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Mastering The Fine Points of Conducting Investigatory Interviews
This is the first in a two-part series of articles by Jathan W. Janove. Learn how to conduct effective interviews with the complainant and witnesses as part of a misconduct investigation.
The call comes in to the human resource department on a dark and rainy Monday morning. A frantic payroll clerk is pleading for help. She says the vice president of accounting has been sexually harassing her.
Like her favorite TV detective, the HR director throws on a rumpled raincoat, chomps down a little harder on her unlit cigar and leaves the office to start an investigation.
If you’re called upon to be “Lieutenant Columbo” in a workplace investigation, you need to know how to do it properly, avoid legal pitfalls and ensure that in the end the workplace is better for your investigation,
not worse.
Having conducted numerous workplace investigations, having trained HR professionals in investigatory techniques and having litigated cases resulting from botched investigations, I offer in this article -- with
comments from some colleagues -- the basics of gathering information during an investigation. Next month, in the second part of this article, I will address what’s done with the information.
Begin with the Complainant
The critical first step in almost all internal investigations is to interview the complainant -- in this instance, the payroll clerk.
To start on solid ground and avoid common pitfalls, consider the following elements:
Preliminaries. Identify yourself to the clerk, explain that you are investigating her complaint and ask if she is comfortable with you in this role.
This can help prevent unpleasant outcomes such as the one in which a complainant, dissatisfied with the results of an HR representative’s investigation, attacked the integrity of the process by alleging that the investigator had had an affair with the accused!
If possible, select a fellow HR staffer or other management representative to serve as a witness and take notes. This can reduce the chance of allegations of impropriety arising from the interview process.
Give the complainant a copy of the company’s anti-harassment policy, even if she already has one.
This reinforces your company’s values and demonstrates its commitment to a harassment-free environment -- whatever the outcome of the investigation.
Advise the complainant that, regardless of the outcome of the investigation, the company will not tolerate any form of retaliation against her, and instruct her to alert you or others in management if she has
concerns about retaliation.
Explain that information pertaining to the investigation will be treated as highly confidential and will be conveyed to others only to the extent necessary to conduct a proper investigation and achieve a
resolution. Ask for the complainant’s cooperation in keeping information confidential. However, don’t guarantee confidentiality or promise that her identity will remain a secret. With few
exceptions, such as situations presenting an unusually high risk of retaliation, you typically will need to disclose the complainant’s identity to the accused.
If the complainant is reluctant to go forward, explain that once informed, HR is obligated to investigate and correct any problems. Explain that you will encourage all those interviewed to maintain
confidentiality, but that federal labor law limits the employer’s right to curtail workplace conversation about terms and conditions of employment.
In some instances, you can overcome a complainant’s reluctance to proceed by explaining that going forward could help other employees who may be experiencing the same problem.
Determine whether the complaint involves allegations that are particularly serious or otherwise have great potential for retaliation, violence or other problems. If so, you probably should put the accused on
leave pending the investigation. You may need to take other precautionary steps such as alerting security.
Also, consider any claims of injury made by the complainant. According to Paul E. Prather, a founding member of Kiesewetter Wise Kaplan Schwimmer & Prather PLC in Memphis, Tenn.: “An employer can often limit its potential liability and get the complainant back to productive work sooner by referring the employee to an employee assistance program or mental health provider to promptly address any claims of mental distress.”
The Interview. In conducting the interview, use the “funnel” method -- “pouring” all of the complainant’s information into the top of the funnel by asking open-ended questions such as “who, what, when, where
and why,” and by probing for details, examples and background information, including witnesses who may or may not support her claims. Condense this information at the bottom, or narrow end, of the funnel by
asking the complainant if you understand her correctly and reciting back to her what you believe to be the key points she is making.
This method gives you a clear picture of the complaint without erroneous assumptions about the complainant’s perceptions.
It also helps to establish a comfort level between you and the complainant and demonstrates that you truly want to understand her concerns. The credibility you build up here will become important later, especially if your findings do not square with the complaint.
Prompt the complainant to be specific. Precise details are easier to pin down than general descriptions of events.
