During this thirty-minute episode, Mike Coffey discusses workplace investigations with employment law attorney Dan Stern. We discuss when a complaint warrants an investigation, how to determine who should conduct an investigation, and dealing with complainants, witnesses, and the accused. It is an interesting conversation with takeaways for those conducting their first investigation and seasoned workplace Columbos.
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Dan Stern advises employers on labor and employment matters including affirmative action plans; wage and hour issues; and discrimination and harassment claims. By recommending and developing effective employment policies and procedures, he helps clients reduce the risk of employment-related lawsuits. He is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.
Dan Stern: And at some point you may have to say, “Did you see anything on January 5th during the middle of the day that you thought it was inappropriate?” And they say, “I just don’t know what you’re talking about.” Okay. “Did you hear someone say to another person, ‘I’m going to beat you up if you don’t do what I tell you to do.’ Did you hear that said?” Okay. So ultimately you do need to get down to that finite detail possibly. Because I still think it’s one of the most interesting concepts, and I always say I wish I was a psychology major in undergrad, where you tell someone again, or you ask them, tell me everything you heard or saw. And then later they say, “Well, he didn’t ask me that.” So sometimes you have to make very sure.
Mike Coffey: Good Morning, HR. I’m Mike Coffey. And this is the podcast where I talk to business leaders about bringing people together to create value for shareholders, customers, and the community.
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In my corporate HR career, and over the last two decades as an HR consultant and licensed private investigator, I’ve conducted hundreds of investigations and I love it. Give me a handsy manager or someone who’s stealing from the company, and I’ve got a good day ahead of me. But many HR professionals dread receiving a complaint that may necessitate an investigation.
My guest today is Dan Stern. Dan’s a board-certified labor and employment law attorney advising and representing employers. And he’s a member of the Dykema Law Firm in San Antonio. Thanks for joining us today, Dan.
Dan Stern: Well, thank you, Mike. It’s quite an honor. In fact, it’s very humbling that you would include me today. I continue to be so excited about trying to help HR professionals in any way I can. I’ve come to enjoy all of it quite a bit.
Mike Coffey: Well, I want to get into what makes for an effective investigation. But first, why do you think workplace investigations make HR people so nervous?
Dan Stern: Well, depending certainly on who’s named as kind of as the alleged problem. If it’s a member of management, and they know the impact that it can have on the organization, that the questions they ask, the documents they create could become exhibits at trial. And I’m sure maybe you’ve done this too, talking to the HR practitioners and others, say, well when you’re writing something down, just envision it covering a wall at the county courthouse with a jury looking at it asking why did she write that? Why didn’t he say that? Wow, I can’t believe it.
It’s any of those kinds of things, making that commitment that they become the problem. And quite frankly, they’ve got a lot of other things to do. And they know if they start digging into something, they may have to dig a whole lot deeper than they wish they had to.
Mike Coffey: So let’s say I’m sitting at my HR office one day, and knock, knock, knock, here comes somebody. And they’ve got a complaint about a manager, let’s say. At what point does a complaint justify an investigation? That’s probably where we would start, I would guess, is do I really even need to do anything about this? How do you weigh that?
Dan Stern: Well, that certainly becomes a part of the art of an investigation is just knowing when you have to start. There can certainly be a lot of issues that come to you, and you realize that one is just not that significant. You may be able to just to explain to the person who has brought the issue to your attention, here’s why this happened. That’s what we need to do in response. Thank you for coming and talk to me about it. If you think there are other issues I should look into, please let me know. And certainly, if it’s my boss told me that I come to work late, and I just don’t think that’s fair, well as they say, life’s not fair, and the fair left town. All those other little cliches, right?
But then you get that employee comes in and says, knock, knock, knock, as you said, you’ve got to touchy, feely manager. I think it’s important for you to know. It didn’t happen to me, maybe is how they bring it up, but I saw it happen. If you start getting into those issues that you know involve conduct that is potentially in violation of the law, and really at a lower standard, your policies, then yeah, that’s when you really know, boy, I got to pay attention here and decide whether I need to do more than just find out these basic details and talk to whoever is being named. And if we need to get into witness interviews. Does that need to be done. Just really looking for, again, those kinds of issues where if I don’t address this, or we don’t really confirm or deny it, we’re going to have a problem.
