New York Labor and Employment Law Report

Best Practices for Questioning Employees Accused of Workplace Misconduct

Best Practices for Questioning Employees Accused of Workplace Misconduct

October 9, 2009

By: Richard G. Kass

In our August 18, 2009 blog, we provided best practice recommendations for conducting workplace investigations generally. This post follows up on the earlier post by focusing in greater detail on best practices for questioning the employee accused of misconduct.

An internal investigation of employee misconduct serves multiple functions. It fosters compliance with corporate policies by ensuring that alleged instances of misconduct are not ignored. It promotes fairness by ensuring that any disciplinary action is based on fact rather than rumor. And it enhances morale by communicating to the workforce that the employer enforces its policies but takes disciplinary action only after giving the accused employee an opportunity to be heard. Proper questioning of the accused employee is essential to achieving all these purposes. Some best practice suggestions for conducting that questioning are provided below.
 

The Setting

The questioning should take place in a private location, such a windowless conference room. Discretion is fair to the accused, and minimizes the spread of distracting rumors.

Except in the most informal and straightforward investigations, a management-friendly observer should be present in addition to the investigator. This helps avoid disputes about what the accused admitted and how fairly the investigation was conducted. The observer can also take notes, enabling the investigator to focus on the questioning.

If the accused is represented by a union, the accused has the right to request that a union representative be present.  The union representative should be permitted to observe the questioning, but not to interfere with it.

Introductory Statement

The investigator should begin by introducing herself and the observer, and explaining the general purpose of the interview. Unless the accused already knows the subject of the investigation, no details should be provided at the outset. If the allegations are disclosed prematurely, the accused will be better able to invent a false story, limit a confession, and deduce the identity of the accuser(s).

The investigator should assure the accused of the following:
 

  • The investigation will be conducted fairly.
  • No firm conclusions have yet been reached.
  • If the accused cooperates and answers the questions truthfully, that will be considered in his favor when determining any penalties.
  • The investigation will be kept confidential. Managers and employees will be told about the matter only on a need-to-know basis.

The interview should not be electronically recorded, but you may later ask the accused to sign a written statement confirming what he has said. Open electronic recording hinders candid conversation. Secret electronic recording is likely to be perceived as unfair if it later comes to light, and may violate state law . Handwritten notes are the least distracting way to keep a record of the interview.

Questioning Techniques

If the accused does not already know who has made the accusation against him, it is often helpful to begin the questioning by asking him whether he can think of anyone who has any reason to make up a lie about him. If the answer is no, this makes it more difficult for the accused to claim later that the accusation is the product of an unfair vendetta. If the answer is yes, and the accused presents a motive for the accuser to lie, then the accused’s credibility will be enhanced.

Start with general and open-ended questions. Leading questions tip the accused off as to the nature of the allegations, and help him to craft a false “story.” The following are examples of good ways to start the questioning:

  • Did anything unusual happen at the sales conference last week?
  • Are you aware of any violations of the Company’s policy on XYZ?
  • Where were you last Friday?

If the accused denies knowledge of any unusual events, ask gradually more narrow questions. When the accused starts talking about the incident you are investigating, follow up with open-ended questions starting with the 5 W’s (who, what, when, where, why):

  • Who else was there?
  • What happened next?
  • When did that happen?
  • Where did that happen? 
  • Why did you do that?

Gradually narrow the scope of your questions to fill in the details.

Don’t be adversarial or judgmental. Make it easy for the accused to give you relevant information. Ask questions like:

  • Is there anything you might have said that may have led someone to falsely conclude that XYZ occurred?
  • Can you think of any way that someone may have gotten the false impression that you did XYZ?

You can gain more information by being deferential than by being self-righteous. Don’t be Perry Mason; be Columbo. In lawyer’s terms, an investigation should be more like a deposition than a cross-examination.  Your purpose is to find out what the accused has to say, not to embarrass or demean him. After all, the accused may be innocent. Even if he is guilty of misconduct, the accused may still be a valuable employee, and may provide you with more useful information if he feels he is being treated with courtesy and respect.

If a claim is likely to be disputed, ask who else witnessed the disputed events, so you can interview them later. You should also ask if there are any documents, emails, or other evidence that will support the accused’s version of events.

One of the biggest mistakes that investigators make is to follow a script rather than listening to what the accused says and adjusting accordingly. It is helpful to have an outline of the points you want to cover, but it is important to be flexible. Listen to the answers to your questions. Ask follow-up questions. Make sure you fully understand the accused’s story, and make sure you have all the details you need to confirm whether that story is true.

Insist on facts, not conclusions. If the accused says, “So and so was flirting with me,” ask: “What did she say?” “What did she do that makes you say that?”

Make sure you distinguish between what the accused knows from first-hand observation and what he thinks he knows from hearsay. Ask: “How do you know that?” “Did you ever see that happen?”

Make sure you are eliciting everything relevant that the accused has to say, not just narrow answers to particular questions. After the accused answers a question, make sure the question has been answered in full before you move on. This will not only increase the amount of information you obtain; it will also make it difficult for the accused to change his story or add more details later:

  •  Were there any other times when that happened?
  • Is there anything else I should know about that?
  • Did anything else happen that day?

Use silence to your advantage. You will be astonished how much information you can obtain by simply looking at someone after he answers a question, or by sitting quietly, catching up with your note-taking.

Be open to the accused’s version of the events. Do not jump to conclusions. The accusation may be incorrect, and the accused may be innocent. Suspend judgment until you have given the accused an opportunity to tell his side of the story.

If you have questions that may embarrass or antagonize the accused, save them for the end of the interview. Such questions may stifle cooperation, and diminish the amount of information you obtain.

After the Questioning

At the end of the interview, ask the accused if there is any reason why he was not able to fully answer all your questions. This avoids later false challenges to the fairness or reliability of the investigation. It is also helpful to ask the accused if there is anything else he would like to add, or that he thinks you should know.

The investigator should also direct the accused not to retaliate against any other employee for making an accusation against him or cooperating with the investigation.

If the allegation is serious enough, and if there is likely to be a dispute about the facts, consider writing up your notes in the form of a written statement for the accused to sign. This avoids claims that you have mischaracterized the accused’s version of events. If you plan to do this, you should inform the accused in advance, so he does not feel sandbagged. Writing the statement yourself is preferable to asking the accused to write it, so that the statement can be written in a clear manner, without hedging or evasion. However, you should make it clear that you do not want the accused to sign the statement unless and until he has read it carefully, corrected any errors, and feels fully comfortable with its contents. These instructions should be in writing, on the same document as the statement itself.

The questioning of the accused is just one part of a workplace investigation. If there are disputes about relevant facts, you will want to interview other witnesses, examine documents or other evidence, and perhaps even question the accused a second or third time. If the initial questioning of the accused is done using best practices, your investigation will be off to a good start. The company will be more certain that it is taking the proper steps, and everyone involved will be satisfied that the process has been fair.