Should you interview a non-employee witness who is free to disclose the details of your investigation to anyone they please?  What about a now-former employee witness who harbors well-known, negative feelings about your client?  The answer — it depends.  Interviewing non-employee witnesses in workplace investigation has upsides and downsides.

It feels surreal we are still coping with COVID-19.  On March 11, 2020, the World Health Organization declared COVID-19 a pandemic.  On March 19, 2020, California Governor Gavin Newsom issued shut-down orders for the state.  Even though six months have now passed, things are not back to normal. 

A 2020 survey revealed approximately 8.3% of the United States’ population, more than 27 million Americans, self-identified as individuals who speak English “less than very well.”[1] With an increasingly diverse job landscape, odds are you have interviewed, or you will interview, a party or witness who is uncomfortable or unable to communicate in English.

Amongst workplace investigators, few topics are more heavily debated than whether it is best practice to record witness interviews.  Even the Association of Workplace Investigators (AWI) acknowledges the debate.  At AWI conferences, for instance, leadership often jokingly responds to participants’ questions about the topic by saying, “Let’s take up the topic at happy hour tonight!”

“I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.” – Maya Angelou

Let this be your guiding light as you navigate how to build rapport with witnesses.

They are back!  Just in time for the holidays, the National Labor Relations Board (NLRB) gave employers a reason to celebrate the season.  Earlier this month, the NLRB voted to allow employers to issue confidentiality admonitions during the pendency of a workplace investigation, or depending on the facts of the case, even after the investigation concludes.

If you are a seasoned investigator, you are likely accustomed to interviewing adult witnesses. You may have interviewed hundreds of witnesses, and you know just how to craft relevant questions, establish rapport, assess credibility, identify deceptive behaviors, and get right down to the facts. It can be tempting to approach and interview minors relying on the same methodology you would with an adult witness.

An effective interview will draw out a plethora of information in a limited amount of time. Even the best interviewer, however, sometimes neglects to ask key questions. To make sure you have given the interviewee every reasonable opportunity to share crucial information, give them another opportunity to do so at the very end of an interview. An effective way to do this is to wind down the interview by asking the witness for names of other potential witnesses and for a list of documents that may shed light on the investigation.

Although an investigative interview is less formal than a deposition or interrogation, it is important to remember that we are still on a fact-finding mission despite the interview’s more conversational nature. Details such as identifiers, dates, times and places are not always important in our daily exchanges with others. In workplace investigations, however, such details are often critical. Practice being an active listener by looking for opportunities where you can use the following questions to help a witness clarify or provide additional details about their statements.

Interviewers often struggle with knowing how to ask the right kinds of questions. An investigative interview is not as formal as a deposition. But it is more formal than a dinner conversation. The magic lies somewhere in the middle. An effective investigator will put the interviewee at ease in order to elicit as much information as possible. The investigator must also maintain professionalism so that the interviewee responds seriously and honestly. Utilize these types of effective questions when preparing for and conducting your interview:

As investigators, there are a number of advisories that we are required to communicate before we begin our interviews. For example, we need to clarify our role as an investigator and fact finder; communicate that the investigation is a sensitive personnel matter; set expectations for future discussions, if any; review policies that prohibit retaliation; and if compliant with NLRB v. Banner Health Systems, outline confidentiality admonitions. The interviewee, who may be apprehensive or nervous, can grow more uncomfortable as we lay out our role and the purpose of the meeting.

As the saying goes, you only get one chance – and only a few seconds – to make a first impression. When it comes to conducting investigative interviews, first impressions often make the difference between effective and ineffective interviews. If you get this wrong, your interview may be doomed even before you ask a single question. Follow these tips to get it right:

Participating in an interview about workplace misconduct of your peer – or even someone higher in the food chain than you – is often scary for employees. It is common for a witness to feel uneasy about the process. They undoubtedly feel apprehensive about speaking with you. It is your job to set them at ease. How? Prepare, before you even start the interview. An interview is most productive if you are able to make your interviewee feel comfortable. The following considerations can help you to cultivate a meeting space that encourages your witness to relax and participate in the process:

Preparedness is the foundation of a fair, thorough and neutral workplace investigation. This is especially true when conducting interviews of the parties or witnesses. Forming a good interviewing process will help you move through the investigative process with ease. In this six-part series, our experienced investigators at Van Dermyden Maddux Law Corporation provide an overview of essential interviewing techniques. Consider integrating these steps into your investigative plan when preparing for and conducting interviews.