Mike Coffey: Yeah. And my favorite ones are where they just knock on the door and say, “I don’t want you to do anything about this, but.” They just pulled the pin on the hand grenade, threw it on your side of the HR desk, and they’re going to leave you hanging there. But so you agree that we’ve really got to get clarity around what that issue is when they’re coming in. Because often the issue isn’t the issue and we have to start digging deeper. How would you go about that conversation?
Dan Stern: Yeah. One of the things we do talk about in investigations, and hopefully most HR people are prepared for these kinds of conversations where you need to have some social empathy, right? And you need to know how to ask the questions. And I know I learned not that long ago about these trauma influenced questions. Such that an employee comes to you and says, “Well, this has been going on for a long time. I’m going to say three years. And so you need to know that this manager, he rubs up against me, it’s inappropriate.” And so to ask, “Well why didn’t you tell me a long time ago,” kind of puts that person on the defensive to say, as opposed to, “Well, God, this is serious. What caused you to come to me today?”
And certainly to get that person talking and feeling comfortable, and get as much information as you can. And talking the HR person, whether it’s really the one who’s already investigating, it can be so frustrating when they’re not giving you many details and it’s really vague. Well, I heard, it seems like, everybody knows, as opposed to on Thursday, he walked in, he came over and touched me on the back, rubbed me. Those kinds of specifics. But trying to make that person who brings you the report, really again, to feel as comfortable as possible and assuring them that though you can’t keep everything confidential, I mean, let’s be honest about it and let’s be transparent, but we’re going to make every effort to do so. So the more information you give me, the better I’ll be able to respond to your concern.
Mike Coffey: And I think that’s important. So a lot of times somebody just wants to be that confidential informant, right? And they want that promise from HR that, hey, I won’t get dragged into this. I need my job. I don’t want to get crossways with this manager. How should an HR professional respond to that?
Dan Stern: One of the things too about what’s difficult for HR people is one is certainly to remember to tell the employee, “Okay, I am here to help you if you need help. But remember we both work for the company, and ultimately that’s who we’re both responsible to. I appreciate your concern and your need to feel that this has to be absolutely confidential. I’ll be honest with you. I can’t make a guarantee in that regard. I’m not going to use your name or give specifics unless I feel that it is crucial or very necessary to the investigation.” And so then it’s kind of like you mentioned about throwing the grenade on you, and then you get that person who gets that far along, and then they pull back and say, “Well, okay, now that you put it that way, well, I don’t feel comfortable talking to you anymore.”
Mike Coffey: Yeah. Then what do you do?
Dan Stern: Which way do you go from there?
Mike Coffey: Yeah. Yeah. I mean, let’s say they gave you just enough information to know you may have an issue, but they say, “Oh, I want to withdraw my complaint.” What are options there?
Dan Stern: Yeah. Once they cross that line, it’s kind of a unfortunate for them, I guess. But once they bring it to your attention, you are pretty much obligated to. But it’s kind of like assessing, do I need to do an investigation? They may be bringing you a concern that is not at that level of seriousness where you think, if this is true, we’re in trouble. And so you can say, “Well, okay, I appreciate that. And so here’s what we’re going to do. I’m going to write down you came and talked to me, and that you asked me not to do anything about it right now. But you just wanted me to know. And I’m going to come visit you every now and then just to make sure you’re still okay. And if you ever feel like this needs to go forward, you have to come talk to me.”
Mike Coffey: Now, do you advise employers to have a policy or something in the handbook that says employees have to cooperate with a workplace investigation?
Dan Stern: I have to admit I’ve written several, and I will continue to do so. I have started to avoid saying that it’s a major offense, or one of those things where you list out what you get terminated for. Because a lot of times, if they think, okay, well, if I even kind of act like I know something, and then I stop talking, I mean, I don’t want it to look like I’m not cooperating. Then I’m in trouble. So they just default to, “I don’t know. They said I saw something? God. No, I didn’t see anything.” So certainly maybe by policy, we would try to encourage them via the stick versus the carrot. But ultimately, that’s going to be a hard rule to enforce, I believe.
Mike Coffey: So let’s say we think there’s something credible here we need to look into. It’s a violation of law or significant enough policy violation that we don’t want to set a precedent that we’re letting this person violate policy while we may terminate somebody else. And we need to do something about it. How do we decide who’s the right party to investigate is, whether it’s internal or an external? What are the factors in deciding who’s going to do this investigation?
