final paperwork…

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How Important Is It to Fire

Someone the Right Way?

Not Treated With Respect

Considered suing

Sued employer

Did not sue

71%

19%

Treated With Respect

Considered suing

Sued employer

Did not sue

96%

1% 3% 10%

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CA Required Termination Paperwork

“Notice to Employee as to Change in Relationship” COBRA forms – if the employee receives health

insurance EDD “For Your Benefit” pamphlet (Form DE 2320 EDD) Final paycheck (at time of termination or within 72 hours)

with all accrued vacation/pto HIPP – Notice to Health Insurance Premium Payment

Best Practices

Have a witness present. Have the employee sign a voluntary resignation form if applicable. Conduct an exit interview or allow the employee to take it home . Use a termination checklist, signed off by both the employer and

employee, stating each party has received what it was owed.


Catran v Rollins Hudig Hall International Inc., 69 Cal Rptr 2 900 (1997)

EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors

Make sure you have the WHOLE Story!

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He Said / She Said · 9. Fidgeting, drumming fingers or rearranging themselves. 10. The suspect...

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