Witnesses at Investigative Interviews, Quirky Question # 84

Posted by on March 2, 2009 · Leave a Comment 

Quirky Question # 84:

We periodically have to investigate alleged wrongful conduct by our employees.  Some of these employees want to bring another person with them to the investigative interview.  Over the years, I’ve received conflicting reports about whether we have to allow this practice, or not.  One employee who was insisting on having someone with her during the investigation told me that even though she is not a union employee, she has “Weingarten” rights.  What’s that?  Do I have to allow her to bring someone with her to the interview?

Roy’s Analysis:
Like your company, many employers conducting investigations receive requests from their employees to have another person present at investigative interviews.  Sometimes that person is a co-worker, sometimes that person is a friend or family member, and sometimes the employee asks to have a lawyer accompany him/her to the interview.  As I’ve touched on in other Blog analyses, subject to the qualifications described below, all of these requests should be rejected.  You do not want other employees sitting in on the investigative interview.  You don’t want non-employees sitting in.  And, you certainly don’t want attorneys participating in the interview.  I’ll return to each of those contexts below.

You specifically inquired, however, about “Weingarten” rights and what that means.  The fact that you are unfamiliar with the term suggests to me that your work force in not unionized.  (I draw that inference only because the concept of Weingarten rights emanates from a National Labor Relations Board (NLRB) case and likely would have come up before if your workforce comprised union employees.)

In a setting involving unionized employees, employees possess contractual rights that the employer must respect during the course of the investigation.  Unlike private employees in a non-unionized environment, a union member may be entitled to have a union representative present during an interview where the interview may lead to disciplinary action.   This right to have a union representative present in interview contexts where the interviewee is potentially subject to disciplinary action is referred to as a “Weingarten” right and is derived from the case of  NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).   

So, the first question to explore is whether the employee being interviewed is subject to a collective bargaining agreement.  If the employee is a union employee, the next question to explore is whether the person being interviewed may be disciplined as a consequence of the interview.   If the answer to each inquiry is affirmative, the interviewee has the right to have a union representative present during the interview. 

From a practical perspective, of course, it is often difficult to predict whether an investigative interview will reveal facts that could lead to the employee’s discipline.  Before the interview commences, you may not know what information is likely to be disclosed and what the interviewee’s role may have been in the problematic conduct.  For that reason, some employers ensure that a union representative is invited to participate in any investigative interview of a union employee. 
Further, union employees are entitled to meet with a union representative prior to being questioned about their alleged workplace misconduct.  In U.S. Postal Service v. NLRB, the employer was investigating an employee for alleged misconduct and, pursuant to Weingarten, the employer permitted the employee to have a union representative present during questioning.  The employer refused, however, to allow the employee to consult with his representative prior to the meeting.  The NLRB held that such a refusal constituted an unfair labor practice in violation of the NLRA. 

As this analysis reveals, a union employee may have a right to have a union representative present at an investigative interview.  Further, the employee may have a right to meet with the union representative prior to the investigative interview.  Despite those rights, however, the interviewer need not cede control of the interview to the union representative, letting him/her take over the interview, begin questioning the interviewee, or otherwise engaging in any behaviors that interrupt or, worse, disrupt, the interview process.  If this situation occurs, seek cooperation from the interviewee and the representative.  If problems persist, terminate the interview and resume it at a later date under more controlled circumstances.

If you are not dealing with union employees, Weingarten rights do not apply.  Although there was some confusion about this issue for a period of time, at least for now this debate appears to be over.  See, e.g., NLRB vs. IBM Corporation, 341 NLRB No. 148 (June 9, 2004) (NLRB decided private employees in a non-union setting do not have the right to have a co-worker present at an investigatory interview, even if the interview in question might lead to disciplinary action).  In short, for non-union employees, you do not have to allow others to accompany your employee to an investigative interview.  Moreover, if you were to allow someone else to attend, you are exposing yourself and your company to unnecessary potential grief.   

