Accused of Wrongdoing at Work: What to Do
HR Wants To Talk To Me About A Confidential Employee Matter?
What To Do When An HR Investigator Calls
Having been a corporate Human Resources (HR) Investigator for two Fortune 500 companies, I became accustomed to ruining an employee's day with just a simple phone call. It was all quite unfortunate. Really.
Over time, however, I learned how to emotionally distance myself from that part of the job.
Hearing from me often meant an employee was first discovering there was an allegation of misconduct against them. Usually the allegation was serious: harassment, discrimination, theft/fraud, conflict of interest. You get the idea.
Typically, the employee's heart sank. I could tell. Some even joked with me that they felt panic or dread when they saw my number appear on their caller ID, wondering what they had done. Some already knew.
Although I wasn't seeking to ruin anyone's day, asking questions and reaching a finding was just part of my job. Call it a fact-finder.
Present Your Best Self
There's an old saying: There are always two sides to every story, then there's the truth. So if you've just received that heart-pounding call from HR, how can you present your perspective in the most positive light? After all, here's what could be on the line:
- your promotability within the company
- your professional reputation, and
- even your job.
So wipe the sweat off that brow. A lot is riding on the success of this discussion. You must be ready to present your best self.
Dude, Just Ease Up
When you are contacted by an HR investigator, you may feel a variety of intense emotions:
- Your head may throb with angry and resentful thoughts of a coworker who has finally escalated an ongoing conflict.
- You may feel shocked and confused because you have no clue who would want to hurt you this way.
- You may feel frustrated that HR is wasting your time asking questions about what you feel is a fabricated complaint.
It is normal to have these feelings.
Uh, Oh! What Have I Done Now?
HR Investigators are best described as
Even Though It's Difficult, Stay Focused On Your Work
Before You Vent To The Investigator
Before you bend the investigator's ear, however, hold on one minute.
This is an allegation of wrongdoing—a claim without proof at this point. Anyone can allege practically anything. HR has a duty to investigate all claims of inappropriate behavior. Often it's a legal duty, depending on the allegation involved.
As a fact-finder, it is the investigator's role to be neutral, to listen to all relevant parties, review evidence, and then make a determination. You don't want to get all emotional at the person who will decide the outcome of your case, do you?
If you over-react, you could be demonstrating first hand for the investigator that what the complainant says is indeed true (e.g., that you're hot-headed, loud, rude and threatening, emotionally unstable).
Instead of over-reacting, take a deep breath. Put on your big girl panties (or big boy undies). Use a calm, steady voice to describe your emotional reaction.
For example, you can express that you are:
- surprised because you're an excellent employee with 10 years of unblemished service with the company
- disappointed that the complainant did not first attempt to approach you with the problem, or
- that this is the first you're hearing of a problem (if that is indeed true).
If you believe the investigator will find no merit to the complaint, confidently say so. Commit to full cooperation so that the complaint can be resolved quickly and you can get back to your job.
What Rights Do You Have?
All states except Montana presume employees to be at-will employees, unless their employment is modified by contract.1 Union employees and high-level executives, for example, work under an employment contract.
They Can Do That?
At-will employment means the employer can hire, fire, suspend or discipline an employee at any time, for any reason, or for no reason without incurring a legal penalty. In addition, the employer can change the terms and conditions of the working relationship based upon its business needs (e.g., reduce pay and benefits).
The converse of this working relationship is also true: the employee (you) may sever his employment ties should he see fit.
There are several exceptions to the at-will doctrine, such as retaliation or illegal discrimination. An employer cannot legally terminate an employee on account of the employee's sex, national origin, race, religion, color, age, disability, veteran status, or other legally protected status. Exceptions tend to vary by state, so check with the Department of Labor in your state for details.
Relax A Little (But Not This Much)
The Bottom Line On At-Will Employment
At-will employers have a lot of leeway. Therefore:
- As long as there is no discrimination or other violation of law, they are not required to maintain fair procedures (although it would be smart to do so).