Dan Stern: This is one of those issues you hope that the people who receive the complaints, and of course, it’s not always going to be the HR department, but if we’re going to put frontline managers for sure in that position, they know immediately to punt it to someone else who can decide. But hopefully whoever kind of is the official recipient ultimately of the concern has already thought through, okay, well, if this is this kind of issue, then that’s what I’m going to take on. That’s my job. Certainly, if there’s an issue related to human resources, we’ll take it to whoever that direct report may be and let them go to it.
But certainly if you get up to, as I say, the C-suite level, I don’t know how you don’t go outside the company to have a third party resource to come in and do it. And two, if someone is coming up, or a number of employees are coming in, it sounds like you have a systemic problem. You certainly should start looking at someone who is very well-trained in investigations and someone who does not have any kind of personal interest at all, whether it whether real or perceived.
Mike Coffey: So let’s say Joe Friday, our HR generalist, is going to get tasked to do this investigation. Every situation’s unique. But what would the first few steps look like? If I’m going to do an investigation, what do I do first after somebody’s come in and given me a verbal complaint?
Dan Stern: Yeah. Determine is this something you’re confident or you’re comfortable, or you know that you can handle it yourself and you don’t have to get approval at various levels? As we mentioned earlier, talking to the person bringing you the issue, getting as much detail there as you can. Ask for documentation, if there is some.
That’s always kind of one of those are nice little surprises, maybe at a mediation or a deposition, where the person who brought the complaint to you says, “Well, I mean, I had all these notes. I had a calendar. I had all these recordings. They just never asked me for it.” Well, if you’re like me, if I say tell me everything you know, I’m kind of hoping they give me everything, but that’s not the way it necessarily works. So getting all the information you can, of course. Identifying those witnesses that you need to speak with.
And I get asked this a lot. And usually I say, well, when do we talk to the accused? Usually, last. Somewhere close to the end. Because you want to get all the background details and confirmations and be able to ask all the right questions there. But determining again the order of interviews, if you need a particular order, sometimes it’s just who’s available Because they all have general knowledge. What documents are you going to need to review? Are they available to whoever the investigator is? Do we need to make them available? If we’re using a third-party resource, do we try to do it through counsel so we can hopefully have a privileged investigation? Making those determinations upfront.
And this is difficult, but trying to establish a timeline. Okay, we’re going to have all the witnesses interviewed by such and such a date. We’re going to have the final review of information with the accused. And then if we need more. All of those steps, and ultimately here’s where we’re going to have the final, whatever you want to call it. If it’s a report, it’s a summary. You have to make that decision at some point too. And that may be one of the things we talk about a little bit later, is are we just summarizing what we learned and giving it to someone else to make the decision? Are we making a recommendation that, and so I don’t forget to say this, please never come to a legal conclusion. Dan Stern harassed Mike Coffey on multiple occasions. Please don’t say that.
Mike Coffey: Coffey had it coming.
Dan Stern: How do we undo our determination that someone violated the law in our company. Contrary to policy, against company standards, use something like that. That’s where we want to end up.
Mike Coffey: So then that complainant comes in and gives me a verbal. I’m curious what’s your opinion. My preference was always that I have them sit down, and we talk through it, and then I have them write down the elements of their complaint. I liked that. But tell me what are your thoughts on that.
Dan Stern: Yeah. In a, I don’t want to say perfect world, but in a preferred world, yes. Having them write it out is the best way to go about it. But I would not force anyone. And I would certainly advise anyone against doing so, when it starts to look coerced. But if they do not want to put it in writing, you sit down, you take the notes. Maybe there’s a witness there, hopefully. Maybe they take the notes. Someone writes it down, shows it to the person who’s bringing the report. Please read that. Make sure it’s correct. Change anything you want. Correct anything you want. Add anything you want. But then sign it at the end just to confirm this is what you told me.
Mike Coffey: And let’s take a quick break.
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And now back to my conversation with Dan Stern.
And you mentioned having a witness in the room, especially in those situations where you’ve got an allegation of some sort of gender bias, or misbehavior related to people of different sexes, orientations, or whatever. Do you recommend that we even pay attention to the gender of the investigator as we go into those kinds of investigations? Or just at least if we’ve got a witness, that they be of the whatever gender? Or gender is so confused now with so many different options that it’s almost impossible.