Your ability to control the interview itself, and the information revealed during the course of the interview, would diminish further if a non-employee were allowed to sit in on the investigative interview.  Whereas you can discipline a co-employee who breaches the confidentiality of the interview process, you have relatively little recourse against a non-employee observer to the interview.  If that person disclosed the interview contents to others, what recourse would you really have?  If he/she wrote an interesting article about the nature and content of the interview and posted it on the Internet, what would you be able to do?  If that person shared critical data (perhaps just recounting questions you posed) to the target of the interview, what would your options be? 

Similarly, the presence of an attorney at an investigative interview will complicate your life.   What role will that individual play?  Who is the attorney representing?  Will he/she have an attorney-client relationship with the interviewee?  If the two of them step out into the hall to discuss a question you posed, will you be able to ascertain what they discussed?  If he/she instructs the person you are interviewing not to answer, what will you do?  If objections are asserted to your inquiries on the basis of relevance, hearsay, foundation or other standard objections that might be asserted in a judicial proceeding, how will you respond?  Will the presence of an attorney on behalf of the witness lead you to conclude that you need a lawyer present on behalf of the company?  What requests, if any, will you make of the attorney with respect to the confidentiality of the interview process?   Even if the attorney-witness pledged to maintain the confidentiality of the interview, how would you ever enforce that promise?  If the lawyer later established an attorney-client relationship with the target of your investigation, how could you restrict the information shared with that individual?  How would you ever discover what was disclosed?  As these, and many other potential questions reveal, allowing an attorney to participate in an investigative interview as a witness for the interviewee potentially raises a variety of difficult problems.

In sum, with respect to the issue of witnesses at investigative interviews, different standards apply to union and non-union employees.  Although a union employee may have the right to have a witness present at the investigative interview, that is not true for non-unionized employees.  Moreover, there are a variety of compelling reasons why you should not allow interviewees to bring third-party witnesses with them to the investigative interview. 

If you advise an interviewee that he/she may not be accompanied by another person during the investigative interview and the interviewee therefore refuses to participate, a different set of questions is raised.  Since I’ve addressed some of these issues in a prior Blog analysis, I won’t repeat them here.  (If you’re interested, simply scroll down on the “View By Topic” bar to the left and click on “Investigations.”)

Presumably, the reason you are conducting the investigation is that you believe some wrongful conduct has occurred.  You do not want to reveal that information to a third-party witness, even if he/she is also an employee.  Your standard admonitions about confidentiality and privacy will lose considerable impact if another person is allowed to sit in on the interview.   Further, there are a variety of circumstances where the purpose of your investigation could be thwarted, or partially undermined, if you allowed another employee to sit in.  For example, what if the employee asked to sit in on the interview was the target of the investigation, the very individual you suspected of wrongdoing?  The questions you posed will be quite revealing to that individual.   Even if the third-party participant is not the target of the investigation, what if he/she was a friend of the target?  Would that person’s presence, even if he/she were ostensibly brought in to support the interviewee, affect the content of the answers provided?

As this analysis reveals, a union employee may have a right to have a union representative present at an investigative interview.  Further, the employee may have a right to meet with the union representative prior to the investigative interview.  Despite those rights, however, the interviewer need not cede control of the interview to the union representative, letting him/her take over the interview, begin questioning the interviewee, or otherwise engaging in any behaviors that interrupt or, worse, disrupt, the interview process.  If this situation occurs, seek cooperation from the interviewee and the representative.  If problems persist, terminate the interview and resume it at a later date under more controlled circumstances.

 

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Quirky Question # 42, Investigation Inquiries

Posted by on June 16, 2008 · Leave a Comment 

Quirky Question # 42:

This week I’ve decided to take a slightly different approach to my Quirky Question Blog.  I recently presented a Continuing Legal Education seminar on Workplace Investigations, at the end of which I received a number of thoughtful questions from the audience.  Although these questions are not particularly quirky, I thought they were worth addressing.  The following questions will be addressed next Monday.

