Administrative Option

Reporting to a supervisor and requesting a solution

A reporter (witness or target) should take into consideration the following best practices:

• Say clearly if they want the conversation to be confidential.
• Listen to the supervisor’s response to see if the conversation can be kept confidential.
• Describe what happened, including:
  • date and time of the incident,
  • name of the person or people who were involved in the behavior, and
  • anyone who witnessed the behavior.
• Explain how they believe the situation should be handled.
• Recognize the supervisor may be required to handle the situation differently.

The supervisor should take into consideration the following best practices:

• Say clearly they are required to report:
  • sexual harassment or sexual violence,
  • stalking,
  • theft,
  • workplace or domestic violence, and
  • threats to safety.
• Make sure the reporter understands mandatory reporting requirements for certain situations before the reporter shares any information.
  • Supervisors can say: “Before you say anything more, I must tell you that there is certain information that, if shared with me, I am required to report and/or investigate. That information includes, but is not limited to, sexual harassment, sexual violence, stalking, theft, workplace violence, domestic violence, and threats to safety. If I need to report or investigate a matter, I cannot guarantee that your identity or concerns will remain confidential. Do you want to continue? If you wish to discuss this matter with a confidential resource, I encourage you to contact the Employee Assistance Office or Ombuds Office.”
• Listen with empathy; take notes after the meeting
• Ask clarifying questions after the reporter has shared their information
• Ask the reporter if they feel safe in the workplace
  • If there is an immediate threat, contact UW–Madison Police Department
  • If reporter does not feel safe, ask for details to learn why, and suggest they contact local HR or Office of Workforce Relations in the Office of Human Resources (OHR)
• Ask if the reporter has reported the situation to other people or offices. Ask if anyone has tried to solve the problem.
• If the reporter hasn’t already said what solution they want, ask. For example, speaking with the person allegedly involved in HIB; engaging in fact-finding; notifying the dean/school/college/department chair; etc.
• Tell the reporter their wishes will be one consideration in deciding next steps.
• Discuss other reporting options (depending on type of complaint). For example:
  • workplace complaint
  • EEO discrimination complaint
  • sexual harassment/sexual violence complaint with Title IX office
• Discuss support resources:
  • EAO
  • Ombuds
  • shared governance secretaries
  • OHR and its Office of Workforce Relations
  • Vice Provost for Faculty and Staff
  • more resources on the HIB campus resources webpage
• Encourage the reporter to take notes about the HIB (including dates, potential witnesses, etc.), whether or not they want to move forward with the matter at this time.
• End the meeting by deciding next steps. Possible next steps:
  • reporter will get back to supervisor
  • supervisor will find out more information and get back to reporter
• Document the conversation:
  • information the employee shared
  • guidance the supervisor provided to the employee

*Usually, if personal notes are not shared with others, they are not subject to an open records request.

• Follow up with the employee a few days later by email, phone, or in-person:
  • ask if they have other questions about the conversation
  • offer to continue the conversation

The supervisor may consult with resources, including HR professionals. If supervisors inform HR representatives, HR representatives should make sure they understand the reporter’s wishes about confidentiality. They should tell the reporter if a situation is so severe they feel they must report it.

If the supervisor wants to talk with the person accused of HIB about information shared by the reporter, the supervisor should first consult their division HR or the Office of Workforce Relations.  (Discussing the incident may break confidentiality, depending on the nature of the report.)

The supervisor may determine that, even if allegations are true, a reported incident is not HIB.  If that happens, the next steps depend on the situation.

• If the allegations do not constitute any wrongdoing, the supervisor should tell the reporter that the alleged conduct does not violate policy (for example, being placed on a plan of improvement for substandard performance; receiving a negative review based on sub-par work performance).
• If the alleged conduct is hostile or intimidating but is not severe or pervasive under a reading of the policy (for example, a single incident when a co-worker becomes frustrated and abruptly ends a conversation), the supervisor may address the issue with the people involved, outside of the HIB context.

If the supervisor believes the allegations may be HIB, they may request, through their divisional HR, that an HR professional or the Office of Workforce Relations conduct fact-finding.

If the supervisor is the person engaged in HIB, the reporter may talk with:

• an HR representative
• the supervisor’s direct supervisor
• an associate dean or division head

Reporting to a school, college, or division HR professional

The reporter can follow the steps for reporting to a supervisor.

