I tried resisting the urge to capitalize on the sensationalism of the NFL’s “Deflategate” scandal but I couldn’t resist. It is an absolutely fascinating news and sports story, and as an HR Pro, the parallels between what is happening with the NFL and this investigation and what occurs in the workplace are just too obvious to ignore. If you want to know more than you ever need to know about the actualy NFL story, just Google “Deflategate; NFL, Wells Report.”
If you can’t be bothered to read the thousands of articles on this, here are the salient points from my perspective (full disclosure – I am a diehard New England Patriots fan):
- There was a complaint brought forward by a team in the NFL (National Football League), that another team (The New England Patriots) was cheating. The allegations were that the Patriots were using underinflated footballs (i.e. below the league mandated minimum PSI).
- The league conducted a combination of a ‘sting’ operation and an all-out investigation into the matter which included interviewing league officials (from the game in question), New England Patriost support staff members (ball boys) and the quarterback of the Patriots, Tom Brady.
- The league hired a (supposed) neutral third party investigator to investigate the alleged cheating. The investigator, (Ted Wells), after an almost 4 month investigation, wrote his report on the matter and determined that it was “more probable than not” that the Patriots and their QB cheated.
- Based on the report, the league heavily fined the Patriots organization, stripped them of two key draft picks (currency in the NFL) and suspended their quarterback/star employee, Tom Brady, for 4 games (25% of the upcoming season).
- The entire situation has now turned into a circus as the Patriots are appealing the sanctions; Tom Brady is appealing the suspension (which is his right as a unionized employee under the CBA) and is also threatening to take legal action against the league for defamation of character (as he has outright denied any and all alleged cheating.) In general, the league and its Commissioner (Roger Goodell) are being scrutinized in some circles for acting so harshly on the inconsistencies of the report, their inconsistencies in handing out punishment to players in general and how they went about the entire investigatory process. Bottom line – the very fabric of the league is being questioned.
Now, whether you are a fan or not of the Patriots or football in general, there are a lot of lessons to be learned here by organizations and their HR folks. Similar situations can and do play out in the workplace like this all the time. Typically the complaints are for things like conduct issues – harassment/sexual harassment and code of conduct violations like theft, time theft, etc. Most times, HR is called in to get to the bottom of the situation and make a determination as to what happened. So, based on lessons learned from past experience AND from how the NFL and Ted Wells have handled things, here are some tips on how to handle your own (potential) workplace investigation:
- When conducting an investigation, make sure that the investigator is neutral. That is, if HR was involved initially with the matter, (i.e. dealt with previous conduct issues involving the parties in question) you should hire a 3rd party investigator to handle an official complaint, say, of harassment. The NFL used an investigator that they had used on a previous investigation (Bountygate) whose approach and the results thereof were questioned by many of the league’s players and owners.
- Be clear as to what the purpose and outcome is of the investigation. That is, it should be to determine if there was any wrong doing or any violation of a policy, human rights or labour law. The organization and its investigator need to be completely transparent in their objectives and approach. You can’t enter the investigation with a particular bias or slant in terms of the outcome you are looking for or are hoping for. The only outcome you are looking for is the truth which is hopefully based on facts.
- As it pertains to harassment investigations, you cannot overlook anything that the complainant or defendant brings up, whether before, during or after the investigation. That is, if someone identifies an additional piece of information that corroborates their story, or identifies a new “witness” to the events, the investigator has an obligation to meet with these identified employees and not overlook or throw out the ‘evidence.’
- As an investigator, it is acceptable to use words like “reasonable”, “probable”, and “lack of credibility” in your report. However, they must be linked to facts and findings that you have uncovered and not based on “gut feeling.” Additionally, you must maintain your credibility and objectivity by not “leading” witnesses and respondents. It is not your job to place doubt in their mind about what they remembered or have seen. It is ok to ask additional probing questions or if there are inconsistencies in their story, you can repeat what they said, tell them you are confused and then ask them to “help you understand” a bit better. Let them do the talking and you as the investigator do the listening.
