How to Respond to Serious Misconduct Allegations (Hint: Not the NFL Way)
This past week we had a great opportunity to learn management lessons from the NFL. Of course, NFL has been a great source of management lessons, with issues like concussions, first amendment, diversity, tax policy, and much, much more, to just name a few. This week’s lesson is timely considering the intense societal debate on the topic of gender equality, sexual violence, and #MeToo.
If you have looked at your phone in the last few days or so, even if you are not a sports fan, you probably read about the cases of Reuben Foster and Kareem Hunt. Both NFL players, Foster was released by the San Francisco 49ers after being arrested for domestic violence (he was quickly signed by the Washington Redskins, but that’s another story for another day); Hunt was released by the Kansas City Chiefs after TMZ released a video of him hitting and kicking a woman.
While much can be written about the Hunt incident itself, there are already much commentary on it. Rather, I want to talk about it from the NFL’s perspective to show how any organization can learn to better manage personnel issues.
NFL acted fast … or too slow?
Upon the video release, NFL swiftly placed Hunt on its “do not play” list, and the Chiefs release Hunt immediately after. Hunt is a superstar player on a potentially Superbowl bound team. For the non-sports-fans it’s like firing your best worker on the spot without a replacement. The Chiefs was recognized for taking immediate and drastic actions despite hurting its self-interest and facing possible backlash from fans. NFL could also be said to be sensitive and responsive to domestic violence, which it has been accused to not take seriously in the past.
Too Slow, Definitely Too Slow
So it seems on paper. What actually happened was that the accusations are over 9 months old and the “swift” actions were triggered by the release of the video – somehow obtained by TMZ and not the NFL. A few days went by, and it was reported that the Chiefs or the NFL never formally requested the video from Cleveland police until the TMZ release. As a matter of fact, NFL never even requested the incident report.
Wow, I wonder how seriously they took this incident. From all available indications, the Chiefs questioned Hunt, he lied, and it was the end of the matter. Until TMZ.
Conflicting Considerations
Admittedly, it is difficult for employers. When any serious accusation comes to light, employers are faced with two important but competing considerations: the rights of the accuser and the accused. Accusers and victims should be handled with compassion and care; and accused should be handled without presumption of guilt. The justice system is supposed to operate under “presumption of innocence until proven guilty.” I don’t have to tell you that is a nice thought but not how people actually feel in most situations outside of courtrooms (or inside for that matter).
The Chiefs appeared to side with the accused. They took no meaningful actions that we can tell in the case of Hunt. They reportedly interviewed Hunt and did not find enough evidence to support any sanctions or penalties, simply because Hunt lied about the incident. Until TMZ finds a video which Hunt (and everyone on scene) probably knew that existed. NFL claims that they had no knowledge of the video until it was released this week. It is a lousy excuse whether or not it is true: if they did know, they didn’t do enough; if they didn’t know, what kind of investigation did they run? As it turned out, NFL might not have run any investigation. Maybe they just pretended to. Not good.
On the other hand, quick firing runs the risk of overreacting. For those of us who believe in the presumption of innocence, even the video doesn’t support final adjudication without due process. Due process exists to ensure that cases are handled fairly as to not irreversibly damage one’s career unnecessarily. Knee jerk reactions doesn’t serve justice very well neither.
How, then, can you fairly handle such difficult situations at your organization? Having handled both investigations and adjudications in large and small companies, I can tell you that there is no perfect way. However, there are some things you should do which can lower the risk of mishandling situations the details of which are yet unclear, as NFL has.
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Setup Preliminary Procedures and Follow Them
When an accusation surfaces, you should have a list of preliminary procedures you can follow. You should never make up these procedures on the fly. Rather, they should be well thought out and clearly communicated to your employees through handbooks, policies, or training. Doing so builds trust in both the accuser and the accused that you have not taken a side and will handle the complaint fairly.
The Accuser will usually want to avoid the accused by all costs. In small companies it is difficult to achieve. Small companies or teams frequently try to solve this by transferring the accuser, or the accused, or both. All those options are frequently met with resistance. “Why should I leave if [he/she] did something wrong?” “Why should I leave if I have not done anything wrong?”
Rather, I believe the best option is to offer an incentive for both the accuser and the accused to separate. Offer both the opportunity to take PTO or vacation time ahead of schedule. Offer flexible work arrangement so they can both work from home. Offer incentive to temporarily reassign them based on their career interests such as temporarily promote them or rotate them onto a different role they had shown an interest in. Whatever you do, make sure these options are stated clearly in your policies so you can just offer them in all situations.
If either or both the accuser and the accused do not wish to take any of the options, there is less chance of the employer being accused for inaction. At least you made a good faith effort.
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Show Empathy for the Accused AND the Accuser
Whatever actions you take following your preliminary procedures, you should do so with consideration and empathy for both sides. It is difficult said than done, but you should make an earnest effort to try. In many emotionally charged situations, it is very important to pay great attention to the emotional responses of everyone involved. Without emotional awareness, decisions and actions may be open to accusation of insensitivity. By being aware of all parties’ feelings, you will appear to be fair, reasonable, and caring, and may be able to reach better short- and long-term solutions to the situation.
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Conduct a Thorough, Quick, and Meaningful Investigation
After initially defusing the situation, you should conduct a thorough, quick, and meaningful investigation. Thorough means interviewing available witnesses, review relevant documents, and record everything as the investigation unfolds. Quick means investigation should be conducted without delay. Quickness shows care, priority, and importance. By conducting a quick investigation, no one is left in limbo unnecessarily, and the entire organization will take notice of how serious you are about the issue at hand. Meaningful means you are actually conducting an investigation to get to the bottom of the issue rather than just going through the motions. Sometimes a half-hearted investigation is just as bad as not conducting one, and you will be left with an egg on your face before long (hello Kansas City Chiefs).
Hope you never land in this situation with any team members or employees, but if you do, act with care.
Dafan Zhang, aka ProfessorZ, is the Managing Attorney of Zhang Law PC and Assistant Professor of Business and Entrepreneurship at Lincoln University of Pennsylvania. Dafan has a passion for entrepreneurship, law, technology, business, and policy. He is a dreamer, fighter, and advocate for diversity. Visit his blog at theProfessorZ.com, and his law firm at HighTechCounsel.com. Follow him on Twitter (@hightechcounsel) and Instagram (@dafanz.venture).
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