- Unlike in criminal court processes, an at-will employee does not have the right to remain silent or to confront his/her accuser.
- The accused does not have a right to be represented by an attorney.
- The accused does not have to consent to discipline. Discipline can range from a letter to one's personnel file to discharge of employment.
Don't Automatically Assume You're the Target of the Investigation
If It's Not a Convenient Time to Talk, Then Say So
Say that HR contacts you when it's not a good time to talk—for instance, when you're driving, heading off to a meeting, or when you cannot talk without being overheard.
Don't agree to answer "just a few questions" about a confidential employee matter when you are unable to give the investigator your full, undivided attention. The stakes are too high.
It's also not a good idea to discuss the matter when you have an audience, even if it's your cubicle neighbors. You don't know what the issue is about yet. Your cubicle neighbors could be involved somehow.
Reader Experience Poll
Have you ever been accused of wrongdoing in the workplace?
What To Tell the Investigator
If you are in an environment where others can overhear you, offer to call the investigator back from a private location such as an unoccupied conference room or empty office.
If you don't have time to talk, politely tell the investigator that you are a heading off to a meeting (or whatever the case), and offer to reschedule. If the investigator nevertheless presses you to continue the conversation, push back with the statement that "the investigation is important to us both, and you deserve my full attention."
Above all, be professional and courteous.
You Say I've Done What? Seriously?
Humanize Yourself As the Person Complained About (PCA)
A person who has an allegation filed against them is called a Person Complained About (PCA). When an HR Investigator meets with the PCA, she has typically already met with the Complainant.
She's heard the ugly details about your alleged misbehavior. In addition, the Complainant probably has also shared any history of the relationship between you two. At this point, the investigator usually has a lop-sided picture characterization of the PCA as an awful employee, mean coworker, and spiteful human being.
But thankfully, she is calling you to talk with you personally.
Put Your Best Foot Forward With the Investigator
Establish A Personal Connection With the Investigator
You must disabuse the investigator of the Complainant's negative characterizations of you as an evildoer. Understand that going into your interview the Investigator has heard a one-sided story. You need to tip the scales in your favor.
Use all the charm you have in your personal toolbox. You're not just another "case" or PCA. Instead, ensure that she perceives you as an employee who made an honest mistake — or as someone who has been terribly misunderstood, falsely accused, etc.
Establish a warm rapport early on so that the investigator sees you as a human being. Look for similarities between you both. Engage in brief small talk, as appropriate, without delaying the investigation (e.g., "I remember you. Didn't you previously work in the HR Benefits department?").
To counter your negative portrayal by the Complainant, you can also interject relevant information about your work history and relationships with others throughout the conversation.
For example, if this is the first complaint against you, calmly say so. If there is someone who repeatedly files unsubstantiated complaints against you, volunteer that information and ask for the investigator's help.
Establish a connection with the HR Investigator so that she knows you as a person, not just as a PCA.
If You Think All Complaints Have Merit, Think Again
Not all complaints have merit. I typically substantiated about one-third of the complaints I investigated. This was in line with company norms and industrial averages.
Some of the more vivid examples of unsubstantiated complaints included:
- Anonymous allegations of drug abuse, foul and abusive language, and egregious sexual misconduct against the least likely of subjects (e.g., a very straight-laced employee).
- Claims by an employee's ex-husband that a manager used sexual harassment to "lure" the man's ex-wife and many other women away from their spouses. The jealous ex-husband had a record of following her and making unfounded allegations.
- A co-worker's repeated complaints that her entire work group was spying on her, pranking her work station, hiding key documents, and trying to make her think she was "crazy." The woman eventually disclosed that she suffered from paranoid schizophrenia and was off her medication.
A professional investigator will approach each investigation with an open mind. He or she will review the facts and reach a decision based on the evidence. Cases are often not what they seem to be at first blush.
