Unanswered Questions from Upper Midwest

Fran S.

Fran S.

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What is a presenter to do? We want to give people great information that is practical, nuanced and detailed, yet find ourselves trying to give a full semester of information in an hour. The casualties? The questions. If you are reading this, you may be one of the seminar participants who submitted a question at the Upper Midwest Employment Law Institute and who did not get an answer. As promised, I am featuring those questions and my answers here for the benefit of all. Before I do that, though, thank you for being such attentive and interested learners!

Q: When conducting an interview, it is difficult to listen and take notes at the same time. Any suggestion on how to document the conversation? The employee usually clams up when they see you are taking notes.

A: In my session on “The Anatomy of an Investigative Interview,” I strongly advocated for a five-stage interview process, the second stage of which was what I refer to as an “Uninterrupted initial narrative.” This is an opportunity for the interviewee to say what they have to say, or to tell their story, and for the investigator to listen carefully. During this first stage, I recommend only the most limited notetaking so that the investigator can really listen to the interviewee and also so that when the interviewer “takes over” the process that he or she can be prepared for what is going to be said and also can take notes in a manner that is more organized. This is very helpful in managing note-taking, as you are only taking notes after they have already told you things, eliminating the need to “clam up.”

It’s also worth considering taking your notes on a PC if you are a good typist. Most of us in this day and age can type without looking, and much faster than we hand-write.

Finally, it’s important that you communicate that your purpose in taking notes is to be as ACCURATE as possible, not to somehow use it against a witness.

Q: Do you recommend that the interviewee be asked to sign or write a written statement following the interview? Why or why not?

I am not a huge fan of written statements. I think that they are of limited use, as people can change their minds about things whether or not they write them down, and in fact, writing things down may prevent someone from feeling able to bring additional recollections or changed information forwards, as though we have “locked them in” to a version of events. I also think written statements make things more officious than they need to be — the fact is that we have to act on their information whether or not it is written, and if we are only going to rely on what is written, why do we bother to interview them? The answer is obviously that people give better information answering questions than they do in a statement. Hence…our interview notes are a better source of data than a statement. Finally, I worry about varying levels of literacy and writing ability, and how those can limit or enhance someone’s chance of having their story understood. What I will say, in my usual caveat about consistency, is that if, for some reason, you feel you need written statements, get them from everyone, not just the complainant.

Q: Do you ever try to get an interviewee to lose her temper just to see if you can?

On occasion, we will anticipate a monster walking into the room — when many interviewees have described someone’s temper, yelling, screaming, emotional outbursts, etc. When the person comes in and is professional and calm, it certainly should lead to an investigator being curious about whether the previous witnesses were exaggerating or whether we are dealing with a good actor. In these cases, and within reason, and late in the interview, I may be provocative with the individual to determine if they are consistent in their behavior. This would be part of a credibility assessment. Generally, people with poor impulse control can only sustain a calm demeanor for short periods, so this can be successful. I would not recommend doing this routinely.

Q: How much detail about a situation do you give the interviewee? In a small organization, it becomes obvious who the complainer is — should we be protecting the complainant’s identity?

We should protect the identity of complainers and witnesses when it is possible…and that would be when identifying them is not necessary to allow a respondent to respond to each and every allegation against them. So, for instance, if you are told that someone has dirty magazines in his drawer, you can ask him if he has dirty magazines. If he asks who made the allegation, the proper response is “you don’t need to know.” If the allegation is that Mary Smith called John Doe a racially inappropriate name, we might ask Mary if she has used racially inappropriate language in the workplace, and then, if she denies it, ask if she has used the particular utterance. If Jane Walters says that Mike Brown made a sexual advance towards her, we are going to have to ultimately ask Mike Brown if he did so, and Jane’s identity will need to be shared. This is called need-to-know and is the standard for information sharing in investigations.

Q: A variety of questions regarding data practices

a) Minnesota specific answer here. The Attorney General’s office has advised that Tennessen Warnings do NOT apply to employment investigations. This does not mean that some employers do not continue to provide them.

b) In my session on interviewing, someone asked about providing interviewees with a copy of the interviewer’s notes, and I responded rather flippy that I don’t do that. Of course, several of you correctly pointed out that in public sector investigations that the subject of the data, once the investigation is over, is entitled to the investigator’s notes. I was not thinking about either the public sector or the context of post-investigation, and I apologize. There are limited circumstances under which individuals may request and receive the interviewer’s notes. As an outside investigator, I do not provide those notes unless I am instructed to do so by a unit of government, subject to an appropriate demand under the Minnesota Data Practices Act. Everyone else — I just say no!

More answers tomorrow!


Fran S.

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