A leader downplayed an HR investigation’s findings. What now?

When senior leaders ignore the findings of an investigation, HR professionals may find themselves between a rock and a hard place.

Consider the following hypothetical scenario: A product engineering team is weeks behind on crafting a new deliverable with only a month left before the deadline. At an emergency meeting, the team’s manager orders his subordinates to work additional in-office hours to make up for lost time.

One of the employees protests that he cannot work later hours because he has to get home to his wife and kids. The manager responds abrasively, with an off-color remark about the employee’s wife.

After the meeting, the employee files an HR complaint. An HR representative conducts an investigation that substantiates the alleged conduct. The investigation finds that the manager violated one or more aspects of the business’ code of conduct. HR recommends formal disciplinary action and delivers the results to a senior leader who sits above the manager.

The senior leader dismisses HR’s report, opining that the manager’s conduct was not so egregious as to warrant discipline and that the manager is successfully helping the company meet its business goals. No further action is taken.

The high stakes of belittled investigations

Scenarios like the one presented above are among the most difficult spots in which an HR professional might find themselves, according to attorneys who spoke to HR Dive. To move forward after an investigation is belittled, downplayed or outright ignored requires an understanding of both personal and organizational risks.

One of the factors that complicates such situations is the tendency of management to seek to minimize the potential fallout and cost of formal investigations, said Shelline Bennett, partner at Liebert Cassidy Whitmore.

Higher-ups may, for example, conclude that the presence of formal antidiscrimination policies against flagrantly bad or criminal behavior is enough, she said, and that HR should not waste resources on conduct which is only borderline offensive. In other words, to borrow Bennett’s description: “If it’s not egregious, what’s the big deal?”

But that philosophy often ignores the possibility that, should an employee decide to take the employer to court over inappropriate conduct that goes unaddressed, the case could go before a jury. And juries come with their own sensibilities about what does or does not cross that line.

“Management needs to be made aware that it’s a roll of the dice when you’re in front of a jury,” Bennett said. “And if management’s willing to take on the risk of downplaying what I would describe as egregious conduct to protect one of their own, it’s just a ticking time bomb as to when that’s going to result in litigation.”

The stakes are not just limited to punitive damages, rewards for emotional distress and similar findings, she added. In some jurisdictions, the manager or leader who downplayed the conduct could be found individually liable, and may even be found to have acted outside the scope of their employment.

For these reasons and others, it’s important for HR to treat investigations uniformly, said Jason Stavely, partner at Quarles & Brady. Practitioners can make small adjustments to account for specific factual circumstances and witnesses, but the key is to avoid disparities in how different investigations are run or how different types of findings are considered.

If that’s not done properly, it could lead to questions about why the organization treats certain forms of misconduct differently than others or could lead to broader concerns about the credibility of the organization’s investigative process. “That has implications both legally and culturally,” Stavely said.

How HR can move forward

When HR finds its investigation stymied, it may be appropriate to get legal counsel involved, Stavely said. This can be particularly helpful in situations where an executive or senior leader has misbehaved, which may necessitate the involvement of external third parties to resolve.

“I highly recommend approaching them first,” Stavely said of legal counsel. “Not only will they help the HR person navigate the issue, they’ll also be able to help the HR person understand their legal obligations.”

Things get “trickier” if HR instead decides to escalate the matter to other leaders within the organization’s internal structure, Stavely continued. There may be situations where an HR professional could do so on a limited basis with those who can treat investigation confidentiality, “but that’s a whole lot of caveats,” he said.

And doing so inherently comes with the risk of retaliation, Bennett said, especially if the leader that downplays the investigation findings later discovers that HR has gone above or around them. By talking to legal counsel, HR can also help protect itself from individual liability and show that it has at least attempted to report its concerns, she added.

It starts with a solid intake process

HR should understand that satisfying its obligation to investigate alleged misconduct is the bare minimum, Stavely said. He added that an investigation is similar to any other type of workplace activity in that it requires an understanding of how to handle employees’ interests, emotions and differences as well as the workplace gray areas that accompany them.

It starts with the intake process. “You have to have effective documentation that tells a story of what happened,” Stavely said. “If we don’t have that, there are so many open questions about what transpired.”

Documentation goes beyond the investigation’s findings and extends to internal decisionmaking related to the investigation, he continued, including whether it has been broadened or narrowed and scope, and why such decisions were implemented.

Bennett said HR might want to have something like a decision tree model in place so that it can determine what must be done when an employee’s complaint is received. The person doing the intake should be able to answer whether the complaint has triggered any legal or contractual obligations that would require an investigation, she continued, and whether the subject of the complaint has had an opportunity to be heard.

The most difficult situations for practitioners to address are those which involve conduct that falls outside the organization’s legal or contractual mandates, Bennett said, which is why HR leaders should take care to refine what their teams are meant to do in such situations.

It’s possible that what an employee perceives as offensive or inappropriate does not meet the organization’s definition of the same. Bennett gave the example of a vegan employee who is invited by their manager to a team lunch at a steakhouse and takes offense to this. But a reasonable person may perceive that the manager simply did not know that the employee was vegan and did not intend to offend them.

Still, HR can’t dismiss the employee’s concern offhand, Bennett said. Instead, practitioners might take the time to sincerely listen to the employee, work through the nuances of the situation and educate the parties so as to prevent future such incidents.

“That is HR’s opportunity to do what it does best and relate to that human individual who has different sensitivities,” Bennett said. “If your employees know that HR is sincerely listening, that goes a long way.”

Lean on your network and peers

HR professionals who are either early in their careers or new to their organizations may be particularly worried about whether their investigatory findings are truly worth escalating.

In these cases, it can be helpful to speak to someone within the HR department who is either more experienced or who is more familiar with the organization’s policies for advice as well as external HR connections who can share their own experiences with similar situations, Stavely said. Such sources can provide insight on when and how to expand, or narrow, an investigation, he added.

Newer HR professionals are likely aware that they don’t carry the same gravitas as someone with more experience conducting investigations, Bennett said, which is why connecting with experienced legal counsel or more seasoned professionals within the HR department may prove helpful.

“Get what you need as that new person to help give you the credibility you need when you go to management with something this serious,” she said.