1)         Is there a time frame you recommend for employers to commence an investigation into workplace misconduct?  Is there a time period by which the investigation should be completed?

2)         If a lawsuit is filed on the morning the investigation is commenced, must that fact be disclosed to the interviewees?  Would this assessment change if the interviewee is named as a defendant?

3)         How do you prevent an interviewee from sharing with other employees the discussion that takes place in an investigative interview?  Would you recommend disciplining a witness who does not maintain the confidentiality of the interview discussion?  Should that person be terminated?

4)         What if an employee surreptitiously records an interview session?  What can be done to retrieve the tape recording?  What consequences can be imposed for this conduct?  If the tape is recovered, can it be destroyed?

5)         How can you evaluate witness credibility if the interviews are being conducted telephonically?

6)         What right does the employee accused of wrongful conduct have to obtain the investigative report?  How about the witnesses who are interviewed?  How about the person making the accusations?

Tune in next week for a discussion of these inquiries.

Roy’s Analysis:
[Because Quirky Question # 42 contained a variety of different inquiries regarding workplace investigations, I have restated each of the questions below, as well as providing my response.  I hope you find the information helpful.] 

1)    Is there a time frame you recommend for employers to commence an investigation into workplace misconduct?  Is there a time period by which the investigation should be completed? 

Investigations into suspected workplace misconduct should be initiated promptly.  Beyond that general guideline, however, the speed with which a company should initiate an investigation largely depends on the circumstances and the type of misconduct being investigated.  For example, if the company believes there is a risk of workplace violence, the investigation must be commenced immediately and appropriate precautionary steps must be instituted immediately, even if they are only temporary and await a more complete investigation.  Similarly, if the company believes that employees are trading securities on the basis of inside information, again there are critical reasons to begin your investigation as soon as possible.  There are many other contexts in which a careful and prudent company, which is desirous of minimizing the risk of injury to other employees, the public, or the company, and desirous of reducing the risk of litigation, will take prompt action to investigate allegations of employee wrongdoing. 

In a typical investigation into allegations of workplace discrimination and/or sexual or other types of harassment, the company needs to move aggressively, though perhaps not quite as aggressively as it would in the contexts described above.  Even this observation, however, is contextual.  For example, if the sexual harassment investigation involves allegations of inappropriate jokes in the workplace, those allegations would warrant one type of response.  If, alternatively, the sexual harassment allegations related to sexual assault, the investigation must be initiated immediately.  In general, courts have made clear that they expect companies to respond to allegations of harassment and/or discrimination promptly (i.e., within days, not weeks or months).  The longer a company allows serious allegations to remain unexplored, the less receptive the courts will be to the company’s defense and the easier it will be for the plaintiff to argue (perhaps justifiably) that the company was indifferent to the serious problems brought to its attention.  As these examples illustrate, one size does not fit all.  Tailor the nature of the investigation to the types of allegations made.  The timing, scope and the speed of the completion of the investigation will likewise depend on the claims made and the facts uncovered during the investigation itself.

2)    If a lawsuit is filed on the morning the investigation is commenced, must that fact be disclosed to the interviewees?  Would this assessment change if the interviewee is named as a defendant? 

This is an interesting inquiry and one I have not personally encountered.  In general, I do not believe the fact that litigation was just instituted needs to be disclosed to the interviewees, subject to the caveat discussed below.  I am not sure, however, what downside would be associated with disclosing that information in most instances.  Indeed, apprising employees that a lawsuit had just been filed that morning might help them better appreciate and understand the stakes involved for the company and make them more cooperative.   

