PUERTO RICO Law and Practice Contributed by: Jorge C Pizarro-García, José R González-Nogueras, Karla Rivera-Rubio and Lloyd Isgut-Rivera, Pizarro & González
3.5 Neutral Party Neutral third parties are occasionally present during interviews to support credibility and ensure procedur - al fairness, although this is not a common practice and is typically reserved for more sensitive or high- risk investigations. Their use tends to arise in cases involving senior executives or sensitive allegations, or where the parties present conflicting accounts and the employer anticipates potential external scrutiny by a court, administrative agency or union representative. The neutral party may be an HR professional, an in- house compliance officer or an external investigator. 3.6 Support Person and/or Lawyer Employees generally do not have a legal right to be accompanied by a support person or a lawyer dur - ing an internal HR interview unless the employer’s policy permits it. However, unionised employees may request the presence of a union representative under their Weingarten rights when they reasonably believe the interview could result in discipline, and once such a request is made, the employer must either allow the representative to be present, let the employee decide to proceed without one, or end the interview. 3.7 Information Interviewers typically begin by explaining the purpose of the interview, the employee’s general duty to co- operate, expectations of honesty and confidentiality, and the protections against retaliation. For non-union employees, these disclosures reflect best practices. For unionised employees, however, additional safe - guards may apply. Employers must consider whether the interview could implicate union rights and, if so, follow the principles established by the National Labor Relations Board. Before beginning any questioning, employers should make sure to: • communicate the purpose of the questioning; • assure the employee that no reprisals will result; • confirm voluntary participation; • conduct the interview in an environment free of hostility towards union activity; • avoid coercive questioning; • limit questions to matters necessary to the investi - gation; • refrain from probing into the employee’s subjective state of mind; and
events. Witnesses may include co-workers, supervi - sors, other affected employees, or individuals iden - tified during the investigative process, and in some circumstances external parties when they have direct knowledge of the events. Although there is no fixed number of interviews, case law suggests speaking with all individuals who possess first-hand information and avoiding interviews of people with no meaningful knowledge. 3.2 Participation Employers usually remind employees that co-oper - ation during investigations is a condition of employ - ment and part of their responsibility under company policy, and many employers expressly list lack of par - ticipation as conduct subject to disciplinary action, including termination. When an interviewee refuses to participate or only co-operates partially, employers typically document the refusal and determine whether discipline is appropriate. 3.3 Format Remote interviews are permitted, and employers may use them when logistics or urgency require flexibility, such as when employees are off-site, when teams work across multiple locations, when the interviewee is on leave or when the interviewee is not currently employed by the organisation. 3.4 Interviewers Investigations are typically conducted by one primary interviewer, who is sometimes accompanied by a sec - ond person who serves as a note-taker or observer. There are no legal requirements regarding interview - ers, but best practice is to select individuals who are objective, properly trained and not in the direct report - ing line of the parties involved. Employers usually choose interviewers who understand the purpose and limits of the investigation, are familiar with company policies and operations, possess strong questioning skills and can project credibility if later called as wit - nesses. Employers may also match the interviewer’s gender with the interviewee in sensitive cases, such as sexual harassment matters, to increase interviewee comfort and reduce perceived bias.
312 CHAMBERS.COM
Powered by FlippingBook