Workplace Investigations - Witnesses Interviews

Teri Morning MS, MBA, SHRM - SCP

About The Presenter

Teri Morning, MBA, MS, SHRM-SCP specializes in solving company “people problems.” Teri is the founder and a principal partner in HRHindsight- employee investigation and incident management software. Teri also sources software solutions for compensation and performance management. Teri has over 20 years human resource and training experience in a variety of professional fields, including retail, distribution, architectural, engineering, consulting, manufacturing (union), public sector and both profit and non-profit company structures. Teri has enjoyed consulting with employers on their problems and trained managers and employees for over 20 years, meeting and working with employees from all types of businesses. In addition to a MBA, Teri has a Master’s degree in Human Resource Development with a specialization in Conflict Management. She was certified by the State of Indiana in mediation skills, is certified in Project Management and IT Management, qualified as a Myers-Briggs practitioner and holds the SHRM certification of a Senior Certified Professional.

Agenda

How to prepare and what to do before an interview

Organizing your interview so you can ask good questions

Starting and ending your interview

Strategies for the reluctant witness

The angry "hothead". Dangerous or something else?

Body language: Can you tell if a witness is giving false or skewed testimony? Developing behavioral baselines

Considering cultural diversity

The note taker and their role

Taking notes and pacing the interview

Educating all parties about preventing retaliation

What about witnesses that are not your employee? Tips for customer complaints and joint employment interviews

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Get a System

Forms, processes, protocols.

Investigate as policy implications unless attorney instructs otherwise.

Avail yourself of good, state specific, legal advice.

Get clear on the policy and what exactly is a potential violation.

Divide by issues, allegations, elements, or time. When interviewing, after each one, summarize and review.

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Get a System

Consistent method of taking notes.

Consider a simple investigative policy.

What would a reasonable person do?

Good faith.

Educational disclosures and beginning the interview.

Get your questions set up and organized beforehand.

Note: Training

Note: Investigatory files. Check state laws.

Appointing the Right Investigators

First considerations: Ability to maintain objectivity. Logical and fact driven, fact

finder.

Skill level in managing that type of investigation, e.g. fraud, safety, harassment.

Positive or negative affiliation/relationship/history with any of the core parties in the current investigation.

Investigator competencies: Ability to demonstrate assertiveness, not aggressiveness.

Knowledge of policies, procedures, and compliance.

Interviewing skills.

Excellent verbal and written communication skills.

Ability to develop rapport with witnesses.

Appointing the Right Investigators

Two investigators is best.

One interviewer.

One note taker.

If possible try to minimize the perception of bias:

Matching demographic profile by balancing gender, ethnicity, etc.

Diversity = a unique background, heritage, and life history.

Matching or exceeding position level.

Union Representation

Weingarten Rights - The rights of employees to have union representation at investigatory interviews.

Preserving union rights during investigatory interviews. Union employees are often entitled to representation.

If information provided by employee may become a basis for discipline, the employee is entitled to union representation.

Employee is not entitled to representative of his/her choice.

Management is not required to inform the employee.

What happens then?

Note: Contract requirements for notification of witnesses?

Body Language – Your “Gut”

CIA/FBI have specific training, more than a couple books and watching a TV show.

Beware false 1st impressions. Good watch, good shoes, good wallet….you can go anywhere. Humans are hardwired to be swayed.

Witnesses’ body language may be influenced by other factors.

Develop a behavioral baseline. Observe “normal” responses at beginning of interview.

Ask 5-7 questions (execs 10 +) that can be answered truthfully.

You're looking for changes from the behavioral baseline. “Poker tells”

Inquire further, don’t just assume.

Your Body Language

Investigator has a whole story going on with their body language too!

Stay neutral. Calm and not reactive. Watch your “poker tells.”

Avoid “scrunching” yourself downward. Huh? Keep your body language, posture and your face “up.”

Present, attentive and alert, but not overly animated.

Slowing down. Calm and steady unless you a have a reason for otherwise.

Speeding up? For what reason.

Not Beyond The Realm Of Possibility

That some individuals may be impaired due to the use or abuse of alcohol and/or drugs, e.g. safety accident.

Some may be suffering from a physical or psychiatric impairment.

If a person seems in distress, either physically or emotionally, ask if there is something you can do to assist them.

If the witness truly appears to be uncomprehending, and/or unduly distressed, discontinue the interview and assess the situation. You may be gathering unreliable information.

Note: Even if not impaired, be aware of upset people leaving and getting in a car or operating machinery.

Baseline Questions

Examples of behavioral baseline questions: How long have you worked here?

How did you get started with the company?

What is your current position?

Where did you work before coming to this department?

What other jobs/positions have you held in the company?

What does an XYZ do?

What are your duties and responsibilities?

What Am I Observing?

Spatial posture (organized, disorganized).

Body positioning (spread out or not, appropriate, inappropriate, offensive).

Physical coordination (fluid, jerky, impaired).

Physical touching (habitual, appropriate, inappropriate, offensive).

