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

Prepare carefully. Before interviewing other witnesses, select questions carefully so that they help you assess which version of the facts--the complainant's or the accused's--is more likely to be true.

Discipline with discretion. If employees refuse to be interviewed despite your best efforts, consult with employment counsel before considering disciplinary measures. For example, you may need to draw a distinction on the basis of whether the person who refuses to be interviewed is a supervisor.

Follow up. Be prepared to go back to both the complainant and the accused with follow-up questions based on what you learn from the other interviews. Like Lieutenant Columbo, you may find yourself saying, "Uh, just one more thing ..." Edwin A. Keller Jr., a partner at the management labor and employment law firm of Kamer Zucker & Abbott in Las Vegas, says: "One of the most common and often disastrous mistakes made in workplace investigations is the lack of follow-up. The failure to re-interview the complainant, the accused and other witnesses to address new information and evidence can lead to allegations of negligence leveled by a disgruntled complainant and an irate accused employee-often in separate legal proceedings."

Phase II

Having gathered information, it's time for Lieutenant Columbo to go back to her office, toss her raincoat on a chair and start wrapping up the investigation. The second part of this article, which will appear in the August issue of HR Magazine, will provide tips for making and communicating findings, and developing and executing a corrective action plan.

Online Resources

See the online version of this article at www.shrm.org/hrmagazine/04July for more information on when an employee is entitled to have a representative present during an investigatory interview that may lead to discipline, including

* An HR Solutions column on the Weingarten right.

* An SHRM white paper.

Online Resources

To learn what happens when an employer stops short during the interview process, read the majority and dissenting opinions in the 2001 decision of the 9th U.S. Circuit Court of Appeals in Swenson v. Potter. See the online version of this article at www.shrm.org/hrmagazine/04July.> Editor's Note: This article should not be construed as legal advice or as pertaining to specific factual situations.

RELATED ARTICLE: Plan the Investigation

After interviewing the complainant, make a list of steps you will take in the investigative process. Include all of the following items.

* Identify the persons who need to be interviewed: the accused, witnesses, persons identified by the complainant and others, such as supervisors or co-workers, who may have relevant information.

* Obtain and secure evidence, including documents identified by the complainant, the complainant's and the accused's personnel files, and any written correspondence between them, including e-mail exchanges. (Assuming your company has disseminated an appropriate computer use policy, you should be able to search computer information without the employees' advance notice or consent, but first check with employment counsel.)