As the second observation above reflects, my attitude would change if the company were interviewing the defendant.  In this instance, I believe that the fact of the lawsuit and the employee’s identification in the lawsuit as a defendant should be disclosed to him or her.  (For the purposes of the question, I will assume that the lawsuit was filed by a third-party, not the company itself.  If the company is the plaintiff, a broader set of ethical rules would come into play.)  I am not aware of any legal requirement to disclose the litigation to an interviewee, even one named as a defendant, but I consider that approach fairer and more prudent.  The accused may wish to obtain counsel, the accused may wish to consider more carefully what information he or she discloses voluntarily, and/or the accused may wish to thoughtfully consider all options, including resignation, before participating in an investigation.  All of these potential desires are legitimate and should be respected.  Moreover, if the company were to push ahead with its investigation, without disclosing the fact that the lawsuit had been filed that day, the employee’s lawyer later may be able to exploit that fact.  In my experience, jurors like to see not just a compelling substantive justification for a company’s action, but procedural fairness as well.  Interviewing someone who has been named as a defendant in a lawsuit, without disclosing that fact, does not have the appearance of procedural due process.

Finally, there may be compelling reasons not to proceed with the investigation and the interview of the accused once the lawsuit has commenced.  For example, assume that the named defendant is a member of management who has been accused of sexual harassment.  Assume further, that you interview him without revealing the filing of the lawsuit and that he largely admits wrongful conduct.  Although these admissions may provide the company a basis to discharge him (especially if the allegations are sufficiently serious or he is a repeat offender), you also confront the risk that his status as a member of management will result in his actions being imputed to the company, with attendant corporate liability.  If your investigative report later must be disclosed during discovery, the company may have provided an assist to the plaintiff.  In short, once litigation has begun, I believe that a company should consider carefully just how it wishes to proceed with an investigation into the alleged wrongdoing.  This assessment should include an evaluation of whether an independent investigation is even warranted or whether the “investigation” simply should be performed in the context of the lawsuit itself. 

3)    How do you prevent an interviewee from sharing with other employees the discussion that takes place in an investigative interview?  Would you recommend disciplining a witness who does not maintain the confidentiality of the interview discussion?  Should that person be terminated? 

Individuals being interviewed in connection with a company investigation should be advised at the outset of the interview that the company is engaged in a confidential investigation and the company’s expectation is that the contents of the interview, both questions and answers, will remain confidential.  It also is appropriate to inform employees that if they reveal information disclosed in an interview (either questions or answers) to other employees or anyone outside the company, including family members, the employee will be subject to discipline, up to and including discharge. 

In my view, it would be appropriate to discipline someone who disregarded that directive.  The level of the discipline, and the difficult question of whether the employee should be terminated for revealing the contents of the interview, again (like Question # 1 above) is highly dependent on the nature of the investigation.  For example, if the company is investigating insider trading and the interviewee tips off the employee accused of this illegal conduct, the interviewee should be terminated.  If, however, the alleged offense is far less severe, discharge may be a completely disproportional response to the revelation (intentional or inadvertent) of some aspect of the investigative interview.

Before terminating an individual who has participated in an investigation, you also should consult with in-house or outside counsel.  The key issue you will want to consider in this context is whether the termination could be characterized as retaliatory.  This issue currently is before the U.S. Supreme Court and will be the subject of a future Blog.

4)    What if an employee surreptitiously records an interview session?  What can be done to retrieve the tape recording?  What consequences can be imposed for this conduct?  If the tape is recovered, can it be destroyed? 

The question presumes that at some point after the interview, the company learns that someone has secretly recorded the interview session.  Clearly, you want to obtain all copies of the tape.  It could be passed along to other interviewees or individuals outside the company.  Moreover, in our digital age, you could discover the audio tape had made its way to the Internet or a website.  Given these risks, I recommend that the company immediately try to retrieve all copies of the audio tape.  Further, you could advise an employee who refused to return it that he/she will be subject to discipline, up to and including termination.  (Again, however, this admonition should be considered carefully with counsel to ensure that the company is not increasing the likelihood of future litigation.)   
You also ask whether the company can destroy the tape.  This is a more difficult question, and implicates some facts that are not addressed in your inquiry.  For example, has a lawsuit been instituted?  Is it likely that a lawsuit will be instituted?  In either of these contexts, the prudent course of conduct is to preserve this evidence carefully.  You do not want to expose the company to a risk that it will be accused of spoliation of evidence (essentially, a claim that the company destroyed inculpatory evidence).  Even in the absence of a lawsuit, or the likelihood of a lawsuit, the more conservative approach is to retain the tape.  By doing so, you will avoid the risk that you are later accused of destroying evidence that either was damaging to the company or in some way beneficial to the interviewee.