HR professionals should follow the steps listed above.  HR professionals should also:

• talk with the reporter about confidentiality before the reporter says critical information (what happened, when, witnesses, how it made the reporter feel)
• say clearly that HR professionals are required to report or investigate specific behaviors
  • HR professionals can say: “Before you tell me about the situation, I must tell you that there is certain information I am required to report and/or investigate. That information includes, but is not limited to, sexual harassment, sexual violence, stalking, theft, workplace violence, domestic violence, and threats to safety. If I need to report or investigate a matter, I cannot guarantee that your identity or concerns will be confidential. If you want to talk about the situation with a confidential resource, I encourage you to contact the Employee Assistance Office or Ombuds Office.”
• ask the reporter if they want the situation to be reported
• tell the reporter as soon as possible if the situation must be reported
  • situations that require fact-finding or reporting include: sexual harassment, sexual violence, stalking, theft, workplace or domestic violence, and threats to safety.

HR professionals may consult with campus resources. They should be sure to understand the reporter’s wishes about confidentiality.

Conducting a fact-finding inquiry, when the person who receives the report is not sure if the behavior is HIB

Reporters of HIB can ask for a fact-finding inquiry, in consultation with a supervisor, department chair, HR professional, or colleagues.

Fact-finding is typically requested by a chair, unit head, or dean’s office. They may have HR professionals in the school/college/division conduct the inquiry, or they may ask trained investigators in the Office of Workforce Relations to conduct fact-finding or provide the school/college/division guidance on how to conduct it.

If HR professionals in the school/college conduct a fact-finding inquiry, they should consult with the Office of Workforce Relations to receive written protocols for fact-finding inquiries and investigations.

HIB policy states that fact-finding inquiries can be done outside the formal process when there are questions about whether the behavior actually qualifies as HIB.

Reports from these fact-finding inquiries usually do not recommend action. They determine if behavior is or is not HIB according to UW–Madison policy.

Rights and Responsibilities in Fact-Finding Inquiries

The person who is the focus of the investigation must:

• receive written notification of the fact-finding inquiry (ideally before it begins).
• receive a summary of the complaint that is being investigated, before the inquiry begins or within a reasonable period of time after it begins. (For example, “This correspondence serves as notice that I will be conducting a workplace investigation involving a complaint that you have engaged in hostile and intimidating behavior.”)
  • As much as possible, to protect confidentiality, summaries should not include: names of reporters or specific situations with exact dates and times.
  • The fact finder can consider the situation as a whole to decide a reasonable period of time to notify the person.
• have an opportunity to respond in writing to the allegations.
• be interviewed as part of any fact-finding inquiry.
• receive periodic status updates about the inquiry (progress, expected timeline, etc.)
• be told the result when the fact-finding process is complete.
  • The person can receive a summary of the result.
  • The person does not receive the formal written report of the fact-finding inquiry.
  • If the person wants a copy of the report, they can submit a request to their human resources office, which will review the summary report and may redact identifying information as required by law. Additional guidance about requests for records related to HIB proceedings can be found in Appendix A.

The people conducting fact-finding will:

• ensure the timely completion of the inquiry.
• offer the subject of the inquiry the opportunity to respond to the allegations as part of its fact-finding process.
• interview the person accused of HIB.
• interview the reporter of the behavior.
• ask both the reporter and the accused person if there are any witnesses to the behavior and/or witnesses who can provide information for purposes of the investigation. The investigator will determine any necessary follow-up with witnesses for purposes of the investigation.
• notify the person who requested the fact-finding inquiry of its results.
  • If the unit head did not request the fact-finding inquiry, the person who receives the report should report the results to the unit head.

Written fact-finding reports:

• are not usually put in the personnel file of the person who is the focus of the inquiry, unless the inquiry results in administrative action or referral to formal grievance or complaint under FP&P or ASPP.
• The results of fact-finding should should be kept, as a record, in the investigation file. This record is subject to applicable record retention requirements and the current schedule identifies an investigation file. The investigation file is typically maintained by the investigator and/or divisional HR. (See UWHR0301 of the 2016 UW System and Madison Record Retention Schedule for HR Records.) Note, to the extent any discrimination complaints were raised in addition to HIB, those complaints are subject to different retention requirements. See the schedule for more info.

Upon receiving a report of HIB or the results of a fact-finding inquiry:

• the recipient should consult with Workforce Relations if they know about other related incidents that may show a pattern of behavior, especially if those other incidents did not lead to formal investigation or discipline. An accumulation of concerns may merit administrative or formal disciplinary investigation.
• the supervisor (with the person who conducted fact-finding) should determine whether administrative actions may be used to address the HIB.