Don't Treat the Investigator As Your Opponent
You may feel like you are in the dark about the complaint against you. The investigator may withhold some important details about the complaint (e.g., who complained, the exact nature of the complaint, what witnesses have been talked to).
Thus, try to gather information from the HR Investigator in a non-confrontational manner. Ask her, "What can you tell me about why we are here?" or "What can you tell me about the complaint against me? I've never been through this before."
Listen carefully to her response and ask details, clarifying when you can (e.g., "So am I being accused of sexual harassment?") Be sensitive when she's ready to move on, however. All complaints have to be investigated, and you might just be blowing the situation out of proportion.
It's No Fun Being Under the Microscope
Before your conversation ends, be sure you understand the following:
- The investigator's name, phone number, and email address
- What the investigation process involves
- The expected time frame for resolving the complaint
- How you will know when the matter is resolved and who will notify you
- Whether it is simply "business as usual" while the investigation is ongoing
- Whether you are permitted to speak with anyone else about the investigation (e.g., spouse, boss, co-workers, clergy, therapist, etc.).
If you had a complaint against you, could you get a fair hearing from your HR department?
Help Resolve Your Complaint
Make the Investigator's Job Easy
Although this is the only complaint you are involved in, the investigator probably has a docket of many other cases. Thus, you can help yourself by making her job as easy as possible.
Offer precise times and dates when possible. Answer the investigator's questions directly. Be succinct. If you don't know the answer or don't remember, say so. Guessing could backfire on you.
Establish Your Credibility
The investigator is determining your credibility as you speak with her. Ask yourself:
- Do you make misstatements then correct yourself upon further questioning?
- Do you verbally attack the complainant, witnesses, or others who are discussed during the investigation?
- Do you acknowledge your own shortcomings or your role in a conflict (especially if it's obvious)?
- Are you attempting to bully the investigator? (Not a good move, especially if you're being investigated for alleged bullying behavior!)
As an investigator, there have been PCAs that have impressed me with their candor and maturity. Rather than denying knowledge of the alleged behavior, they immediately owned up to it, said they regretted their actions, and told me why. This short-circuited the investigation.
Workplace Conflicts Are Headaches Indeed
Understand the difference between making a false allegation—that is, deliberately lying about your actions—and simply misunderstanding your behaviors or intentions. Sample reasons for false allegations include revenge, bullying, and romantic relationships gone wrong.
If the allegation is a misunderstanding, can you help the investigator reasonably explain away your actions?
If instead you assert that the Complainant has filed a false allegation, answer the investigator's burning question: "Why?" The investigator is interested in what motive would compel someone to fabricate a complaint against you. Messing with someone's livelihood is a pretty mean thing to do.
Provide the Names of Corroborating Witnesses
When relevant, suggest the names of witnesses who can corroborate your story. Specifically state what the value of the witness is to the investigation. For example:
"Mary Smith and John Green can both tell you that during our team meeting on July 15 between 2-3:00 p.m., the Complainant specifically told the group that she was not offended by my comment."
Offer Supporting Evidence
Provide the investigator any important evidence that supports your point of view. Examples include emails, performance and training documents, voice mails, etc. When possible, transfer such documents to her over email. (You may need proof you supplied it.)
Sometimes you may also have evidence that points in the opposite direction of your guilt (called "contrary indicators"). For a discrimination claim, for example, you may not have promoted the Complainant, but if for example, you recommended her for an award and appointed her to a key committee, then that tends to refute your discriminatory intent. Offer the information.
Don't Be Your Own Worst Enemy
Watch Red Flag Behavior
Whether they are meeting with you in person or talking with you over the phone, investigators are alert for red flag behavior.
