In part one and part two of this three-part series, we discussed two of the most common traps employers fall into when it comes to avoiding and resolving workplace conflict: failing to anticipate and plan for high-risk situations and creating situations that may give rise to the perception of unfairness in the workplace. The final segment will explain how focusing on legal compliance may—oddly enough—turn workplace conflicts into crises and how to lay out a plan for addressing workplace conflicts quickly and effectively.  

Overemphasis on Legal Compliance and Litigation Avoidance

As a big sports fan, I often find myself yelling at my football team to play offense rather than “prevent defense”–—and that’s advice that applies equally to workplace conflict avoidance and resolution. Too often I see companies taking action (or failing to take action) because they are being defensive. For example, rather than addressing individual or department conflict early, the situation is allowed to fester because managers are too scared to address the potentially sensitive situation and are nervous about legal compliance. However, I have yet to see a situation involving workplace conflict resolve itself. Resolving workplace conflict requires honesty and strategic planning, but primarily it requires action; it needs to be addressed before it becomes a problem that is too big to solve. Additionally (and ironically), taking steps aimed merely at complying with the law is not only often counterproductive from a business perspective, it often ends up becoming a violation of law itself. Addressing problems early, honestly, and creatively is the key to keeping small issues from becoming overwhelming workplace crises.  

Here is a classic example: An employee performs poorly or engages in misconduct at work. The employee belongs to a protected category and his or her manager, after attending a training session that was geared only to create fear, becomes frozen, not knowing whether it was appropriate to address the issue or if doing so might be perceived as biased or discriminatory. 

Too often, employers will simply ignore the issue and will spend time hoping that the employee’s performance or behavior improves on its own. It rarely does. Instead, an employer may want to be honest and thoughtful. If there are legitimate concerns that the employee might perceive your criticism (of his or her performance or behavior) to be biased, then you may want to ask yourself why he or she may have that perception. If that perception is legitimate, then it’s a problem separate and apart from the employee’s performance and/or behavioral issues.

This does not mean you ignore the problematic employee. You can create a clearly worded script to use while explaining that it is your responsibility to address issues of performance deficiencies out of fairness and provide the employee with the opportunity and resources to do a better job (this applies to behavioral issues as well, assuming that the behavioral issues involved are relatively minor and can be fixed). By putting this kind of thought into speaking with the employee, by being honest in saying that your goal is to provide the employee with an opportunity to improve since it is in everyone’s interest to have employees who perform well at your company, and by being meticulous about separating performance issues from other issues (such as claims of bias or retaliation), you are taking affirmative, offensive steps to effectively address an issue and nip issues in the bud, rather than playing prevent-defense.

Another common example occurs in the context of investigations. Early in my career as a workplace investigator, I attended a training session on how to conduct legally defensible investigations. The presenter was a true-blue litigator who believed the best investigation was one that she could later defend in court. My immediate thought was that we were not philosophically aligned since my view of investigations has always been that the goal is to find the truth and fix the problem if there is one. My view is also that by doing this, a natural consequence is a reduction in litigation, but my focus is not only on litigation avoidance or solely on creating a “defensible” investigation. 

At one point during the training session, the presenter was asked how to handle communicating with the complainant at the end of the investigation. The presenter started by saying that the question was excellent and that there was one, and only one, way of doing this. According to this presenter, a formal letter, outlining the conclusions of the investigation (but not including too much detail) needed to be sent via certified mail to the complainant’s home. This way, she said, you would not only comply with your legal obligation to notify the complainant about your investigation, you would also have proof during trial that you indeed fulfilled that obligation.

To me, however, it seemed obvious that this strategy, rather than avoiding conflict, would exponentially increase the chance of conflict and would maybe even result in a lawsuit. “What if the complainant hasn’t shared details of the complaint with his or her family,” I asked myself. How would I feel, I wondered, if the only response I received was in a cold letter delivered for my signature? Of course, I agree with the notion that communicating with the complainant (and the accused) is a vital step in conducting a fair and thorough investigation, but my approach is to do so in a way that is precise and compassionate, not cold and impersonal.  HR professionals and managers sometimes struggle with what they should say when they meet with parties after concluding an investigation and, as discussed in the previous examples about communicating with employees, those conducting the investigation should write talking points, anticipate questions, and practice what to say and how to answer questions.

Practical Tips: for Conflict Avoidance and Resolution

  • Before implementing changes that you know might cause angst (and therefore claims of unfairness), you may want to plan for ways to execute and communicate these changes to minimize their impact on your employees.
  • Involve managers and, if appropriate, employees in planning and executing changes that may cause conflict. Often, managers and line supervisors have their fingers on the pulse of employees’ moods and can provide invaluable advice on how to carry out changes in ways that will diminish the stress felt by employees.
  • Pay attention to both actual and perceived fairness. As cliché as is sounds, for most of us, perception is truth and the perception of unfairness can be just as damaging as actual unfairness.
  • Create plans that are honest, thoughtful, and creative to resolve workplace conflict as issues arise. Don’t wait for problems to fester before you address them—play good offense to minimize conflict in the first place or resolve conflict more quickly when it can’t be avoided completely.
  • Check your approach on dealing with employee relations issues. Although it is necessary to comply with employment laws, this requirement is the floor and not the ceiling. More often than not, by focusing on doing the right thing, communicating effectively, and treating your employees fairly, you will not only achieve a happy and healthy work culture, but, as a natural consequence, you will also comply with employment laws.

This is the third and final part of a three-part blog series on conflict resolution in the workplace. You can find parts one and two on our Employment Law blog.

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