USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
vide reasonable breaks to the interviewee during the course of the conversation, but should also note the time the interview stopped, the reason for the stop, and when the interview resumed. If the interviewee seeks to end the interview com - pletely, the interviewer should avoid pressuring the individual to continue but offer to reschedule or revisit the conversation later. The investigator should also assess whether the interviewee’s request to cease the interview stems from emotional distress, a need for a support person, or a disability-related accommoda - tion, in which case pausing the interview and offering support resources (such as EAP or HR involvement) may be appropriate. Regardless of the interviewee’s role in the investigation, it is good practice to reiterate the employer’s expectations regarding confidentiality and the prohibition on retaliation before ending the session. If the interviewee takes excessive breaks and the interviewer has concerns about the confidentiality or integrity of the investigation as a result, or if the inter - viewee attempts to stop an interview altogether, the interviewer may take the steps outlined in 3.2 Par- ticipation . 3.9 Minutes There are no specific requirements for note-taking during an interview, but adequate documentation is crucial to an effective investigation. Employers should ensure that interviewers are capable of taking thor - ough and detailed notes during interviews and can consider having interviews transcribed or, as dis - cussed below, recorded. There is typically no require - ment that interviewees be allowed to review and/or sign the minutes or notes. Various laws and collective bargaining agreements, however, may dictate specific procedures. While an external party is not required to take minutes, any external party investigating on behalf of a company should take notes in a manner that effectively documents the interview and could help the external party provide a thorough account - ing of the interview to the company if needed. 3.10 Recording Interviews can typically be recorded, but various state and local laws may place restrictions on interviewers.
For example, some states require all parties to consent to recordings of interviews and conversations, while others allow employers to record without notification. Employers should also consider any ethical implica - tions of recording interviews and weigh the costs and benefits of recording interviews if an interviewee is uncomfortable. If conducting interviews remotely, employers should utilise software that makes clear to all participants when recording is in progress. Inter - viewers should also notify interviewees at the start if they are being recorded. 3.11 Other Fact-Finding Employers can and should engage in substantial additional fact-finding besides interviews. Typically, all communications on company property are the property of the employer. Employers should also have written workplace policies detailing the lack of privacy in communications on workplace devices. Employers can therefore obtain relevant communications such as email communications and other messages on com - pany devices or software. Employers can also obtain other relevant documents that are created in the con - text of an employee’s employment or contained on company devices or software. Employers can typically search their own workplaces and computer systems. While a variety of state and federal personal privacy laws may address the rights of employees, searches of an employer’s workspace and devices are generally not protected by such laws as these spaces and devices are considered property of the employer. Additionally, if employees use personal devices to store employment-related data, employers can usually obtain that data. In that instance, however, employers should take caution to not collect an employee’s personal data. Employers should develop written policies to notify employees regarding their privacy rights, or lack thereof, as it relates to company property. 4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter Employers are generally required to assess threats to physical safety, protect employees’ physical safety to
426 CHAMBERS.COM
Powered by FlippingBook