Eye movement (dilated pupils, constricted pupils, rapid eye movement, evasive eye movement, eye contact, much eye contact then none).

Vocal tenor (pressured, shaky, inappropriately loud voice, soft voice).

Facial expressions (frowning, smiling, pensive, worried).

Physical gestures (quirks that indicate nervousness or lack of emotional safety).

Physiological signs (pale, shaking, crying, sweating, confusion, disorientation, smell).

Speed of motion (lethargic/dulled or alert/quick).

Taking A Complaint

Anyone who takes complaints should know the company protocols.

Consider a form.

Ask employee to write the situation down. Give them plenty of time.

If they won’t or can’t - write it for them.

Regardless of who wrote it, review the accounting, edit appropriately and consider asking employee to sign.

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Taking A Complaint

Gather additional information.

Ask clarifying questions.

Realize failing to take an accurate initial complaint can compromise the whole investigation.

Ask for mentioned evidence. Electronic and otherwise. Social media?

Witnesses?

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Taking A Complaint

Have they reported before? If yes, ask 5Ws and a H.

Give 2 cards, review educational process and make a 2nd appt.

Legal counsel?

Remedial action?

Need to know?

Potential witnesses.

Order to interview.

Before Witness Interview

Review the originating complaint if you have one.

Review any evidence. Physical, narrative, or documentary.

Review any files of applicable situations.

Review any files of persons named.

Consider starting a chronology.

Not all documentation is good documentation.

What are you documenting, why are you documenting, how will the documentation be used.

Don’t destroy evidence.

No attempt to sway outcome.

Rescheduling?

Educational Process

A script; Complaint, witness, accused. When to bring up what?

Thank them. Before and after.

Review applicable polices. Responsibility to cooperate.

Explain interviewing process.

Give me as much detail as possible…

In a perfect system … the investigator is a fact finder only.

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Educational Process

Explain interruptions.

Retaliation.

Confidentiality? You? Them? NLRA decision.

Questions?

Ready to begin?

Policies

2 cards

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Environment

Interviewing in general: Establish a non-confrontational environment, applicable to

situation, explaining neutrality of investigators.

Choose neutral location as far away from other employees as possible.

Develop rapport at beginning of interview.

Educate

Interviewing the accused: Always have two investigators in the interview room with an

accused.

Interview Tips

No white lights. Don’t make promises of benefit or threats of adverse action.

Recognize when you need a separate investigation.

Use open ended mostly - 5 Ws and a H. Over and over.

Closed ended for clarification, details, get a straight answer or get someone back on track.

“Silence is Golden”: He who controls the silence in the room…

Ask question a different way later if warranted.

And then what happened?

Consider maps, diagrams. One per witness. Visit the scene. Go look!!!

Interview Observations

Asking specific questions = Getting specific answers.

You gather the best information by crafting careful questions, accurate capture of facts and some observation of BL. Not by winging it and relying on body language.

HR can make the best and worst investigator for the same reason.

Why am I talking to this person?

“Am I in trouble?”

Feelings…

Don’t interrupt. Let them tell their accounting their way. Steer.

First or second hand information.

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Interview Questions

Goal – Recreate the scene and gather accurately, applicable facts. For each issue, element, time, inquire:

Exactly what occurred?

When did it happen?

Where did it happen?

Who was present?

Who else may know relevant information?

How did it happen?

Who did or said what? In what order? (e.g. touching, safety)

Why did it happen? Could it have been avoided?

Are there any notes, documents, or other evidence?

Ask what was observed.

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After Baseline Questions

First interview questions after baselines (as applicable): “Do you know why you’re here?” (If yes, “What do you

know?”) and,

“Has anyone talked with you before coming to this meeting?” (5Ws and a H)

Establish if witness has been coached or threatened.

Put witness at ease if he/she was coached or threatened. Discuss retaliation.

May have a second investigation depending on the conduct.

Generally 3 ways to open an interview.

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Interview Questions

People are not video units.

Most are vague in their recollections. Experience in their own way.

Give them time to recall in their own way. At least 8 seconds to begin to answer.

Always set aside more time than you think you’ll need.

Don’t express opinions or agreement.

Don’t assume.

Don’t record opinions.

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Interview Questions

Avoid the, Loaded questions

Accusatory questions

Multiple, compound questions

Leading questions

“Why didn’t you…” questions, e.g. harassment reporting

Asking For Other Witnesses

Who else has knowledge of this situation?

Ask the witness to identify all individuals whom the witness believes may have knowledge of the events at issue. For each individual, ask:

What knowledge does the witness have?

What is the source of the witness’s knowledge?

Was the witness present?

Did the individual hear the information from someone else?

Is it the witness's evidence?

Did the individual see the information in writing? Do they have a copy? Take a picture? Save it?

The Note Taker And Their Role.

Introduce.

Explain the note taking process.

Write the names of those present and the date, time, and place of the interview at the top, and sign and date the notes.

Give the note taker time to take the notes.

