HR Magazine, July 2004 - Legal Trends: Private Eye 101.
By Jathan W. Janove
Vol.49, No. 7
Master the fine points conducting investigatory interviews.
First in a two-part series
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 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:
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, the human resource department 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 it does, 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.”
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 prove 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.
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 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 openended, 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 refuses 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.
The same principles and tips apply to interviews of witnesses and other potentially knowledgeable persons. However, keep in mind a few additional points.
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.
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 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 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.
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 Zucker & Abbott in Las Vegas, says: “One of the most common and often disastrous mistakes made in workplace investigations is the lack of followup. 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.”
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, which will appear in the August issue of HR Magazine, will provide tips for making and communicating findings, and developing and executing a corrective action plan.
Editor’s Note: This article should not be construed as legal advice or as pertaining to specific factual situations.
Jathan W. Janove is a principal of Janove Baar Associates LC, a Salt Lake Citybased 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—published by SHRM and Berrett-Koehler, will be out in late fall 2004.