Ask the complainant to identify persons she thinks may know about her complaint or may have relevant documents, including e-mail. Following up on such information quickly -- before it can be discarded or
deleted -- may provide critical when you begin to assess the credibility of various individuals later in the investigation.
Ask the complainant what she believes would be an appropriate solution. Even if her response strikes you as unreasonable -- “Fire him and make me vice president of accounting” -- don’t offer an opinion. At this point, you wear only one hat -- that of information gatherer. Nevertheless, it may be appropriate to ask why the complainant has proposed such a solution and whether there are other solutions that she might find satisfactory.
Documentation.
There are many ways to document the interview. Taking into account your own preferences, the importance and complexity of the investigation, time or other constraints, and applicable company policies, consider the following methods:
--Take notes while the complainant is speaking.
--Ask the complainant to prepare, sign and date a statement setting forth the details of the complaint.
--Prepare a statement based on the interview for the complainant to sign and date.
Whether to tape-record the interview--with prior consent, of course--is another issue.
Some attorneys recommend taping because it can definitively capture an employee’s statement before time, circumstances or an attorney’s coaching changes things. However, other attorneys advise against it because a tape is subject to damage, deletions or manipulation.
The greater your effort to capture, verify and preserve the complainant’s story, the greater will be your ability to rely on it and not be faced with a “moving target” of changing recollections.
In preparing written statements, have the employee sign each page and include a statement that the document is a complete summary of the interview.
If the interview is recorded, elicit the complainant’s statement on the recording that the entire interview was recorded.
According to Maria Sorolis, a shareholder in the employment law firm of Allen, Norton & Blue PA in Tampa, Fla., these additional measures will avoid the problem of employees alleging that you
substituted false pages in their statements, omitted or changed important facts, or turned off the tape during a key part of the interview.
Interview the Accused
The same tips and suggestions for interviewing the complainant and documenting her story apply -- with some variations -- to interviewing the accused.
Advise the accused that a co-worker has complained about his behavior, that no judgment has been made and that you are here to gather information.
Warn the accused against retaliating in any way, regardless of the truth of the complaint.
Generally speaking, don’t ask the accused for a proposed solution.
That may give the individual a false sense of control over the proceeding or may contribute to the growing phenomenon of employees accused of harassment claiming that they are in fact the victims and threatening legal action.
Although the funnel method is useful here as well, avoid giving the accused so much information at the outset that he can tailor his responses according to his understanding of the specific allegations.
Before seeking confirmation or denial of the complainant’s specific allegations and seeking a response, get the accused employee’s version of events and circumstances, using a combination of questions -- some that are open-ended, others that are not. For example, ask broad questions concerning his relationship, dealings, issues or conflicts with the complainant, including whether sexual conduct of any kind occurred between them.
If the accused denies the charges, ask him why he believes the complainant would make a false complaint, and what other persons or documents might support his denial.
Even if you feel fairly confident that the accused has violated company policy and will be disciplined, avoid expressing this belief or otherwise intimating your feelings such as through aggressive,
leading questions (e.g., “Isn’t it true, Mr. X....”).
If the accused asserts a right to bring his lawyer, another employee, spouse or friend to the interview, call a time-out and consult with employment counsel. Generally speaking, employees do not have
the right to bring their attorney, spouse or friends to such interviews.
Rank-and-file employees may exercise their so-called “Weingarten right” to have a representative present during an investigatory interview that may lead to discipline, but supervisors and above have no such right.
Depending on jurisdiction and other circumstances, you and employment counsel should decide whether the accused will be allowed to have someone else present, and, if so, who and under what conditions.
What happens if you decline to allow a witness or a representative and the accused refused to be interviewed? You might consider disciplining the accused for failing to cooperate.
Generally speaking, however, it’s better to advise the individual that you will complete the investigation with or without his cooperation and, if necessary, without information that might have helped him.
Interview Witnesses
The same principles and tips apply to interviews of witnesses and other potentially knowledgeable persons. However, keep in mind a few additional points.
Follow through.
