Say you’re investigating a sexual harassment claim. You’re about to begin the first interview with the suspected perpetrator. The interviewee asks if it is OK to take notes. You fear that he may show the notes to co-workers or to an attorney, so you reject the request.
That’s not a good idea, says Jonathan Landesman, a-side employment law attorney for Cohen Seglias in Philadelphia.
“I wouldn’t want my client to say to a judge, jury or federal agency, ‘That’s right. I wouldn’t let the employee take notes even though the person wanted to.’ It comes across as heavy-handed and unfair,” says Landesman.
To conduct misconduct interviews that don’t provide legal ammunition to the employee, come prepared with answers to tough-but-valid questions that employees may ask during the investigation.
Here are some of the most difficult questions along with responses that can protect you legally:
1. Question: “Can I tape record the interview?”
Answer: “No.” You needn’t give a reason. Tape recordings can misrepresent what HR professionals say because they don’t reflect nonverbal cues and gestures. HR professionals aren’t trained to speak in a specific and precise way that accurately communicates their intent on tape. Check state laws.
2. Question: “Why are you taking notes?”
Answer: “We are taking notes to document this meeting. It’s a fact-gathering process and we want our investigation to be as thorough as possible.”
3. Question: “Can I have a copy of the notes?”
Answer: “These notes are company records and property and we can’t share them with you.” Check state laws.
4. Question: “How many times will I meet with you?”
Answer: “We will decide that on an as-needed basis as the investigation proceeds. We may have to meet with you again and we will expect your cooperation.”
5. Question: “What if I don’t want to answer your questions?”
Answer to suspected perpetrator: “You have an allegation against you. You are required, as part of your job, to cooperate in an investigation. To the extent that you don’t cooperate, it could be considered insubordination and could subject you to disciplinary action, including discharge.”
Answer to a potential witness: Use the second and third sentences in the preceding statement.
Answer to the suspected victim: “We can’t investigate your claims without your cooperation.”
6. Question: “Can I think about that question and get back to you?”
Answer: “I need your best recollection right now as best you can provide it.” Gently press the employee, especially witnesses and suspected perpetrators.
7. Questions: “Who else will you talk to?” “Has the victim complained about anyone else?”
Answer to such lines of inquiry: “I can’t address your questions. We are here to gather facts for this investigation.”
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