This entry is a continuation of our Labor & Employment Law Perspectives, October 24, 2012. Human resources professionals and other managers often need to question employees as part of an internal investigation of some potential workplace problem. The effectiveness of the interviewer can determine whether the company learns the truth about the problem being investigated, its cause, and whether the employer will be able to implement a fair and effective solution. A strategic interviewer is a much more effective interviewer. While there is much more that can be said on this topic of conducting effective investigatory interviews, this brief, two-part article focuses only on some suggestions for effective ways to start and end the investigatory interview. In Part I, we suggested items to consider when starting the investigatory interview, and now we offer some suggestions for ending it.
Ending the Interview
Obviously, the interviewer needs to find all the relevant information known by the interviewee. The strategic interviewer also should use each interviewee to search for other sources of relevant information.
Also, a good interviewer will “put a fence” around the witness’ story, so that new and important information does not come out for the first time later, like when the person is testifying at a trial. Surprises at trial are bad. Effective interviewers can minimize the risk of those, or at least can give us, as the company’s lawyers, some useful tools to undermine the credibility of a witness who offers “new” information at trial.
One final point bears mention. With respect to the standard practice of requiring, or at least asking, interviewees to maintain confidentiality, the law has recently become unsettled. The NLRB recently ruled that a blanket employer policy prohibiting employees from talking to each other about a company investigation may violate Section 7 of the National Labor Relations Act. See previous issue of Labor & Employment Law Perspectives, August 20, 2012 and Banner Health Systems, Case No. 28-CA-023438 (July 30. 2012).
Your non-supervisory employees possess these Section 7 rights and protections, even if they are not represented by a union. The board’s ruling is being appealed in court, but as it currently stands, the board requires a case-specific assessment of the need for a confidentiality requirement. For a confidentiality obligation imposed on employees in a particular investigation to be legal, the employer should “first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.”