USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
3.4 Interviewers It is often advisable to have two investigators attend each interview. By having a second person at the interview, the interviewer can maintain eye contact with the witness and move more quickly through the questioning. A familiar representative from the legal department or HR may make the interviewee feel more comfortable. Also, after the interview, the interviewer and the scribe can share information and perspectives concerning the interviewee. There are no hard-and-fast rules concerning who should serve as an interviewer. Obviously, the accused and employees who are viewed as closely aligned with the accused should not conduct the interview or attend it. In selecting the interviewer, employers should consider two key factors. First, will the inter - viewer appear objective and make the witness feel comfortable providing information? Second, will the interviewer present well if the employer needs to offer evidence concerning the investigation or investigation findings at trial or to a government investigator? Increasingly, complainants, witnesses and the accused are requesting or demanding that their coun - sel or a representative be present during investigative interviews. Under Section 7 of the NLRA, employees have the right, upon request, to have a representative present during interviews that the employee reason - ably believes could lead to discipline. Employers are not required to inform employees that they have the right to a representative during an investigatory inter - view. However, once an employee has requested a representative, the employer may violate the NLRA if they proceed with the interview. 3.7 Information It is imperative that, at the start of each interview by or at the direction of the employer’s counsel, counsel provides Upjohn notifications to the witness. These notifications alert the witness that: • the interviewer represents the employer or the board (and not the individual witness); and 3.5 Neutral Party See 3.4 Interviewers . 3.6 Support Person and/or Lawyer
• any privileges belong to the employer or the board, which may choose to waive the privilege and dis - close information provided during the interview to others. The interviewer should be prepared to answer ques - tions from witnesses concerning this notification, including whether a witness needs his or her own lawyer and how the information shared with the inter- viewer may be used by the employer. 3.8 Stopping the Interview If the witness stops the interview, the interviewer should ask the witness why they are stopping the interview and address any concerns expressed by the witness. After the interview, the interviewer or an employee on the investigation team should send a communication to the witness confirming that he or she stopped the interview and stating the justifi - cation provided by the witness for ending the inter - view. If the witness has raised a legitimate concern, such as a request for a representative, the employer should explain how the employer will try to resolve the employee’s concerns. 3.9 Minutes It is effective to have a scribe present during the inter - view to take notes so that the investigator can develop a rapport with the witness and maintain eye contact. In most cases, the interviewer or note-taker should reduce the notes of the interview into a privileged summary shortly after the interview is complete. Cost and time considerations will often determine the type of summary prepared by the interview team. In many cases, it will be helpful to prepare a formal interview memorandum summarising the interview, but a simpler bullet point summary may be appropri - ate. The summary should identify who attended the interview, the instructions given to the witness, the witness’s responses to questions, and any documents shown to the witness and witnesses identified during the interview. Investigators have the option of provid - ing the summary of the interview to the witnesses and asking him or her to confirm that the summary is accu - rate and, if there any inaccuracies, to identify them. If the witness signs and/or corrects the summary, it will
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