USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
3.4 Interviewers While there are no specific rules regarding the demo - graphics of interviewers, they should be objective and neutral to ensure that a witness is comfortable and will disclose information. Investigators should therefore not have any particular involvement or interest in the matter being investigated or in its outcome. Interview - ers should also be trained in conducting interviews, documenting interviews and collecting evidence. Furthermore, particularly in sensitive investigations involving sexual harassment or other serious claims, employers should consider utilising investigators trained in trauma-informed interviewing techniques. The number of interviewers will likely depend on the scope of the investigation and the number of witness - es. More witnesses may require more investigators. In an effort to maintain confidentiality and preserve information collected, employers should attempt to limit the number of individuals involved in an inves- tigation to the greatest extent possible. Employers should also consider the comfort of a witness when selecting interviewers. 3.5 Neutral Party Workplace investigators should generally consider whether a third party’s presence during an interview would assist in creating an environment to foster the sharing of information from witnesses. While typically investigators will want to limit the number of individu - als present to preserve as much confidentiality as possible, there are instances in which third parties should or must be present. For example, to assist with communication and allowing a witness to be more comfortable answering questions, investigators may want to have an interpreter to allow a witness to speak in their native language. Additionally, support persons under the ADA may be required for individuals with disabilities. Circumstances may also vary state to state, with various labour and employment laws and potential labour union collective bargaining agree - ments requiring the presence of certain third parties. Employers should therefore be cognisant of relevant local, state and federal laws, and balance the need for confidentiality with the need of a third party.
ments, continuing to gather available evidence and interviewing additional witnesses. When a Witness Refuses to Participate If a witness refuses to participate in an interview, the employer may document the refusal, proceed based on available information, consider the witness’s role and credibility, and in some instances even disci - pline them if the witness’s co-operation is required by employer policy. Some employers require co- operation in investigations, audits and other compli - ance functions. Employers should consider having clear written policies documenting the obligations of employees to participate in such processes. There are exceptions, however, that employers should be aware of. If the witness is exercising rights pursu - ant to the NLRA (eg, refusing to answer questions about protected concerted activity), then discipline may be unlawful. Certain employees may also have certain rights under a variety of other laws, such as the need for an alternative format or communication due to a disability pursuant to the ADA, or the right to have a union representative present pursuant to collective bargaining units. Employers should therefore assess each situation to determine whether there is a risk of liability for the employer when considering disciplining an employee for failing to co-operate. 3.3 Format There are typically no requirements that interviews be carried out in a certain manner, but investigators should consider multiple factors when assessing the most appropriate method. While there is a fairly com - mon belief that physical demeanour can be used to assess a witness’s credibility, it has been found to be inherently unreliable. Investigators should therefore not necessarily rely on an in-person or video-based interview for that purpose. However, in-person and video-based interviews can be helpful to ensure that interviews are confidential and to help build rapport with the interviewee. Telephonic interviews can be appropriate as well, depending on the circumstances. Sometimes it makes sense to prioritise conducting an interview quickly or at the convenience of the wit - ness in order to obtain information that can assist in corroboration.
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