Interviewing tactics during employee complaints investigations
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Interviewing tactics during employee complaints investigations

The do’s and don’ts of successful employee complaints investigations

When witnesses won’t cooperate with the employee complaints investigation
What happens when witnesses refuse to cooperate during employee complaints investigation? Well, refusal to cooperate typically is not protected legal conduct. You are able to ask for their cooperation. At this point, call your lawyers and discuss very carefully before you take any adverse action against the employee for refusal to cooperate. Make sure it’s in line with the law where you are so as to avoid a retaliation claim.

Avoid group interviews
Group interviews during employee complaints investigations typically are disastrous. Any trial lawyer will tell you that eyewitness testimony is the least credible or excuse me, least reliable form of testimony. Two people will see a car accident and see entirely different things and report them entirely differently. Same with the group interview, people will remember the questions differently, people will report on the tone of the investigator differently. It’s just not a good idea.

Write questions in advance
If you are conducting an employee complaints investigation, it’s a good idea to sit down and put pen to paper and write some limited written questions in advance. If you have a lengthy script, you’ll never get through it. You need to have flexibility. You can’t be wedded to your script. If you have a limited number of questions that are open ended and the classic journalism questions, who, what, when, where, how and why are the best open-ended questions.

And then that little word “else” if you tack it on to each of those, who else was there, what else did she say, when else did this happen and so on. That is the most powerful way to vacuum up any other details that may be out there under those headings. So don’t forget that powerful little word, “else”.

Ask hard questions
Ask the hard questions during employee complaints investigations. You have to ask for example, in a harassment investigation whether the alleged victim and the alleged harasser had a consensual relationship at any point in time. There’s no point in not asking those questions right upfront. And, you know, taking note – seeing how people react to them, obviously, you need to be delicate in asking those questions but you have to ask them.

Remember the “Standard Disclosures”
There are some “Standard Disclosures” in the beginning of just about every employee complaints investigation. The investigator typically should say “I’m representing the company, not you” to make sure that there are no false expectations of privacy or confidentiality are created, a brief explanation of what is happening, why is the investigation occurring without compromising confidentiality witnesses and without exposing people to retaliation. So that really has to be pretty short when you’re explaining what you’re doing.

And emphasis on the points of cooperation is fine. Although don’t overdo it because then it may look like duress or intimidation. It’s a really good idea to have a copy of your company’s policy prohibiting retaliation with you and to hand it to the witness. And say, you know, “You are subject to this policy and if you think you’re being retaliated against, please let us know immediately”. That can put people at ease.

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