Questions from the Upper Midwest Employment Law Institute

Fran S.

Fran S.

Post URL copied to clipboard!


Speaking at the Institute always gives me an opportunity to contemplate the challenges people face in their practice — whether advising employers, conducting investigations or attempting to manage workplace conflict.  This year, as every year, I ran short of being able to address all of the questions written by attendees, and, as promised will address them here.

1.  Do you advocate for the use of interview systems such as Verbal Judo or the Reid Technique for use in workplace investigations?  Have you used or experienced the use of these techniques in an investigation?

I am familiar with both techniques, and have had training in Reid.  I always think it is a good idea to have a range of styles and techniques in one’s “bag of tricks,” however I generally don’t advocate either strict adherence to a “system,” nor the general use of either of these techniques in workplace interviews for several reasons;

1) These techniques were intended to extract confessions in criminal investigations.  As attendees heard from me, workplace investigation techniques must contemplate an ongoing relationship with the interviewee. Even if the alleged bad actor has engaged in misconduct, there is some percentage of a possibility that they will continue to be employed.  Thus, using techniques that are “hardball” is not in the employer’s interest (I wrote an article on this last year.  Look through this blog’s archives to find it.)

2)  Misconduct in the workplace is not as bright-line as criminal behavior.  Often we are dealing with subtleties of context, relationships, history, underlying conflicts, and cognitive differences.  The techniques described above are hammers, not useful when a scalpel is the right tool.  We are trying to understand the perspective of the person we are interviewing, rather than fitting them into a narrow box. While occasionally we deal with frank liars, more often we deal with differences in perspective.  Trying to extract “confessions,” vs. coaxing admissions is not desirable.

When an employee brings up events or even admissions that do not pertain to the investigation at hand, should you include that in the report, and what should you say with regards to the fact that it does not pertain to the investigation.

While there is no hard and fast rule about whether or not to incorporate new facts or allegations or even admissions into an ongoing investigation, there are several factors to consider;

  1. When new issues arise, the investigator should use consistent criterion for deciding whether the issues should be added to the current investigation or held in abeyance for a separate or parallel inquiry.

    1. Is the new issue sufficiently related to the existing issue that findings would have an impact on conclusions about the situation as a whole?

    2. Are the parties central to resolving or exploring the new issue substantially overlapping the existing pool of witnesses?

    3. If the new issues/allegations are true, would they likely change the organization’s course of action

    4. relative to the existing organizational scope, or conversely,

    5. If the new allegations are found to be untrue, could this substantially affect the assessment of the credibility of any party to the current investigation?

    6. Is the new issue of sufficient scope that it calls for a separate dedication of resources in order to ensure that the central investigation is completed in a timely way?

    Answering these questions will help you determine whether you should take up the new issue or tell the person that while their allegations or facts are important, that they will need to be addressed in a different process.

An employee feels her boss is a bully and that she is working in a hostile work environment.  The investigation says no.  The employee thinks that biases exist, but to no findings.  How do you handle it?

Let’s be very clear that being bullied (an experience that can be highly subjective) and establishing a “hostile work environment,” which requires a factual finding of conduct that is severe or pervasive, unwelcome, offensive, discriminatory and has an effect on the terms and conditions of employment are worlds apart in terms of standards. Bullying may not “show up” in an investigation.  A boss who nitpicks performance, is openly critical (even if the criticism is justifiable,) gives less attention to an employee as compared to others, or who engages in nonverbal, if significant signs of acrimony towards an employee is bullying, yet the behavior, in this case, would be sufficiently nuanced and subtle that an investigator would have a very hard time finding actual facts to support it.  Thus, it comes down to a non-investigative approach and more of an OD approach.

I think in this case, it is important to really understand what the employee is experiencing, and to do so not in the context of a formal interview, but in a real discussion.  If she perceives bias, how is it playing out?  Don’t dismiss the employee who lists behaviors that, on their own, might seem trivial, because it is becoming more and more well established that “micro-inequities” are not only real, but have a significant impact on one’s employment experience.  Are other employees greeted when she is not?  Do others get more mentoring?  Is she being held to higher or tighter standards than others?  If she is credible, and can isolate some of these things, it might be an opportunity to informally mediate a discussion with her and her supervisor, or to do some awareness training for the whole group.

The key here is to focus on conduct, rather than policies and perceptions rather than facts.  If your investigation shows no policies are being violated and no unlawful conduct is occurring, this is an organizational challenge like any other – think of this in terms of education, sensitivity, awareness and most of all, communication.  When parties realize you are attempting to facilitate positive change and they are not being considered for discipline, they may be willing to admit to blind spots or skill deficits that can help them move along.