5)    How can you evaluate witness credibility if the interviews are being conducted telephonically?

As recognized by your question, it is difficult to assess witness credibility in a telephonic interview.  Therefore, I recommend that, for interviews where you have a reasonable basis to believe that witness credibility will be an important factor in your assessment, you not conduct the interviews over the telephone.  If you have to conduct telephonic interviews, you will have to base your credibility assessments on issues such as consistency with other testimonial and documentary evidence.

 6)    What right does the employee accused of wrongful conduct have to obtain the investigative report?  How about the witnesses who are interviewed?  How about the person making the accusations?   

 The employee accused of wrongful conduct has no right to obtain or even review the investigative report.  The same holds true for the witnesses you interview.  A similar observation applies to the person who made the accusations.  You do not have to provide the investigative report to any of these individuals.  I strongly recommend that you not do so.

Of course, if litigation is commenced, either by the person making the accusations, or (in that unusual context) the accused, the calculus above changes.  Depending on who prepared the report, it may or may not be protected by the attorney-client privilege or the work-product doctrine.  If a lawyer did not prepare the report, or the report was not prepared at the direction of counsel, in all likelihood you are going to have to produce the report during the discovery phase of the lawsuit.  That does not mean, however, that it must be provided to the accused or to the witnesses – just the person who has filed the lawsuit.  Moreover, you should make an effort to protect further dissemination of the report through the use of an appropriate Protective Order.   
Even if a lawyer prepared your report, or directed the preparation of the report, if you intend to rely on the report and the analysis set forth therein to justify your decisions or to demonstrate that the company provided procedural due process to the accused, you may find that the report must be disclosed in response to discovery requests.  That potential illustrates the importance of considering a number of related issues in advance: a) who should prepare the report; b) what should the scope of the report be; c) to whom will the report be provided within the company; d) will the company rely on the report for the decision regarding the accused; and e) will the company look at external factors, beyond the scope of the report, as well.  These and other factors will be addressed in future Blog questions. 

[I hope you find the analysis above to be of use.  If you are interested in obtaining more information on workplace investigations, I recently wrote an article on this topic for Business Law Today (April 2008).  To obtain a copy of that article, you can simply access our firm’s website, www.Dorsey.com, and click on Dorsey Publications.  Under that tab, you will see a listing for “Attorney Articles.”  Scroll down to the article on Workplace Investigations and you will be able to download the article.  Alternatively, just send me an email requesting the article and I will forward it to you.  Regards, Roy] 

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Employee Cooperation in Investigations, Quirky Question # 9

Posted by on November 19, 2007 · Leave a Comment 

Quirky Question # 9:

Two of our employees are involved in a romantic relationship.  We recently learned that our male employee assaulted our female employee at her apartment.  He was charged with domestic assault based on her report and convicted.

We then tried to elicit information from our female employee about whether she felt her paramour posed a risk of violence to her or any of her co-workers.  She refused to answer our questions, claiming they invaded her privacy.  We do have a policy that requires cooperation with our investigations.  What options do we have?  Can we fire her for refusing to assist in our investigation?

Roy’s Analysis:

Your questions implicate difficult issues that highlight the tension between the competing interests of employers to provide a safe, violence-free work environment, and employees’ legitimate privacy interests.  Here, the interests of the employer predominate.

