Interviewing Non-Employee Witnesses – Be Aware of Potential Pitfalls
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. With that in mind, this blog post discusses four strategic considerations about interviewing non-employee witnesses.
Bias And Motive
The Potential Problem – A witness’ non-employee status is a double-edged sword. This is particularly true of former employees. On the one hand, a non-employee witness usually has more incentive to be candid. They have little reason to fear that their employer or former co-workers will retaliate against them for what they say. Thus, they may be much more open to providing information about a party or former supervisor than a current employee who still reports to that supervisor. On the other hand, a former employee who left their employer on bad terms may be more inclined to use the investigation as an opportunity to “get back” at former colleagues who wronged them by providing less than accurate information, or just by viewing events through a negative lens.
The Strategic Solution – Analysis of non-employee motive and bias calls for special attention. If interviewing a former employee, consider researching the employee’s history with the organization prior to interviewing them. This will help you determine how much weight to give their statement. If a former employee has a settlement or severance agreement, you will need to know whether they have any restrictions in discussing their employment with you. For example, some agreements have non-disparagement clauses. In those instances, you will have to consider whether the employer will grant the employee immunity for any statements in the investigative interview.
Confidentiality
The Potential Problem – While you can tell a non-employee witness, “Please, keep this investigation confidential during the pendency of this investigation,” there is little you can do to stop them. This concern is particularly prominent with respect to former employees who may still have connections at the organization and could compromise the integrity of the investigation.
The Strategic Solution – Be thoughtful in how much information you provide to the non-employee witness. On the one hand, you might need to provide certain facts or descriptions of the allegations in order to contextualize your questions to elicit meaningful answers. Additionally, a witness may be hesitant to provide information without knowing what your investigation is about. On the other hand, it is important to avoid disclosing more information to a non-employee witness than necessary. This consideration is particularly important when dealing with sensitive, salacious, politically damaging, or other private information or allegations.
Interview Conditions And Consistency
The Potential Problem – A non-employee witness may not be willing, or able, to submit to the same interview conditions as employee witnesses. A non-employee witness may feel uncomfortable about being recorded or want to dictate other conditions of the interview. A former employee may not want to meet at their former employer’s offices. Also, the employer or investigator might not want the former employee seen by current employees for a plethora of reasons. Breaking from prior practices of recording (or not recording) interviews or with respect to the interview location in order to secure a witness’ participation could also invite challenges to that witness’ statements.
The Strategic Solution – Consider booking an office space or meeting room close to the interviewee’s home or workplace. Most hotels rent small conference rooms for half-days on short notice at reasonable rates. In the post-COVID era, videoconference platforms are the next best thing to an in-person interview. Depending on the circumstances, if the interviewee refuses to be recorded, ask them about the nature of their concern, invite them to record their own copy of the interview, or offer to provide a copy of your recording after their interview. In any event, make sure to note the reasons for any deviations in interview logistics in your report.
Honesty
The Potential Problem – There is less incentive for a non-employee witness to be honest with an investigator. An employee witness who misrepresents facts in an investigation can face disciplinary action or termination. Fear of job loss is a powerful motive to be honest, or at least not actively misrepresent facts. Conversely, it is unlikely a non-employee witness will face repercussions for any less-than-accurate statements. (Peace Officers and certain other public officials excepted.) Additionally, if a non-employee witness is cagey in their responses or refuses to answer a question, an investigator typically has no power to compel further responses.
The Strategic Solution – Consider seeking additional corroboration of non-employee statements. Also, think carefully about whether it makes sense to give their uncorroborated statements less weight in your analysis. When dealing with evasive responses or refusals, try not to press too hard in the beginning. Being too pushy could undermine your rapport, or worse, scare the witness out of participating. However, that does not mean you should avoid following up or asking difficult questions. Start by gathering as much information as the witness is willing to provide up front and note any areas of questioning where the witness refuses to respond or gives a suspect answer. Later in the interview, ask follow-up questions that try to elicit any concerns the witness might have about responding or responding more directly. Oftentimes, you can find a way to allay the witness’ concerns. In instances where you cannot, sometimes witnesses will disclose the information you need after voicing the reason for their reluctance. In other cases, you might at least get some other important information: “I don’t feel comfortable disclosing that because my spouse still works there and is really close with the accused.”
As an overall matter, while interviewing non-employee witnesses calls for special considerations, the fundamentals of investigations should still be your guide. Ask yourself:
Is there a reason this witness might be inclined to provide a biased or less-than-accurate statement?
How do I protect the integrity of the investigation?
How do I put the witness at ease and build rapport?
How can I corroborate witnesses’ statements?
What weight should I give to statements from people who may have less incentive to be completely forthcoming?
If these questions are at the forefront of your mind when interviewing non-employee witnesses, you are already ahead of the game.
Carl Larson is an Associate Attorney with Van Dermyden Maddux Law Corporation. His practice focuses on conducting workplace investigations.
The foregoing is for informational purposes only and is not legal advice, nor should be it construed as such.
