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As the Table Turns How to Maintain the Upper Hand When Conducting a Workplace Investigation

November 4, 2007
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Related Topics: Miscellaneous Legal Issues, Labor Relations, Featured Article
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One of the most critical aspects of any investigation into workplace misconduct is the demeanor of the interviewer, who must always appear composed, confident and in control as he or she sets out on a mission to uncover the facts.

    But what happens if the interviewee, be it the complainant, a witness or the accused, turns the table on you, the interviewer, by asking a relatively simple and straightforward question? Don’t allow yourself to appear nervous and unprepared, or worse yet, flustered and confused. As the saying goes, "Forewarned is forearmed." Having a brief reply in your back pocket will allow you to assuage any of the interviewee’s concerns while maintaining a level of control that is crucial to the fact-finding process.

    The following are some fairly common questions, along with suggested responses, that can help you better prepare to conduct just such an interview.

    1. "Who is going to find out about this? Will everything I tell you remain confidential?"

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

    In addition, be sure to remind the interviewee of the responsibility to not discuss the situation with others during the course of the investigation. Water cooler and lunchroom chitchat encourages rumors, gossip and "telephone game" miscommunications that ultimately can affect the impartiality of the investigation and may subject the interviewee to corrective action.

    2. "What is going to happen to me?"

    The typical response to this question usually goes along these lines: "The purpose of this investigation is to determine and to understand exactly what has occurred. My primary focus is to conduct a fair and complete fact-finding process. I need you to focus on answering my questions candidly and honestly. I can’t reach any conclusion on my own and it would be premature for either of us to focus on the outcome at this point."

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

    3. "Can I tape record this interview?"

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

    Even the most adept interviewer can say something that later can be misconstrued or taken out of context, and that is risky business when the comments are played for a jury during litigation. You should know whether a company policy exists that may preclude tape recording in the workplace. This provides an easy out for you, allowing you to say, "Sorry, but company policy specifically forbids tape recording."

    If the company does not have such a policy, and you decide to allow the taping to occur, insist that you receive a copy of the tape and a transcript of the session as a condition for proceeding with the recording.

    In addition, state laws that govern tape recording in instances such as this may apply. Check with an employment lawyer to ensure that you are within applicable state guidelines in regard to tape recording in this situation.

    If you suspect any covert recording of the session, ask the interviewee if he or she is using a recording device. If the answer is "no," be sure to document it in your notes. Should a tape later be introduced into evidence, you can certainly compromise the interviewee’s integrity by relating the lie told to you when you asked about recording the interview.

    4. "Why are you taking notes? Can I have a copy?"

    It’s best to answer this one before the interview actually begins. Explain that you have been given the task of fact-finding for the investigation, and that taking notes will assist you with recalling the more important details of the interview.

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

    5. "Can I have another person (perhaps my lawyer) with me during the interview?"

    Explain that this fact-finding interview is much the same as any other workplace matter. As such, and because of the confidential nature of the investigation, it is 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, disallowing it may be construed as an unreasonable response if you are later taken to court on the issue. Make it perfectly clear, however, that the attorney will not be given any opportunity to speak or to ask questions during the interview. Be sure to document it if the attorney does interfere.

   One exception: If the employee is a member of a collective bargaining unit, a union representative may have the right to be present, if set forth in any contract terms or conditions.

    As the interviewer, you must remain in control of this discussion in order to uncover the facts. Do not allow the interviewee to ruffle your feathers. You need to project confidence and authority to be able to clearly determine the circumstances involved in any accusation of misconduct.

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