The following is a non-exhaustive, non-prioritized list of actions at the local level.  Actions can be taken singly or in combination. These actions may not rise to the level of disciplinary action described in the formal option, which implies due process rights under state and federal law or university policies:

• Verbal Counseling
  • For all employment categories
  • Conversation between supervisor and employee, often about behaviors necessary for a well-functioning work environment
  • Written summaries of discussion may follow
  • Useful for employees who are most likely to respond positively “the first time” an issue is raised
  • Consult with Office of Workforce Relations or school/college HR for tips on productive discussion and documentation
• Letter of Expectations (LOE)
  • For all employment categories
  • Written notice from management or school/college HR about expectations and standards for performance or conduct
  • Often given at or after a meeting with an employee, as a first step to address employment issues
  • Describes evaluation methods in comparison to standards
  • May include time frame for future feedback and constructive evaluation
  • Consult with Office of Workforce Relations or school/college HR for a template and guidance on meeting, delivery, and follow-up actions
• Mentor/Oversight Committee
  • Generally for faculty and Academic Staff
  • Peer group assigned to meet regularly with employee
  • Proactive to address performance, or in response to investigation of misconduct
  • Dean, director, or manager provides guidelines to the committee for specific tasks/traits/skills to focus on
  • Consult with Provost’s Office, Office of Workforce Relations, school/college HR, or faculty affairs officials for guidance
• Performance Improvement Plan (PIP) or Concentrated Performance Evaluation (CPE)
  • Generally for Academic Staff and University Staff
  • Measures an employee’s success at improving conduct or performance and following expectations
  • Provides standards and expectations, timeline for measuring response, and goals to successfully complete the PIP/CPE
  • Consult with Office of Workforce Relations for documentation templates and other guidance for set-up
• Paid administrative leave
  • For all employees categories
  • In certain circumstances (investigation is pending and there are concerns about an employee’s presence in workplace)
  • May be used in cases that include, but are not limited to: threat of physical harm or assault, theft, sexual harassment, sabotage or damage to property, and data misuse
  • Before putting any employee on administrative leave, consult with Office of Workforce Relations
• Fitness for duty (FFD) exam
  • For all employment categories
  • Limited cases in which FFD exam may be required
  • Evaluates employee’s ability to perform job duties in the context of identified physical or mental health limitations
  • Generally, temporary limitations (recovering from surgery, etc.) do not make FFD exam necessary
  • Before making any decisions about FFD exam, consult with Office of Workforce Relations, your local Divisional Disability Representative (DDR), and the campus Disability Coordinator for Employment
  • Employee is often on paid administrative leave during the FFD process
• Dean- or Chair-level oversight
  • Mostly for faculty
  • A dean or chair may impose direct oversight or approval mechanisms to improve performance if they see deficient performance in a certain area
  • Constructive feedback to lessen risk of deficient performance in future
  • May be related to grant applications and post-award administration, financial management, and advising of students
  • Oversight might be delegated to a senior member of the department (for example, a vice chair or faculty affairs dean)
  • Specific goals should be identified to set an endpoint for oversight
  • Consult with Office of Workforce Relations and Provost’s Office for document templates and models to conduct oversight for a set period of time
• Reassignment of office space or duties
  • For all employment categories
  • Reassignment of office or lab space to address interpersonal behavior issues and deescalate a workplace conflict
  • In some cases, reassignment of non-essential duties can limit risk of workplace conflict
  • Relocation or reassignment must not limit an employee’s ability to engage in scholarship or negatively affect academic freedom (especially for faculty)
  • First, consult with Office of Workforce Relations and Provost’s Office to identify goals and criteria for restoring full duties or access to prior work space
• Removal of certain titles
  • For faculty and Academic Staff
  • Deans may remove an employee from Center Director and other titles depending on:
    • specifics in the employee’s appointment letter
    • whether the removal of titles and duties would impact salary
  • Identify goals and criteria to restore title and duties, if applicable
  • First, consult with Office of Workforce Relations and Provost’s Office
• Removal of job security
  • For Academic Staff
  • Deficient performance or misconduct may result in removal of job security (the “rolling horizon”)
  • Removal of the rolling horizon is not discipline under ASPP ch. 6, but employees may challenge the decision under ASPP
  • Consult with local HR and Office of Workforce Relations about criteria for removal and documentation

An employee may file a grievance in response to administrative actions. Employees may consult the grievance policy for their employee group for information about how to file a grievance.

A supervisor, department chair, or member of the dean’s office may decide to move to the disciplinary process if:

• HIB continues after administrative actions have been taken.
• they review results of the fact-finding report and decide, with local HR or Workforce Relations, that the HIB instance should move to the formal process (FPP II-332, Part II, section B; Academic Staff document #546, Part II, section 2; University Staff HIB policy Part II, section b).

Note: An investigator may use the results of the fact-finding inquiry when conducting a formal investigation and disciplinary process. The results of an initial fact-finding inquiry cannot be used as evidence in the formal process if the fact-finding procedure did not follow relevant disciplinary policy.