[author: Bernard J. Bobber]
This entry is a continuation of our Labor & Employment Law Perspectives, October 24, 2012. Human resources professionals and other managers often need to question employees as part of an internal investigation of some potential workplace problem. The effectiveness of the interviewer can determine whether the company learns the truth about the problem being investigated, its cause, and whether the employer will be able to implement a fair and effective solution. A strategic interviewer is a much more effective interviewer. While there is much more that can be said on this topic of conducting effective investigatory interviews, this brief, two-part article focuses only on some suggestions for effective ways to start and end the investigatory interview. In Part I, we suggested items to consider when starting the investigatory interview, and now we offer some suggestions for ending it.
Ending the Interview
Obviously, the interviewer needs to find all the relevant information known by the interviewee. The strategic interviewer also should use each interviewee to search for other sources of relevant information.
Ask the witness about other sources. For example: Who else do you think might have any relevant information about [the event being investigated; the people at issue]? [for each person identified]: What do you think he/she might know? Do you know if anyone has any notes, statements, pictures, or recordings of anything that might be relevant to [the event being investigated]?
Also, a good interviewer will “put a fence” around the witness’ story, so that new and important information does not come out for the first time later, like when the person is testifying at a trial. Surprises at trial are bad. Effective interviewers can minimize the risk of those, or at least can give us, as the company’s lawyers, some useful tools to undermine the credibility of a witness who offers “new” information at trial.
Ask a broad question and a follow-up question to confirm the witness has given you all relevant information. For example: Is there anything else that we haven’t fully discussed that you think might possibly be relevant to [this situation being discussed in the interview]? Even if I haven’t asked a specific question about it, is there anything at all about [the event(s) asked about], or even [the various people asked about], that might in any way be relevant?
Confirm the witness will take responsibility to come back and tell you of anything he/she later recalls, or learns, that may be relevant to the topics discussed in the interview. For example: If you later remember or learn of anything else that may possibly be relevant here, will you please come back and tell me?
Additionally, be proactive about preventing retaliation claims by reminding the witness of the company’s anti-retaliation policy and sharing responsibility with the witness. For example: I want to remind you that company policy prohibits any kind of retaliation, or backlash, towards anyone who in good faith raises a concern, and anyone who provides information to the company as part of its investigation. If you experience or observe anyone else experience any backlash, I need you to inform me about that immediately so it can be looked into and resolved. Will you do that?
One final point bears mention. With respect to the standard practice of requiring, or at least asking, interviewees to maintain confidentiality, the law has recently become unsettled. The NLRB recently ruled that a blanket employer policy prohibiting employees from talking to each other about a company investigation may violate Section 7 of the National Labor Relations Act. See previous issue of Labor & Employment Law Perspectives, August 20, 2012 and Banner Health Systems, Case No. 28-CA-023438 (July 30. 2012).
Your non-supervisory employees possess these Section 7 rights and protections, even if they are not represented by a union. The board’s ruling is being appealed in court, but as it currently stands, the board requires a case-specific assessment of the need for a confidentiality requirement. For a confidentiality obligation imposed on employees in a particular investigation to be legal, the employer should “first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.”