USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
issued. With a quorum on the board and new general counsel (who was also sworn in on 7 January 2026), the NLRB will be poised to address this issue. 2.4 Preliminary Investigation and Scope- Setting See 1.7 Other Cases .
For each such refusal or request, the employer needs to consider company policy and prior practices, and the law of the jurisdiction in which the employee works. However, it is important for the investigator to consider why the witness is refusing to co-oper - ate, asking him or her about the justification for their refusal. If they legitimately fear retaliation, the inves - tigator and employer should explore alternatives that will make the employee feel comfortable participating in the investigation. If the complainant refuses to participate in an inter - view or to provide relevant evidence, a court may find that he or she failed to act reasonably for the first prong of the affirmative defence in harassment situa - tions. Also, an investigator legitimately may rely on the complainant’s refusal to participate in the investigation in making fact determinations. In these situations, it is important for the employer to: • document the refusal or demand (eg, the refusal to appear for interview or to provide evidence); • offer to provide the relief requested by the employ - ee or a reasonable alternative, if required by com - pany policy or applicable law; • document the employer’s offer and the witness’s response; and • if the witness continues to refuse to co-operate, clearly notify the employee of the consequences of their continued refusal to co-operate. 3.3 Format The investigators should determine the methods they will use to interview the complainant, other relevant witnesses and the accused. Virtual investigation meth - ods are an important part of an investigators’ toolkit and offer significant advantages for clients, including allowing investigators to conduct interviews across time zones and work environments and giving clients more control over the format and cadence of an inves - tigation. However, for investigations that involve seri - ous issues, like criminal misconduct or misconduct that must be reported to the authorities, it is important for the investigator to meet with the key witnesses in person so that the investigator can judge the wit - nesses’ credibility.
3. Interviews and Fact-Finding 3.1 Interviewees
Typically, the investigator will first interview the com - plainant to understand his or her concerns, answer any questions he or she has and assess whether inter - im relief is necessary. As the complainant describes the incidents and events, the investigator should ask the complainant for the names of all witnesses and evidence that supports his or her claims. After the initial interview, the investigator should meet with the investigation team to discuss the witnesses identified by the complainant and other witnesses who may have information relating to the events at issue. Typically, interviewing the accused in the next step in the investigation. As with the complainant, the inves - tigator should ask the accused to identify witnesses and evidence that support his or her position. Then, the investigator typically interviews the witnesses who are most critical to the events at issue. There is no magic formula for conducting internal investigations. An effective investigation can involve two to over 200 witnesses. In any investigation, the investigator and the investigative team need to bal - ance the confidentiality interests of the company and the complainant, accused and witnesses with the need for the statements and evidence necessary to make accurate factual determinations and, if neces - sary, determine effective remedial actions. 3.2 Participation With ChatGPT and other AI resources at their finger - tips, witnesses are increasingly asserting what they view as their “rights” during internal investigations. Increasingly, witnesses are refusing to participate in interviews, answer questions and identify “sources”, or provide access to evidence.
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