- When it comes to workplace investigations, HR and/or the investigator, have to come to some sort of a conclusion, based on its investigation, whenever possible and practicable. If there is direct evidence (witnesses, video recording, and employee admittance) we can come to a probable conclusion of a violation. If there is conflicting information, conflicting witnesses, etc., we still may be able to come to a conclusion based on a balance of probabilities approach all of which must be based on key findings…not opinions.
- When it comes to potential punishment, we also have to keep in mind that Canadian law demands a more nuanced approach to the employer’s response vs. “zero tolerance.” This requires us to balance the conflicting interests of the complainant and respondent and come to a conclusion and recommendation.
- When looking at points #5 and #6, HR has to factor in things like the previous history of the complainant and the respondent. Has the complainant ever made false claims before? Has the respondent ever been disciplined for conduct and/or related issues before? What is the credibility and history like of the witnesses for both parties? What is the organizational culture like? Is there culpability on the company’s part? Has the company allowed a “relaxed” approach to its rules and how they have dealt with conduct issues? Has a particular supervisor been lax in managing issues similar to this? Have they created a poor work culture and the respondent/defendant is only partially to blame? In essence, is their joint culpability here?
- Based on the finding and recommendations in the report summary, is the discipline that is handed out consistent with what has been done in the past and/or does it align with organizational policies? All of these things need to be considered in order to maintain the credibility and integrity of the investigation, the investigator and the organizational reputation.
As you can tell by this list, workplace investigations are pretty tricky and must be handled with the utmost of care. Unless you work for a public organization, your investigations won’t be open to as much public scrutiny as the NFL’s are, that is, unless you are sued or a human rights complaint is filed against you. If this happens, your investigation has to pass the sniff test to make sure you followed points 1-8 above.
The NFL could have saved themselves a lot of current and future pain by following some of these points. They should have hired a different investigator, one who hadn’t handled a recent complaint against players. Instead of conducting a sting operation into the alleged rules violation, in other words, let’s try and catch them doing it and then investigate, they could have simply “coached” the team(s) and its player(s) on what the rules were and how to conduct themselves. Think about that for a minute, in the workplace, if a harassment complaint is brought forward, do we then try and catch the alleged harasser in the act before we investigate!? No, so why did the NFL act this way? At the very least, they should have investigated right away and concluded the investigation much sooner. In the workplace, taking 4 months to investigate a harassment complaint will never fly!
Finally, the league should have taken into consideration the player’s previous history (Tom Brady). That is, he has never been investigated and/or subject to any league discipline of any type before. There was no actual evidence found linking him to a rules violation so instead, the investigator placed their own interpretation on what they found instead of letting the evidence “talk” and drawing conclusions from the facts.
The final punishment was very inconsistent with what the league had done in similar matters in the past. This is an especially egregious mistake as the league had created its own culture issue of looking the other way in similar matters and/or coming down lightly on previous rule and conduct violators. Their prior history of serious public missteps in dealing with previous conduct/personal conduct issues may have been one reason for why their punishment deviated from past applications. In this case, the league has decided to treat this case of alleged rule violations similar to how they (finally) treated other previous conduct issues like domestic violence. The inconsistencies are appalling and if any business handled itself this way, it would find a series of scathing reviews on GlassDoor (at a minimum) and probably a host of Human Rights complaints and civil suits being launched against it. As always, I welcome your comments and feedback.
Image courtesy of frankieleon/Flickr.com
Filed under: balance of probabilities, investigation conclusions, investigation summary | Tagged: civil suit, conduct, Deflategate, employment brand, harassment, harassment investigations, human rights, investigations, New England Patriots, NFL, organizational culture, Scott Boulton, The Armchair HR Manager, Tom Brady, workplace culture, workplace investigations | Leave a comment »