August 13, 2014

Not So Elementary, My Dear Watson: Assessing Your Risk Readiness

Sherlock Holmes was known for his ‘Holmesian’ power of deduction; he could solve any mystery using clues that remained invisible to those around him. Many nonprofit leaders might wish for Holmes’ superpower, giving them the capacity to predict potential upside and downside risks their nonprofits might face. But the world we operate in is not that of Sherlock Holmes, and we know that accurate prediction of risk events is never fully possible.

Instead of deduction and prediction, this special edition of the Risk eNews focuses on another critical – and more realistic nonprofit capacity: readiness. This Risk eNews contains our first ever Nonprofit Risk Readiness Survey, which aims to assess your nonprofit’s approach to risk management, as well as its readiness to respond to possible risk events. Please take our quick survey and consider forwarding this email to your colleagues at other nonprofits. The survey will close on Thursday, August 28th. Until then, keep reading the Risk eNews and look forward to seeing the survey results in September.

2014 Nonprofit Risk Readiness Survey: https://www.surveymonkey.com/s/2XZ79QG

Workplace Investigation Tips from Sherlock Holmes

By Erin Gloeckner

Recently, many of our clients have focused on increasing their readiness to respond to and manage employee complaints, workplace investigations, and employment practices liability (EPL) claims. This topic takes center stage at the upcoming Risk Summit in Chicago with a brand-new workshop featuring Chicago-based expert, Frank Pawlak.

An excellent example of EPL claims risk is Sherlock Holmes himself. If you’re a fan of the stories, you might remember Sherlock’s interesting treatment of Dr. John Watson, his associate. A dependable friend and colleague, Watson is often the butt of jokes and quips from Holmes. In A Scandal in Bohemia, Holmes comments on Watson’s weight gain: “I think, Watson that you have put on seven and a half pounds since I saw you.” Although that single statement would not constitute actionable harassment even today, most nonprofit executives would cringe at the thought of a supervisor saying those words. And while Sherlock Holmes may not be an inspiration for proper workplace etiquette in the 21st Century, his techniques may be useful as you reflect on how your nonprofit manages workplace investigations. Keep in mind that conducting effective and ethical investigations of workplace issues and employee complaints could reduce your nonprofit’s exposure to EPLI claims.

Skillful sleuth Sherlock Holmes typically used the following four investigation techniques.

1. Forensic Science: Holmes had knowledge of geology, botanic poisons, medicine and anatomy, and according to Watson, a ‘profound’ understanding of chemistry. These special skills made Sherlock an adept forensic scientist, able to collect and analyze clues to learn about the past. Forensic evidence loses some of its value over time. The same holds true with workplace investigations. Resolve to begin investigations within 24 hours after a complaint or report of wrongdoing is made. Immediate action will lead to fresher, more accurate investigation results, and timeliness will convey your genuine concern for the wellbeing of your employees.
2. Holmesian Deduction: Sherlock’s logic wasn’t always infallible and neither is that of any nonprofit leader. Play it safe by tracing your steps throughout any workplace investigation. Detailed records will serve as evidence of your actions. Document every step and subsequent action taken during the investigation; be sure to record your reasoning for any corrective action taken against employees, as well as an explanation of any investigation that is inconclusive. Remember Sherlock’s mantra: “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.”
3. Disguises: Holmes used multiple identities to gather evidence during his tenure as a detective. Watson fell for some of Holmes’ disguises, stating “The stage lost a fine actor…, when [Holmes] became a specialist in crime.” Although disguise is not an option during workplace investigations, you do have the option of engaging another ‘identity’ to assist with the process. In the case of employee complaints of discrimination or harassment, consider involving an outside facilitator, such as employment counsel, to conduct employee interviews. Employees may be more comfortable speaking candidly to an objective outsider.
4. Weapons: Sherlock and Watson both carried pistols, but Sherlock was also known to be skilled at boxing, martial arts, singlestick, and sword fighting. He was rarely left unprepared for a fight, and your nonprofit should aim to be the same. Invest in a diverse array of ‘weapons’ to prepare to manage employee complaints and reduce the likelihood of workplace investigations. These policies and procedures will put your nonprofit at the ready:
   • Simple Grievance Procedure: Encourage employees to speak directly with their supervisors about their concerns, rather than co-workers. The former is the first step to resolving concerns, while the latter leads to viral discontent. If your nonprofit has a restrictive, formal grievance procedure, consider its downside implications. When employees believe they must jump through hoops and be subjected to cross examination in order to voice their concerns, they head to the water cooler instead of a supervisor’s office.
   • Friendly, Frequent Feedback: An open door policy implies that when employees have concerns, they should first approach their supervisors for an informal discussion and attempt at resolution. Unfortunately, many supervisors who boast about their open door policy are in fact difficult to approach. Instead of promoting an “open door policy” to employees, train supervisors to ask their direct reports for feedback, including whether staff have any concerns about any aspect of the workplace.
   • Broad Anti-Discrimination and Anti-Harassment Policies: Adopt broad policies that detail what constitutes prohibited discrimination or harassment in the workplace, as well as the rights of employees who wish to report this type of misconduct. Reinforce these policies by offering employee training or by referring to policies periodically during team meetings. Make it clear that performance counseling, performance-related discipline and constructive criticism are necessary to the success of the workplace and do not constitute harassment. Explain to new employees that respect for one’s supervisor and peers is a workplace requirement.

To further develop your sleuth skills, attend the 2014 Risk Summit workshop, Conducting Workplace Investigations. You’ll learn proven practices for conducting effective, ethical workplace investigations while navigating legal risks.

Erin Gloeckner is project manager at the Nonprofit Risk Management Center. She welcomes your comments and questions about this article at erin@nonprofitrisk.org or (202) 785-3891.