Every employer has a duty to attempt to provide a safe work environment.  While all risks cannot be anticipated, known risks cannot be ignored.

Consider, for example, the potential consequences of a “do-nothing” approach.  If the male employee escalated the violence towards his significant other, and committed a violent crime against her in the workplace (or anyone else who intervened, or who just happened to be an innocent bystander), it would be extremely difficult to justify the company’s lackadaisical response, particularly if the injuries suffered by your female employee or your other workers were serious.  Defending a lawsuit by your other injured employees (or their families in the event of a death), would be difficult, at best.

Given this potential, it is imperative that you attempt to gather additional information from the employee involved to enable the company to assess the risk and, if necessary, take appropriate precautions.  Even in the absence of a company policy requiring cooperation in company investigations, your firm would be justified in exploring these issues thoroughly with the female employee.  Since your company has a specific policy requiring cooperation, your firm’s position is even stronger.

If your employee refuses to cooperate in the investigation, you could impose any discipline you deem appropriate, including discharge.  I would not advocate jumping to that ultimate sanction.  Rather, I would explain to her that a failure to cooperate jeopardizes her continued employment.  I also would explain why the company needs to explore these issues, both from a practical and legal perspective.  If she nevertheless refuses to reveal any of the information that you consider necessary to evaluate the situation accurately, you could impose a progressive disciplinary approach, starting with suspension with pay, then suspension without pay, and finally termination.  But, again, you need not pursue a progressive disciplinary approach if you have concluded that discharge is the appropriate response to this situation.

The fact pattern you describe is very similar to a case decided by the United States District Court for the Northern District of Ohio in late 2005, Rowe v. Guardian Automotive Products, Inc., 2005 WL 3299766 (N.D. Ohio).  In Rowe, like the situation you describe, two employees were living together.  The male employee assaulted the female employee, breaking three of her ribs.  The male employee was charged with assault and convicted.  This information came to the company’s attention when the male employee later received a 30-day jail sentence for driving without a license.  When the company explored the situation, it discovered the male employee had a lengthy criminal history involving alcohol abuse, threats to kill his ex-wife, physical acts of violence against his ex-wife, and the assault on Rowe.  Based on this history of violence, the company terminated the male employee.  The company also tried to obtain additional information directly from Rowe to ascertain whether the now-ex-employee posed a risk of harm to her, her co-workers, or her supervisor.

On three separate occasions, the company tried to elicit this information from Rowe and each time she refused to cooperate, arguing that the inquiries invaded her privacy.  She pointed out that she was on leave when the assault occurred and that it had not occurred at work.  Despite those facts, the company terminated her employment based on her refusal to cooperate with the company’s legitimate investigation.  The federal District Court upheld this decision, dismissing the plaintiff’s invasion of privacy case on summary judgment.

The bottom line is that employers have an obligation to attempt to create a safe, violence-free working environment.  If an employee refuses to support that effort by refusing to participate in an investigation bearing upon this issue, the employer is justified in discharging that employee.

Readers’ Responses:

I think it’s worth highlighting that in both the question and the cited case, the Company had a policy in place that required employees to participate in the investigatory process. Therefore, the employee should understand she is being approached consistent with the normal practices of the Company. I also believe it behooves the Company to articulate to the female employee one or more reasons to pursue the investigation that may make her feel uncomfortable. For example, if there is enough evidence (as appears to be the case in both instances) to terminate the male employee without the female’s input, she might naturally feel the investigation (and her part in it) is unnecessary. Therefore, having someone from the Company articulate the Company’s concerns about retaliatory acts by the male or other potential targets at the Company might enable the female employee to understand the Company is not merely voyeuristically interested in what she may perceive as a personal matter. Finally, in the cited case, the female was given numerous opportunities to comply with the Company’s investigation. This appears to be a prudent course of action where the female employee may be initially reluctant to speak — whether it be to “protect” the male or because she does not want to “relive” a traumatic experience.

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