Dan Stern: I believe, and I have to admit this on a recording, I do consider the gender very much. I also will consider age at times. How young is the person that we’re going to have to talk to, or who’s the one who’s come in and brought the issue toward us? Or does this person that has either come individually or someone on that person’s behalf have special needs? So are we going to allow them to bring someone with them?
I used to say absolutely positively the interviewee, the reporting party, the accused never gets to have a representative. We just don’t want to start that. I have a softened as I’ve gotten older and realized that nothing is absolute. And that’s one of those very much situations. But yes, I do consider the protected characteristics of certainly either the reporting party or the accused. Because we have to be realistic about this, and we want to get all the information that we can. And so we may need to establish that comfort level.
Mike Coffey: Now, I think right now, the NRLB’s position is that employees don’t have a right to a witness of their choice in these kinds of investigations. But that may well change. Is that what’s going on right now? Or is there, and I can’t remember the name of the decision that’s referred to as.
Dan Stern: Yeah. Yeah. I don’t remember it either right now. The so-and-so rights under the National Labor Relations Act. But yeah, it is currently at the status is that employees may not insist unless they are part of a union and I have a collective bargaining agreement saying so. Non-union employees do not have the right to insist upon someone being in on the interview.
Mike Coffey: And certainly the employee’s parents don’t have a right to be there. I first had that happen 25 plus years ago. And it was a really one-off weird thing that nobody had ever heard of. And now I talk to HR folks all the time, who as soon as the parents get whiff their kid’s getting investigated, they want to be there. And this may be a 30-year-old kid. Or they want their attorneys there. And they don’t have a right, even if it’s an internal investigation for something that’s a violation of law, they don’t still have a right to have an attorney present while HR is doing the investigation. Is that right?
Dan Stern: That is correct. I mean it’s up to the person being interviewed to know this. But they may feel, for example, they’re being questioned about criminal conduct. And they think, oh gosh, they should be looking at me, and I don’t know what to say. So obviously they could plead the Fifth. Not that that wouldn’t be necessary, just saying, “I’m just not going to answer that question.” But no, one of the things we will allow, at times though, is say, “No one’s going to come in, but at some point, if you want to take a break, and you want to call and talk to your attorney or get some advice from your mama or your daddy, I mean, we’ll let you do that.” But they’re not going to be in here while we talk about it.
Mike Coffey: So we’ve got our list of, we understand our issue, and we’ve kind of got a plan. We’ve got a list of people we should talk to. Other than people with direct knowledge, what about other sources of information? Right now, IT is often one of the first things I think of. Do we have emails and computer files? Maybe accounting, depending on the allegation. How do you bring those kinds of other people who aren’t directly involved into the investigation in a way that kind of represents or respects everyone else’s privacy?
Dan Stern: Yeah. Great question. You could do it by saying, “Okay, I need information on these five employees. And the one we’re interested in is embedded in there.” Right? So we don’t make it clear that we’re targeting a particular person. Or say, “Okay, here’s the timeframe. Look for comments like this, or emails that have this kind of information, text messages.”
However they do it, the tech guys. They’re the wizards that we count on to figure that out. But trying to look like we’re looking at a broader picture than just directly at that one particular person. That usually, what I see with our clients is they just threaten the IT person with severe injury if they break the confidentiality. Yeah.
Mike Coffey: And yeah. You would hope your IT people have an understanding of confidentiality because they’ve got the keys to the kingdom and otherwise. When we collect this information, or let’s say, it’s IT. Because another thing I think comes up, what is the responsibility of the employer early in the investigation, especially if we think this may result in either some sort of criminal liability or civil liability, or could result in a court case, to protect data and evidence that may be just on a schedule where it gets expunged or deleted over some period of time? Do we have a responsibility early on to freeze all that data? Or do we need to wait until we get farther down the road?
Dan Stern: Yeah. Again, another one of those decisions that you have to make, realizing that if you say, okay, well, I don’t know how serious this is going to get so we’re going to suspend our destruction or termination, or allowing things to be erased, schedule, our record retention record schedule, because we don’t know where this is going to go. Well, then you set that precedent. And we always worry about how do we counsel someone because it’s going to set a precedent. Same thing on making these kinds of decisions. I would not default to that really early.