Of course, if your questioning turns up more specific allegations of protected class discrimination or harassment, it is time to reopen that investigation!

Can you give some tips for how to ask about very ugly allegations, for instance, an employee claiming she was sexually assaulted by another, but the counterclaim is that she was giving sex for pot?

It is absolutely essential in cases like this that we provide an interviewee an opportunity to respond directly to claims against them, whether direct or counterclaims.  As I discussed in the interviewing session, it is best to work towards these “ugly” allegations by first providing the subject the opportunity to tell their story without interruption, to then provide details in a cooperative manner, and then to respond to allegations that have not emerged in their own story.  In this particular case, I might approach the counterclaim by asking the employee who is alleging sexual assault whether there is anything she expects the accused to say in his own defense, or whether there are any circumstances she wants to share that might cast doubt on her version of facts.  I would tell her that if there is anything the accused is going to bring up to try to mar her credibility, it would be best if I heard it from her.  If she did not broach the subject of pot, I might ask her whether she had ever gotten marijuana from the accused, either purchased or by any other means, or whether she was aware of his providing marijuana to anyone in the workplace.  Then I might ask whether it was possible he believed that she wanted marijuana from him, and finally, I would ask whether there would be any reason for him to believe that she was interested in exchanging pot for sex.  Obviously the reactions to each of these questions would trigger the follow-up probes.

I find that reminding myself that giving someone the opportunity to respond to “ugly” allegations is really about justice and fairness, and although it might be awkward to confront someone with these allegations, failing to do so would be irresponsible at best, and a miscarriage of justice at worst.

As an aside, this matter would be well suited for a referral to law enforcement.

You say that we should put people at ease, letting them know they aren’t in trouble.  What if they are in trouble?

Yikes.  This is the challenge of covering a complex topic in a short time.  I believe I was discussing the handling of someone we are interviewing who is simply a fact witness.  If all I need to ask someone is whether they saw someone leave work at a particular time, or whether a coworker confided a fact in them, they are simply there to help me find facts.  There are, presumably, no allegations against them and at the time I am speaking to them I know of no reason that they are in trouble.  I find it is a kindness to let them know that if they walk in anxious and concerned that they are about to be reprimanded or disciplined.  That, of course, is not the case when it comes to those who ARE accused of misconduct.  They get to continue to worry!

Most of my investigative interviews are handled over the phone.  Would you do anything differently?

I would be sure to fax or e-mail a checklist to them so that the tone-setting and information stage can be handled effectively.  I recommend confirming whether they are someplace private, whether anyone else is present and share the same for yourself.  I would recommend spending a considerable amount of time in the opening stages of the interview so you can baseline vocal tone, and refrain from rushing through the interview as we are apt to do when we are not “in person.”  I generally use Skype for telephone interviews so I can better observe and build rapport with the interviewee, and recommend you consider doing the same.

What if you are conducting what should be a “quick” witness interview?  I get a lot of pressure to keep it short.

Even though the five-step interview process may seem time-consuming, a simple witness interview can take as little as 20-30 minutes while moving through all stages.  The notices will perhaps be the most time-consuming part of it, the uninterrupted narrative can be limited to “What do you know about why you are here?” and funnel questioning, and if the information you need is very on point, there will be little interest in much deconstruction; however, don’t “skip steps.”  The credibility of a witness is just as important as the credibility of the party, and pressure to “keep it short” when there are disputes about facts can be destructively short-sighted.  Whoever is pressuring you about time needs to understand all of what is going on in an interview– assessing credibility, building rapport, getting information, testing information and documentation, and that like anything else, doing it well takes…well, the time it takes.


Fran S.

Related Posts

Perhaps you’ve been working virtually for years, or perhaps you have just moved to WFH. The novelty of videoconferencing, chatting on multiple Slack channels,

In these days of #metoo, there is a lot of valuable sharing going on. People of all gender identities are sharing their stories of

#MeToo has been a powerful moment. Some of its aftermath has been good, such as employers paying more attention to their complaint process,

We have too much fear in our workplaces. As human beings, our emotional, cognitive and psychological attention is drawn to threats. Things that cause

A magnifying glass has, of late, been turned on unlawful harassment, and, rightfully, organizations are focused on addressing systems that have not always

Hello from the frigid temperatures of Minnesota, where I have a rare day at my desk and time to reflect on what the

More About Our Services

Do you want to know more about what we offer, check out our service offerings to get a full understanding.