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Navigating Workplace Investigations

By January 25, 2024February 2nd, 2024No Comments

Navigating workplace investigations demands not only procedural adherence but also adept management of unexpected twists and turns during interviews. When an interviewee, whether the complainant, a witness, or the accused, throws a curveball with an unanticipated question, maintaining composure is paramount. Anticipating potential inquiries and devising brief yet effective responses can help interviewers steer discussions back on course while upholding the integrity of the fact-finding process. In this article, we’ll explore common questions that may catch interviewers off guard and provide suggested responses to equip you with the confidence and control needed to conduct thorough and fair investigations.

What happens if the interviewee, be it the complainant, a witness, or the accused, asks the interviewer a relatively straightforward or even an unrelated question you haven’t prepared for?

Best advice? Keep your cool; don’t be flustered or confused. Maintain control of the meeting, and, as the saying goes, “Be prepared!” Prepare for the worst and expect the best. Count on some push-back and perhaps some unusual off-course questions.

Having a brief reply in your back pocket will allow you to assuage any interviewee concerns while maintaining control crucial to the fact-finding process.

The following are some typical questions and suggested responses that can help you be better prepared when conducting an investigation interview.

“Who is going to find out about this? Will everything I tell you stay confidential?”

Assure the interviewee that you will treat all information conveyed to you with the utmost sensitivity. While understanding the interviewee’s concerns, you can’t promise complete confidentiality. Reassure them you will attempt to keep the number of people involved with the situation to an absolute minimum.

Additionally, remind the interviewee of the responsibility not to discuss the situation with others during the investigation. Remind them that these conversations are sensitive and that honoring the process is essential. Water cooler and breakroom small talk encourage rumors, gossip, and “telephone game” miscommunications, which may affect the investigation’s fairness and could subject the interviewee to corrective action.

“What is going to happen to me?”

A typical response to this question could be: “The purpose of this investigation is to determine and understand what may have happened. My primary focus is to conduct a fair and complete fact-finding process. Please focus on answering my questions candidly and honestly. I won’t

reach any conclusions independently, and it would be premature for either to focus on the potential outcome. ”

Your role is to get the interviewee to focus on today’s interview. When you answer this question, you usually provide enough of a response to move forward.

“Can I record this interview?”

As an interviewer, you are under no obligation to allow the interview to be recorded—and in fact, this practice should be roundly discouraged whenever possible.

Most of us, and even the most adept interviewer, can say something that later could be misconstrued or taken out of context, which is risky business when the recording is played for a jury during litigation. You should know whether an organizational policy exists that may preclude recording in the workplace. Further, many states have rules around the recording of meetings and who must consent. We advise you to check with an employment attorney to ensure you are within applicable state guidelines regarding recording in this situation.

Such a policy provides an easy out for you, allowing you to say, “Sorry, our organizational policy specifically forbids recording meetings.”

If your organization doesn’t have a policy regarding recordings, and you decide to allow the recording, insist on receiving a copy of the said recording and a transcript of the interview to enable the recording. In addition, you can record the meeting with your device as an assurance of the same interview recording.

If you suspect the interviewee is covertly recording the interview, ask the interviewee if they are using a recording device. If the answer is “no,” document their response in your notes. Should a recording later be introduced into evidence, you can certainly compromise the interviewee’s integrity by relating the lie said to you when you asked about them recording the interview.

“Why are you taking notes? Can I have a copy?”

It’s best to address this before it becomes a question, and the interview begins. Explain that you have the task of fact-finding for the investigation. Let the interviewee know that taking notes will help you recall the interview’s essential details.

As for providing a copy of your notes, it’s usually sufficient to say, “No, I do not provide copies to preserve the confidentiality of our discussion.”

“I’d like another person (perhaps my lawyer) with me during the interview?”

Explain that this fact-finding interview is the same as any other workplace matter. As such, and because of the confidential nature of the investigation, it’s inappropriate to have another person sit in on the interview, just as it would be inappropriate to have someone else sit in on a performance appraisal.

If the interviewee insists on having an attorney present, and you respond with a “No,” it could be construed as an unreasonable response if you later end up in court over the issue. If the interviewee does insist, be clear that the attorney will not have any opportunity to speak or ask questions during the interview. Be sure to document it if the attorney does interfere.

An exception: If the employee is a member of a collective bargaining unit, a union representative may have the right to be present, per any such right within the collective bargaining contract.

As the interviewer, you must remain in control of this discussion to uncover the facts. Don’t allow any interviewee to ruffle your feathers and derail the investigation. It would be best to project confidence and authority to determine all the facts and circumstances involved in any accusation of misconduct. And lastly, it may be in the organization’s best interest to use a third-party investigation team.

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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.

(Image by SC165016 from jcomp)

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