Now, if someone came in and said something happened a year ago, it’s been ongoing, where we look like we have something that may go back in time, yeah, we may need to be a little more concentrated on making sure that not everything drops off the back end to make it look like we allowed that to happen. But if the concerns are much more immediate, it happened yesterday, within the last month, then let’s make sure we know where this is going to go before we start acting out of the ordinary.
Mike Coffey: So we’ve got our list of witnesses. And you said you prefer to talk to the person against whom the allegations were made later in the process. Do you at least give them a heads up that, “Hey, this is what’s going on, and we’re going to do this in a way to protect everybody’s privacy to the extent that we can. But we want you to know this is happening, and we will get to you and talk to you after we’ve gathered more information.” Or do you just kind of hope nobody goes to them in the break room and says, “Hey, you know what I heard?”
Dan Stern: Yeah. Yeah, we all know what’s going to happen. And so ultimately, and definitely if you have a member of management who can affect terms and conditions of employment, you go to them with the company line. We’re investigating a concern raised about you, and you better not do anything that looks retaliatory. And you will get your chance because we will ultimately talk to you about it. But even if it’s a coworker, it’s probably worthwhile to do that.
I mean, there may be circumstances that we really don’t want them to know that anything is going on because we have such a concern for retaliation or intimidation that we feel the need to take that person out of the workplace, cut off their access to the systems and everything else, advise them that if they contact anyone, they’re going to be terminated.
Just to make sure that we get all the information without anyone, and we can honestly say, we’re conducting this investigation and the person that’s been named is not in the workplace. And we want to know if you are contacted by this person, which is kind of unfortunate we have to name the accused. But again, if it’s that level of concern about retaliation and intimidation, we have to do that.
Mike Coffey: So we’ve got our list of witnesses. Let’s talk about how those interviews go. How much information? And I know it varies from situation to situation, but how targeted are you with the questions versus open-ended around what have you seen around the office of this kind of general nature? Versus did you see Joe do this on Thursday? How do you balance those?
Dan Stern: You usually start with the very broadly worded questions. Have you felt you’ve been intimidated, harassed, discriminated against? Have you seen anyone else these things have happened to? And then you kind of start to drill down. If they say, “Yes,” “Okay, what have you seen and what are the details, and how often did that happen? When where and why?”
And at some point, you may have to say, “Did you see anything on January 5th, during the middle of the day that you thought was inappropriate?” And they say, “I just don’t know what you’re talking about.” “Okay. Did you hear someone say to another person, ‘I’m going to beat you up if you don’t do what I tell you to do.’ Did you hear that said?” Okay. So ultimately you do need to get down to that finite detail possibly. Because I still think it’s one of the most interesting concepts, and I always just say I wish I was a psychology major in undergrad, where you tell someone again, or you ask them, “Tell me everything you heard or saw.” And then later they say, “Well, he didn’t ask me that.” So sometimes you have to make very sure.
And two, when you hear something possibly that is not consistent with what you’ve heard before from others, you may want to say, “Okay, let me make sure I heard you correctly. You walked into the room, and you saw Dan push somebody else. That’s the first thing you saw. Okay.” Some details, just make sure that they are going to stick with their story.
Mike Coffey: And then we collect that information, and this is just a 30-minute podcast so we can’t go through your full hour position, but we collect our information. Now we want to go talk to the accused party. And let’s say our information really is pretty strong that the accused party is the dirty dog he’s alleged to be. How, not fair, but how accusatory or direct should we be? Or is it just more of, “Hey these are the allegations. Tell me what’s going on. What your experience was here.” Or just, “Do you remember having a conversation with Joe on this day?”
Dan Stern: Yeah. I think you usually start with the general allegations are. “What do you have to say about that? Oh, you deny it all. Okay. Well, I’ve talked to three different people, and I’ve heard this story, that this is what happened in that sequence. So do you remember any of that? Do you remember walking into there? Do you remember saying to Sally what you’re going to do to her? Do you remember this, that?” And you get down there. Usually if whoever it is denying, and you have really good credible information, you start probably start to drill down pretty quickly.
