2008 Upper Midwest Employment Law Institute – Q and A Part I

Fran S.

Fran S.

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I love the employment law institute — it is an opportunity to reach a large group of people with information that I love to share.  Today’s session was on investigative interviewing, and, as usual, there were more questions than I can answer.  So, here come some of the ones I was unable to get to.

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Do you have recommendations regarding documentation of the interview?  What format?  How long?  How to retain?

An investigator’s notes serve many purposes, but none more than the essential and fundamental reason we take notes — so that we can accurately reconstruct what was said after a period of time has passed.  Every investigator develops their own style and approach to note-taking (and that is a subject of a full seminar in itself,) but what is abundantly clear is that whatever they look like, they should not be destroyed.  Your original notes should go into the file and reside there for the life of the file.

Since some people are not up to taking notes with the kind of detail they would like, it is perfectly acceptable to go back through your notes and to make additional notations immediately following the interview.  You must, however, make these notations in a manner that distinguishes the after-added content from the original notes.  By doing this you can honestly attest to having written things following the interview, and you can demonstrate that the additions clarify but do not substantively change your notes.

Some people who take handwritten notes subsequently type them up.  This is fine, if time-consuming.  Remember, the test is not whether the notes look pretty — it is whether they allow you, months or even years later, to reconstruct what was said.  Of course, notes should also contain the date, time and place of the interview, who was present and list any documents collected.

You should have a data retention plan that covers investigative files, and your notes should be part of that file.

How do you deal with a witness who wants to ask you, the interviewer, a lot of questions?

Hmmm.  My first instinct is to say “try to answer them,” but I read into this question the possibility that a witness is asking questions that would be inappropriate for the interviewer to answer, such as questions about sources of data, or questions about other matters that the witness is not entitled to.  As far as questions about the process, answer away.  The checklist I recommend often heads off a lot of those kinds of questions.  There are also a series of questions that you should expect to be asked – such as whether a person can have someone else present, whether they will get a copy of your report and whether they can tape-record the interview.  If you don’t know the answer to these tough questions now, quickly find out the answers prior to your next investigation!

When questions begin to veer into territory that is unproductive or merely combative, you might say to the witness, “I know you have a lot of questions, and by the way, you are asking them, probably some anxiety about what’s going on.  I will give you all of the information I can, but as these things go, sometimes we just have to recognize that as an employee, our employer expects us to cooperate, and sometimes without knowing everything we would like to know.”

Do you think it is better for HR or the manager to do an investigative interview

Assuming the manager is the “decision-maker,” and will have to select a plan of action, I generally recommend that managers only conduct simple or preliminary interviews.  It is important that the person doing the interview/investigation can credibly show neutrality, or at the very least, an arms-length view of the subject.  Managers are too easily caught up in bias or lack sufficient time or training to conduct investigations without special and very focused training.

Should the employee have legal representation at the interview?

Most employers take the position that employees are not entitled to legal representation in an internal investigation.

Our organization has a policy that all supervisors have full glass doors on their office — presumably to avoid allegations of impropriety with employees that they supervise.  Why move an employee meeting to a private area when the office is the designated place for such meetings.  Which risk is greater?  Accusation of impropriety or privacy during a conversation.

This question comes in response, I believe, to my assertion that interviews should be conducted in a private area.  I do believe that investigative interviews are distinct from “conversations.”  The organization is bound to operate on a “need to know” basis, and it does not seem that every employee walking by needs to know who is being interviewed as part of an investigation.  Secondly, claims of misconduct bring about emotions such as fear, sadness, and anger.  The expression of these feelings in an investigative interview is commonplace.  Most employees would feel exposed or embarrassed in a semi-public setting either showing these feelings or seeing someone else in an emotional state.  Thus, my fear would be that being exposed to the world might chill or suppress some honest disclosure.  Finally, if I think about, say, complaining about my coworker, the idea that the very same coworker could be standing outside watching me do so is a very unattractive idea.  In twenty years of doing investigations, my conduct during the interview has been raised fewer than five times — so I guess if I had to pick privacy v. accusations of impropriety, I’d take the former.

That’s all for tonight folks.  More tomorrow and over the weekend!


Fran S.

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