Here is a quick overview of facial and body expressions as well as other behaviors that could indicate a problem, particularly when you exhibit them as a part of a pattern:
- defensive postures: arms folded tightly in front of your chest, hands in pockets, hiding hands
- signs of deception: rapid blinking, lack of eye contact, touching your face a lot, heavy sweating, fidgeting, nervous swallowing
- dominating behaviors: loud tone of voice, interrupting, swearing, frequent repetition, glaring, invasion of personal space, pounding fists, pointing, attempting to take notes on the investigator during the investigation
- passive behaviors: becoming quiet and withdrawn, slumping posture
- deflecting responsibility: "dropped" calls at critical points in the conversation (if this interview is via phone); counter complaints; you blame everyone else
Exhibiting these behaviors won't further your cause.
If You Are Guilty, Go Ahead and Just Take Your Lumps
If You're Guilty
Some of the most unfortunate situations have involved employees who lied during the course of the investigation, often out of embarrassment or fear of repercussions. For example, more than once I have encountered a star employee who turned a minor violation into a terminable offense by lying about it.
These folks didn't have to get themselves fired. People make mistakes in both their personal and professional careers, and they could have simply owned up to it. Whether through security videos, time card records, multiple witnesses to the contrary, or recantations of your previous statements, evidence will often make it obvious that you lied.
Being lied to is an assault on one's integrity, and the investigator does not appreciate it. If you have engaged in misbehavior and are tempted to lie to cover it up, take your lumps. Own up to what you've done and move on, whatever that involves. You could be out of a job regardless, but at least your integrity will be intact.
My experience as an investigator is that eventually the truth has a way of catching up with people.
A Stressful Experience, But It Will Be Over Soon
Allegations of misconduct in the workplace can happen to anyone. Now that it has happened to you, commit yourself to seeing that the complaint is resolved quickly and fairly. Put your best foot forward during the investigation using the following tips:
- Stay calm rather than venting emotionally. The HR investigator is not your therapist.
- If the investigator contacts you at an inconvenient time, ask up front to reschedule.
- Connect with the investigator so that she sees you as a person, not just a PCA (person complained about).
- Gather key bits of information about the complaint, the process, and the follow-up.
- Help resolve the complaint by communicating clearly, establishing your credibility, addressing motive, and offering both evidence and the name of any witnesses.
- Watch red flag behaviors that could trip you up.
- If you are guilty, be an adult and just take your lumps.
1Guerin, Lisa. "Employment At Will: What Does It Mean?" Nolo.com. Accessed September 20, 2013. http://www.nolo.com/legal-encyclopedia/employment-at-will-definition-30022.html.
2Lucas, Suzanne. "I was falsely accused at work -- now what?" CBS News. Last modified January 16, 2013. http://www.cbsnews.com/8301-505125_162-57564213/i-was-falsely-accused-at-work-now-what/.
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.
Questions & Answers
Where do I find a lawyer who will defend me against false accusations of a hostile work environment? In my situation, it is all my word against theirs, and the investigator took stock in their word and not mine. I believe they collaborated and got their stories together before their interviews. I did not have that opportunity. I am in a situation where the management wants me gone anyway, so I feel like this was a sanctioned hit.
First, be aware that most companies do not permit attorneys or anyone else to represent an employee during an internal investigation. The exception will be being represented by your union steward if you work under a collective bargaining agreement (labor contract). You can always ask, but expect to be turned down.
Even so, an attorney consultation may help you to assess the strength of your case and provide specific legal advice. The lawyer can be especially helpful if the company fires you or otherwise severs your employment.
Alternatively, if you later file for unemployment or file an external complaint with a government agency such as the EEOC, the lawyer can be helpful in arguing on your behalf. (They are NOT required; you can always represent yourself. However, they know the process better and can be your paid advocate.)
If looking for an attorney, you're looking for one who specializes in employment/labor law. The best source is a reliable person you know and trust who is an attorney or paralegal himself/herself. Ask for a word-of-mouth recommendation. If you can't get that, try www.lawyers.com or www.findlaw.com and look for an employment attorney who is licensed to practice in your state. These types of sites provide names and details on attorneys in your area. You want someone who represents plaintiffs/employees.Helpful 22
Can I record the conversation with an investigator?