If they are answering your general questions in a way where it sounds plausible and credible, that, “Honestly, I mean, I may have bumped into them because I’m usually kind of scatterbrained,” and this and that, then you may want to kind of still keep them talking and not being too direct where then they may close down on you, and you don’t get any information at all.
Which just to kind of answer maybe another question sometimes if you have such good information, I don’t want to say you’re going through the motions by talking to the accused, but you always do give them that opportunity. But if they’re evasive, and they say, “Well, I can’t remember,” or, “I’m not going to talk about that,” at some point say, “That’s fine. You get to make that decision. But we’re going to make our decision based on what we heard and what information we gathered.”
Mike Coffey: So let’s say we get to that point. And you mentioned it earlier, are we going to make a recommendation to management? Or are we just going to tell management here’s the information we found? Here’s what these witnesses said. This is what the accused party said. And just who gets to make those kinds of decisions? Does it just vary in the organization? Or how does that happen?
Dan Stern: Let’s say either you’ve retained a third-party source, or you are dealing with counsel as you go through the investigation. I’d get that advice from counsel. What do you think we should do here? Is it a summary, or is it a recommendation, or is it a finding? Yeah, I mean, if you’re in the academic environment, as I understand it, you pretty much have to make a finding. That’s pretty much what the standard is. But who makes that decision? If the investigator is charged with the authority to handle it in the way they think is proper. They may look at it and think, and this is reality too, just for you HR people who may be watching, you do have to think, okay, if I tell the boss, Dan’s got to be fired. Is Dan going to be fired, or do we know Dan’s not going to be fired? And if we know our recommendation is not going to be followed, we probably should back up to a summary, and have a discussion with the other people who have to be involved in the decision.
Mike Coffey: Right. And then ultimately, when let’s say we get to the position where whoever the powers that be agree that, yeah, it’s time to terminate this guy, and I don’t know why I’m picking on men. I just feel like all the bad actors are men these days. But yeah, he’s got to go, or we’re going to take whatever action it is. What do we do to circle back with the complainant? How much information do they get about what our remedial action is, or what the outcome of the investigation was generally, even if we didn’t find fault?
Dan Stern: Yeah. Be as specific, but as vague as possible.
Mike Coffey: Oh, that’s great. That’s the value of your law degree right there, right?
Dan Stern: Now this is why people don’t like lawyers. So that’s a great answer. That doesn’t tell me anything at all. Well, let’s say we terminated someone. And so we go back to the accused, and say, one response could be, “You will no longer have to work with that individual.” “Oh, you fired him.” “It’s a personnel issue. Can’t discuss it. You’re not going to have to work with that person.”
We can’t prove it one way or the other what may have happened. He said, she said, she said, he said, she said, she said, he said, he said, that whole… Well, you go back to the person, I would suggest, and say, “We’ve investigated. I promise you we investigated it thoroughly. We couldn’t corroborate it. We couldn’t find that it was not true. So please be confident that we took appropriate action.”
And whether that’s reminding the person of all the policies, also telling them if we find out this is true, what’s going to happen to that person. But going back to the reporting party, letting them know that you did respond, and that some action was taken. And then follow up with that person, in kind of a preferred world, on some periodic basis saying, “Okay, is everything still okay? Did anything else happened like you brought to my attention because I really do want to take care of it if that is the problem?”
Mike Coffey: And we’re almost at a time. So one last question. What do you think the biggest mistake employers make when they’re conducting investigations?
Dan Stern: Rushing to an assumption. This employee is a complainer, a whiner. Always has been. It seems like always will be. They come with an issue, and you’re like, here we go again. Okay. I promise I’ll investigate. And you don’t do it very effectively, if you do it at all. Or you talk to witnesses, and they tell you something, and you believe, I’ve never really thought that person was very credible so I’m not going to look into that. Or you look at the accused, and you think, oh, I know that’s true. I know that person did that. And so making those assumptions without being as objective as possible. We all have our own personal biases and influences, and all of those things, but you really have to be as objective as possible.
Mike Coffey: And that’s all the time we have today. Thank you for being with us today, Dan.
Dan Stern: Hey, call me anytime we can talk about this all day.
Mike Coffey: And thank you for listening.
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As always, don’t hesitate to reach out if I can be of service to you personally or professionally. I’ll see you next week. And until then, be well, do good, keep your chin up.