Computers are mainstream but not if you make them a distraction…

The note taker generally writes the final report.

One set of notes.

Ending The Interview

Before you wind up. Who else has knowledge of the situation?

What else do you want me to know?

Witness statements?

Record the results: Make sure notes are legible, accurate, and free from

scribbles, misspellings and “ personal shorthand.”

Sign and date the notes.

After interview, review: Discuss with co-investigator credibility of the witness

Was the witness deceptive? Credible? Why or why not? How?

Was the witness hostile or reluctant? Why or why not? How?

Don’t try to figure out what happened after every interview.

After The Interviews

Prepare interview notes Create a typewritten summary of the interview and have

witness sign or initial.

Include only factual, relevant information, discarding hearsay.

Include: names of attendees, date/time/location of meeting.

Stamp attorney-client privilege if advised by counsel to do so.

Miss anything? Need to re-interview?

A single interview may not suffice. You may even need to conduct multiple interviews of the same witness, if you receive conflicting information from other witnesses.

Note: If you are re-interviewing every witness, in every investigation, multiple times, even in the absence of conflicting information, you may be disorganized in your processes.

Signatures of Witnesses

May want to have witnesses sign the interview summary.

Refute later 90 degree revisions of testimony by witnesses who change their story or become hostile.

Establish a policy on accessibility to these summaries.

State law?

While the summary is generally, as the investigative file, the property of the employer, witnesses may want (or require) a copy.

Keep in mind that the witness may be inclined to “share.” NLRA decision

Complaints? It’s their complaint.

So ask your attorney for current guidelines.

Reluctant Witness

Opposite - too eager generally has a reason (maybe a good one) but usually a reason nonetheless.

Underlying reasons for reluctance, Fear of peer pressure.

Fear of retaliation.

Fear of corrective action.

Fear or distrust of management.

The need to hide the truth through deception.

Sabotage of the process for perceived personal gain.

Reluctant Witness

Use empathy and open-ended questions to overcome reluctance:

“I sense you are reluctant to cooperate with us. May I ask why you are reluctant?”

“It appears this is uncomfortable for you to discuss…what can we do to make you more comfortable in talking about this?

Write it down?

But don’t get sympathetic, or say, “I know this is horrible for you and so far, certainly sounds like sexual harassment and a violation of half a dozen other polices to me.”

Fact finder – not employee advocate.

Hostile Witness

The interview is not about you. You’re the fact finder. Let it go. Most of the time.

What are they doing that leads you to think it’s a purposeful attempt to cause a problem or gain an advantage of some sorts?

Do not engage in an argument with a hostile witness. Never do anything to put yourself in a dangerous situation.

Try silence.

Don’t get in a hurry. Stay on the facts.

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Hostile Witness

Passive lying by omission. The Smirk.

I didn't see anything.

I don’t have to talk to you.

Do not be bullied into giving witness names or “Tell me what they said.”

Summarize and repeat their narrative just as with anyone else.

I have 3 credible first hand accounts that… Would you like to explain the discrepancies.

If he/she has nothing to hide…why fail to answer questions?

Hostile Witness

If an accused refuses to participate: Explain its their opportunity to respond.

If not, explain the report will state he/she was uncooperative, or argumentative if applicable.

So decisions will be based on evidence collected—without their side of the facts.

Document the facts of the hostile witness’s behavior. What exactly he/she did or said – not their “attitude” or “negative body language.”

Repeat their narrative back just as with anyone else.

Keep the door open for them to reconsider.

End the interview on a neutral basis.

Untruths

Oh, what a web we weave… Don’t try to get slick and bust an investigatory TV Mentalist

move...

Pay close attention, and ask good questions.

Often, the more “at-risk” the witness is, the more inclined he or she may be to deceive.

Telling a witness you think he or she is lying doesn't help.

Most accused don’t break down and “confess their guilt” as in TV shows.

Take very good notes, the better to catch a contradiction.

If they mention evidence, ask for it.

Untruths

Just let witnesses you believe to be untruthful run on…

The more details someone gives you the more likely you will catch contradictions.

The more details you let an untruthful witness give you, the more they think you believe them.

Get the narrative pinned down. Repeat it back.

Then start clarifying the contradictions.

Ask about events out of order.

Be aware, the mood may very suddenly get very hostile.

Definitions

Malicious false complaint. A deliberate and purposeful attempt to gain an advantage through the misinformation of a knowingly false complaint.

Merely being wrong is not a malicious complaint.

Deception is about creating and/or maintaining misleading impressions. This can also involve the deliberate withholding of relevant information.

Deception can be “active” or “passive.”

Some Safety Tips

Never do anything to put yourself in an unsafe situation.

Some use anger as a defense, but if in doubt, stop the interview. You can always come back.

Get a code word. Have a standby. Get a panic button if you regularly conduct investigations.

2 ways out of the room.

Some employers have a lockbox for belongings outside of the interview room. Boundaries.

Window with a curtain.

Don’t box yourself in the canyon.

You do have to have management support on the hard issues.