Technically yes you "can," as it's easy to do on any smartphone or iPad, for example. What you're really asking, however, is SHOULD you?
I would emphatically advocate that you 1) become aware of any company policy explicitly forbidding such behavior and 2) know your state law. If you're talking via telephone to an investigator who is out-of-state (i.e., at a corporate office or another facility), then you need to know where they are physically located as well. You'd be dealing with multiple states' laws in that situation.
Why is location important? Some states require that all parties have to consent to recording a conversation, whereas others require that only one party needs to consent (even if that person is you, the one doing the recording).
There are currently 12 states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington) that are two-party consent states. Often, company policies forbid all surreptitious recording on company property or in the course of company business; this may be much more restrictive than state law, and you could end up losing your job for violating company policy, if caught. Be smart about your choice.
As an alternative to surreptitious recording, you might try thoroughly documenting your conversation right after it ends. (Doing so during the meeting is perceived as hostile. It's also hard to answer the interviewer's questions and also document the conversation.) Focus on your performance during the investigation interview instead. Get as much as the conversation verbatim while it's fresh in your memory. Or ask the investigator for a copy of their notes, if s/he'll supply them. Most won't, but hey, it's worth a shot!Helpful 2
Is it legal to fire someone if they were accused of sexual harassment without an investigation by HR? If HR receives a sexual harassment claim or racial comments claim, do they have a legal obligation to speak to the person accused?
HR has a legal and ethical obligation to do a fair and impartial investigation of alleged employee wrongdoing. If they fail to do so, they open the company up to potential wrongful discharge claims as well as other risks. For example, suppose there were multiple incidents, victims, or harassers that an investigation could have revealed? Sometimes, albeit not commonly, there are special circumstances and an investigation may not include the alleged harasser. For example, if the employee is new and in a probationary period the company may automatically dismiss him/her; if a group witnessed the incident or if the incident was caught on camera it may be fairly clear, etc.
Be sure that you know why you were fired (i.e., for sexual harassment rather than refusal to participate in an investigation). When you are discharged, request the specific reason for your termination, how that was determined, and a rationale for why you were not permitted to participate in the investigation to provide your perspective. File an immediate appeal with the company (you can try to do this even before you are fired), including a letter to the top executive. If that doesn't work, file for unemployment and argue that you were unfairly discharged.Helpful 1
My co-worker filed a false harassment claim against me which was not substantiated by an investigation. Should I now file a claim against my co-worker for falsely claiming harassment?
The investigation failed to substantiate your co-worker's complaint, so the matter is considered closed. Unless you're convinced that your coworker brought the complaint in bad faith (and if that were the case, I assume you would have raised it during the investigation, right?) then move on. You need to focus on moving forward, and that includes not retaliating against the person who brought the complaint.Helpful 17
I work in a healthcare facility. My coworker has accused me of abusing a resident, but she did not document it. It is therefore just her word versus mine. How will the truth be determined?
It is not uncommon to see situations like this involving one employee making an allegation against another in which the only evidence provided is one's word that misconduct happened. In that situation, an investigator must review the case, determine the credibility of both parties, and determine who is telling the truth. Note that a workplace is NOT a court of law and therefore does not abide by a standard of "proof beyond a reasonable doubt."
Here are several factors that an investigator assesses in determining credibility:
1) Inherent plausibility: Is the account believable on its face? Does it make sense?
2) Demeanor: Does the person seem to be telling the truth or lying?
3) Motivation to lie: Does the person have a reason to lie?
4) Corroboration: Are there witness accounts such as those by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred? This includes social media posts. Is there physical evidence such as bruises on the resident that corroborates the person’s testimony?
5) Past record: Did the person complained about (PCA) have a history of similar behavior in the past?
If the resident is in a position to speak for him or herself, that could be particularly important, as well as any physical evidence on his/her body.Helpful 15
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