For many working in human resources, at some point they will be tasked with conducting witness interviews. If there’s litigation, they may assist in witness preparation and/or being present at depositions, trials, and administrative proceedings.
Conducting a clean interview or assisting in witness preparation can be a difficult task – there is no one-size-fits-all process. There is an enormous amount of complexity when you are asking people to describe a situation or explain their behavior. It can be tedious, and it is sometimes beneficial to help employees refresh their recollection either through providing examples, showing them documents, or as active listeners repeating back to them, “This is what I heard you say….”
However, as a recent American Bar Association Ethics Opinion indicates, even if you are not bound by the same rules of ethics that an attorney might be, you need to be careful to make sure that you are clear and what you are looking for is the truth, no matter if it’s good or bad.
In August, the ABA issued Formal Opinion 508, reminding attorneys of various issues that might crop up in witness preparation or deposition testimony, particularly in the age of video proceedings and texting. Deposition or trial witness preparation is generally something that your attorney will conduct, but as part of an investigative process, many HR professionals will either have conducted the original interviews with the witnesses or may be asked questions by the employee after attorney prep before any testimony is provided.
Internal Investigation – Interview Tips
First and foremost is the importance of making it clear to employees that you are expecting them to tell the truth, or as the ABA puts it, “Emphasize the importance of telling the truth.”
While it is appropriate to paraphrase what an employee has told you, you may need to repeat facts back to make sure that you have an accurate understanding of their statements, or when something is simply unclear, ask for more explanation. At no point is it appropriate to tell an employee what to say, encourage them to leave out certain facts, or flat-out lie.
HR should also be careful that they do not accidentally disincentivize telling the truth. This includes setting the stage appropriately for any employee interviews. HR should provide information to the employee, including the following explanations and expectations:
- Why you are meeting with them.
- That you are hoping they will give their understanding and recollection of events truthfully and straightforwardly.
- That you will enforce the anti-retaliation policies and no employee will be treated differently based on truthful/good-faith participation in the process.
- Evidence that you back up and enforce your anti-retaliation policies so they know that there is a history of treating employees fairly.
In the interview itself, HR should ask the employee:
- For their recollection of events, and then listen to the answer. If the answer is open-ended, ask additional questions so you understand any issues and concerns.
- If they have any documents, including text messages, social media posts, or other things that impact the discussion. If so, ask to see them, and/or if they are willing, ask for a copy. Remind them not to destroy any data.
- If there are any other witnesses or persons they believe that you should speak with regarding outstanding issues.
While you might request that the employee not discuss the pending investigation, in some circumstances this could potentially be considered a violation of Section 7 of the NLRA. You should fully assess that question with your legal counsel before terminating or disciplining an employee who speaks about the investigation. Section 7 protects an employee’s right to organize, including the right to discuss workplace issues such as investigations or discipline.
When everything is completed, follow-up is appropriate so employees know that you have appreciated their time in this matter.
The Big Picture
Employee interviews are a core and critical function of many HR departments. It can be a difficult task to complete in a way where employees feel comfortable and supported by the employer. To help employees during the process, HR can take a variety of actions:
- Conducting the interview in a comfortable space or neutral territory
- Working around the employee’s schedule
- Setting clear expectations that the goal is to tell their honest perception of the situation
- Reiterating that retaliation will not occur as a result
Accurate and supportable employee/witness interactions can be critical to any case and HR is the first step in that process.
