As investigators, we know that any type of workplace investigation can be fraught with a litany of problems or special circumstances. As such, knowing how to navigate these nuances is critical to maintaining control and credibility while conducting investigations in an ever-changing environment. This is perhaps especially true when it comes to the actual interview process of the investigation. As much as you may have prepared ahead of time, there will be times when a curve ball is thrown at you.
The Who’s Who of Internal Investigations
There may be several situations where you find yourself needing to incorporate someone else into an investigation. These individuals often fall under a few distinct categories based on their relation to the interviewee or their role in the company.
Law Enforcement – When inappropriate behavior at work crosses the line into potentially criminal misconduct, it is common for law enforcement to be brought into the investigation. These cases may involve allegations of physical or sexual assault, employee theft, fraud, or stalking.
During a double investigation, third-party investigators must cooperate with the police while balancing their efforts to maintain privacy and confidentiality. As such, it is important to prepare yourself for police involvement by considering several key factors, including:
- Whether each alleged infraction falls under the scope of civil or criminal offenses.
- The severity of each infraction.
- The number of complaints against the accused.
- Whether the infractions are escalating and/or signs of a pattern of behavior.
When in doubt, it is always a good practice to seek further guidance by reporting the matter directly to the law enforcement officers as it shows that you are taking the complainant’s allegations seriously.
Human Resources – As a general rule, if HR is not conducting the investigation and the matter is referred to either an outside investigator or a different department, it is best that HR excuses themselves from the investigation in order to foster a neutral environment where interviewees feel comfortable speaking with an unbiased third-party. However, there can be instances where company policy or personal preferences necessitate the inclusion of a representative from HR.
One such type of situation you may encounter is where the witness feels comforted by having the representative with them. Sometimes a familiar face can provide the encouragement needed to open up about a difficult or traumatic event. When this occurs, it is important for the investigator to weigh the benefit of having the HR representative participate in the interview against the risk that it poses to the perceived neutrality of the investigator. Whenever any third party is present for an interview it is important to remind the participants that the third party is not allowed to speak on behalf of the interviewee.
Union Representative – Every employee who is part of a union has the right to request a union representative be present during any interview that the employee reasonably believes could lead to disciplinary actions, also called Weingarten Rights.
Union representatives generally can ask clarifying questions, provide additional information, and suggest possible witnesses. However, investigators are free to insist that the interviewee provide their own version of events and prevent representatives from overstepping their authority by consistently interrupting the proceeding or coaching an employee not to answer questions.
Loved Ones or Co-Workers– The unfortunate truth is that many witnesses may have faced a difficult or traumatic experience that is challenging to open up about. If the allegations stem from assault, sexual harassment, or stalking, they may find comfort in having a loved one or close co-worker present during the investigation process.
In these cases, the company is free to restrict third parties from participation. However, again the benefit should be weighed against the risk and if the investigator believes that the third party may be helpful to the process that person may be included. Of course, the loved one or co-worker needs to fully understand that they must ensure confidentiality, not interrupt the proceedings, and not speak on behalf of the witness.
Attorneys – Occasionally a witness will want their own attorney present during the interview. To the extent that an investigation is being conducted by a non-attorney internal investigator, the company can prohibit the participation of an attorney. However, if an attorney is handling the investigation, then they will need permission from the witness’ counsel to speak with the individual. An experienced investigator may not mind having an attorney present during the interview and can handle setting the ground rules before the meeting.
Regardless of the why and how a third party may be included in your investigation, it is crucial that you set a few ground rules and basic expectations ahead of conducting the interview. These rules are meant to ensure that you can still build a relationship of trust and maintain impartiality as you would in any other setting. As such, here are a few examples of expectations you should set with all parties ahead of time:
- The representative or supporter must ensure that confidentiality is kept, especially from spreading within the workplace.
- The representative or supporter must not speak on behalf of the interviewee.
- Any interruptions to proceedings are strongly discouraged.
- If there are disruptions then the interview will be stopped.
If you would like to learn more about the best practices that we would suggest when handling workplace investigations like this, contact Ablin Law today by telephone 312.288.2012, text 773.230.4386, or email [email protected].