As you form a mental picture of what happened -- and as you feel the investigation diverting you too much from other responsibilities -- you will be tempted to end the process without speaking with everyone on your list. Unless such persons clearly are marginal, redundant or no longer relevant to disputed issues, resist this tendency -- for two reasons.
First, pressure to finish the investigation can make you more confident in your conclusions than the facts warrant or too quick to judge that the results are inconclusive.
Completing all the interviews will guard against error.
Second, if the complainant, the accused or both disagree with your conclusions, a thorough interview process will help withstand a challenge to the integrity of the process.
Prepare carefully. Before interviewing other witnesses, select questions carefully so that they help you assess which version of the facts -- the complainant’s or the accused’s -- is more likely to
be true.
Discipline with discretion.
If employees refuse to be interviewed despite your best efforts, consult with employment counsel before considering disciplinary measures. For example, you may need to draw a distinction on the basis of whether the person who refuses to be interviewed is a supervisor.
Follow up.
Be prepared to go back to both the complainant and the accused with follow-up questions based on what you learn from the other interviews. Like Lieutenant Columbo, you may find yourself saying, “Uh, just one more thing....” Edwin A. Keller Jr., a partner at the management labor and employment law firm of Kamer Zuker & Abbott in Las Vegas, says: “One of the most common and often disastrous mistakes made in workplace investigations is the lack of follow-up. The failure to re-interview the complainant, the accused and other witnesses to address new information and evidence can lead to allegations of negligence leveled by a disgruntled complainant and an irate accused employee -- often in separate legal proceedings.”
Phase II
Having gathered information, it’s time for Lieutenant Columbo to go back to her office, toss her raincoat on a chair and start wrapping up the investigation.
The second part of this article, in the August issue of HR Magazine, will provide tips for making and communicating findings, and developing and executing a corrective action plan.
Jathan W. Janove is a principal of Janove Barr Associates L.C., a Salt Lake City-based employment law firm, and is a member of the Worklaw Network, the Management Labor and Employment Roundtable and the
National Arbitration Forum. He defends employers in litigation and helps prevent workplace claims through training, consulting and development of HR policies. His book -- Managing to Stay Out of
Court: How to Avoid the 8 Deadly Sins of Mismanagement -- published by SHRM and Berrett-Koehler, will be out in late fall 2004.
Editor’s Note: This article should not be construed as legal advice or as pertaining to specific factual situations.
Plan the Investigation
After interviewing the complainant, make a list of steps you will take in the investigative process. Include all of the following items:
--Identify the persons who need to be interviewed: the accused, witnesses, persons identified by the complainant and others, such as supervisors or co-workers, who may have relevant information.
--Obtain and secure evidence, including documents identified by the complainant, the complainant’s and the accused’s personnel files, and any written correspondence between them, including e-mail exchanges. (Assuming your company has disseminated an appropriate computer use policy, you should be able to search computer information without the employees’ advance notice or consent, but first check with employment counsel.
--Review applicable company policies, such as those on harassment and equal employment opportunity, as well as computer usage rules, complaint reporting procedures, standards of conduct, disciplinary procedures and applicable labor agreement provisions.
--Visit any accessible scenes of the alleged incident. It may be necessary to photograph or videotape these locations if there is a chance they could be changed.
--Identify any legal questions or issues, and consult with employment counsel.
--Alert the managers in both the complainant’s and the accused’s chains of command as to the investigation and the need for their help in maintaining confidentiality and guarding against retaliation.
--Allot sufficient time to conduct the investigation promptly, thoroughly and efficiently.
Visit the online version of this article at www.shrm.org/hrmagazine/04July for more information on when an employee is entitled to have a representative present during an investigatory interview that may
lead to discipline, including
For a discussion of what happens when an employers stops short during the interview process, and to read the majority and dissenting opinions in the 2001 decision of the 9th U.S. Circuit Court of Appeals
in Swenson v. Potter, see the online version of this article at www.shrm.org/hrmagazine/04July
The greater your effort to capture, verify and preserve the complainant’s story, the greater your ability to rely on it.
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