Private eye 101: master the fine points of conducting investigatory interviews; First in a two-part series

HR Magazine, July, 2004 by Jathan W. Janove

The call comes in to the human resource department on a dark and rainy Monday morning. A frantic payroll clerk is pleading for help. She says the vice president of accounting has been sexually harassing her.

Like her favorite TV detective, the HR director throws on a rumpled raincoat, chomps down on her unlit cigar and leaves the office to start an investigation.

If you're called upon to be "Lieutenant Columbo" in a workplace investigation, you need to know how to do it properly, avoid legal pitfalls and ensure that in the end the workplace is better for your investigation, not worse.

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Having conducted numerous workplace investigations, having trained HR professionals in investigatory techniques and having litigated cases resulting from botched investigations, I offer in this article--with comments from some colleagues--the basics of gathering information during an investigation. Next month, in the second part of this article, I will address what's done with the information.

Begin with the Complainant

The critical first step in almost all internal investigations is to interview the complainant--in this instance, the payroll clerk. To start on solid ground and avoid common pitfalls, consider the following elements:

Preliminaries. Identify yourself to the clerk, explain that you are investigating her complaint and ask if she is comfortable with you in this role. This can help prevent unpleasant outcomes such as the one in which a complainant, dissatisfied with the results of an HR representative's investigation, attacked the integrity of the process by alleging that the investigator had had an affair with the accused!

If possible, select a fellow HR staffer or other management representative to serve as a witness and take notes. This can reduce the chance of allegations of impropriety arising from the interview process.

Give the complainant a copy of the company's anti-harassment policy, even if she already has one. This reinforces your company's values and demonstrates its commitment to a harassment-free environment--whatever the outcome of the investigation.

Advise the complainant that, regardless of the outcome of the investigation, the company will not tolerate any form of retaliation against her, and instruct her to alert you or others in management if she has concerns about retaliation.

Explain that information pertaining to the investigation will be treated as highly confidential and will be conveyed to others only to the extent necessary to conduct a proper investigation and achieve a resolution. Ask for the complainant's cooperation in keeping information confidential. However, don't guarantee confidentiality or promise that her identity will remain a secret. With few exceptions, such as situations presenting an unusually high risk of retaliation, you typically will need to disclose the complainant's identity to the accused.

If the complainant is reluctant to go forward, explain that once informed, the human resource department is obligated to investigate and correct any problems. Explain that you will encourage all those interviewed to maintain confidentiality, but that federal labor law limits the employer's right to curtail workplace conversation about terms and conditions of employment. In some instances, you can overcome a complainant's reluctance to proceed by explaining that going forward could help other employees who may be experiencing the same problem.

Determine whether the complaint involves allegations that are particularly serious or otherwise have great potential for retaliation, violence or other problems. If it does, you probably should put the accused on leave pending the investigation. You may need to take other precautionary steps such as alerting security. Also, consider any claims of injury made by the complainant. According to Paul E. Prather, a founding member of Kiesewetter Wise Kaplan Schwimmer & Prather PLC in Memphis, Tenn.: "An employer can often limit its potential liability and get the complainant back to productive work sooner by referring the employee to an employee assistance program or mental health provider to promptly address any claims of mental distress."

The Interview. In conducting the interview, use the "funnel" method--"pouring" all of the complainant's information into the top of the funnel by asking open-ended questions such as "who, what, when, where and why," and by probing for details, examples and background information, including witnesses who may or may not support her claims. Condense this information at the bottom, or narrow end, of the funnel by asking the complainant if you understand her correctly and reciting back to her what you believe to be the key points she is making.

This method gives you a clear picture of the complaint without erroneous assumptions about the complainant's perceptions. It also helps to establish a comfort level between you and the complainant and demonstrates that you truly want to understand her concerns. The credibility you build up here will become important later, especially if your findings do not square with the complaint.