USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
3.6 Support Person and/or Lawyer While there is generally no automatic right to a sup - port person or lawyer being present in HR internal investigation interviews, this could vary depending upon employer policy, the terms of an employment agreement or collective bargaining agreement, spe - cific applicable laws, and potential disability needs. Employees may generally choose to retain counsel, particularly if they are the subject of an investigation or could be subject to liability. 3.7 Information Unless a contract or agreement provides otherwise, there is no information that must be given to an inter - viewee at the outset or at the conclusion of an inter - view. However, best practices dictate that certain key information should be communicated to interviewees. At the Start of an Interview and Confidentiality Obligations An interviewer should explain the purpose of the inter - view, namely that it is part of an internal investigation into a workplace concern, such as alleged misconduct or a policy violation. Further, interviewers should inform employees that the interview is confidential and that the investiga - tors will do their best to maintain that confidential - ity. However, confidentiality cannot be uniformly and completely guaranteed, and it is important that an interviewee understand that there may be situations in which shared information must be disclosed to the employer or even to other authorities (such as law enforcement), and that such disclosure could reveal the interviewee’s identity. Moreover, investigators should ask whether the inter - viewee agrees to maintain confidentiality during the investigation for the purposes of preserving the integ - rity and objectivity of the investigation and to minimise potential risks to workplace morale (from gossiping or creating an atmosphere of fear, for instance). Investi - gators must be careful about requiring that employees maintain confidentiality, as doing so could run afoul of certain employee rights, such as those contained in the NLRA’s protections for “concerted activity”.
Investigations and Attorney–Client Privilege If an investigation is led by the organisation’s legal counsel or is being conducted at counsel’s direction, investigators should deliver an “Upjohn admonition”, which makes clear to an employee that the attor - ney represents the employer and not the employee. The US Supreme Court case Upjohn Co. v United States , 449 U.S. 383 (1981) held that communica - tions between the attorney for a company and the company’s employees can be protected by attorney– client privilege, but that the privilege belongs to the corporation and not to the individual employee. The admonition should therefore ensure the following: • that employees understand that the investigating attorney represents the company, not the individual employee; • that any attorney–client privilege arising from the conversation belongs to the company; and • that the company has the right to waive this privi - lege and disclose information shared during the interview to third parties. Interviewers should make sure to clearly document that they provided this warning to each interviewee. At the Conclusion of an Interview At the end of the interview, the interviewer should: • offer the interviewee an opportunity to share any additional information, to identify any other poten - tial witnesses or to submit any relevant documents; • advise the interviewee that they may be contacted for follow-up if necessary; • inform the interviewee that retaliation for participat - ing in the investigation is strictly prohibited and encourage the interviewee to report any concerns of retaliatory treatment if they arise; and • thank the interviewee for their participation and invite them to share any other relevant information regarding the subject matter that they may remem - ber or receive. 3.8 Stopping the Interview If an interviewee requests to stop the interview, the interview should be stopped. The investigator should determine whether the employee is seeking a break or to end the interview. The interviewer should pro -
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