USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
provide persuasive evidence if the witnesses tries to change his or her story. 3.10 Recording Before recording an interview, the interviewer should notify the interviewee that the interview is being recorded and, in most situations, ask for their writ - ten consent. Only 11 states require both parties to consent to a recording. However, to increase the likeli - hood that the recording will be admissible and viewed favourably by the judge or arbitrator, it is advisable to obtain the written consent of the interviewee. If an investigator wants to record an interview, he or she should consider whether recording the interview will negatively impact the interviewer’s rapport with the witnesses or intimidate the witness. Some of the impact of recording the interview may be mitigated by explaining to the witnesses that the interview is only being recorded to ensure that the interviewer takes accurate notes and/or by offering to provide a copy of the audio recording to the witness. Many employers prohibit recording by employees in the workplace. And, as noted in 2.3 Confidentiality Agreements and NDAs , some employers require wit - nesses to sign acknowledgements during investiga - tions that include prohibitions on recording investi - gative interviews. Although, particularly with remote interviews, it is impossible to determine whether a wit - ness is recording the interview, interviews can reduce the risk by conducting the interviews in person, requir - ing the witnesses to leave their phone in a separate room, and sign a certification that the witness is not and will not record the interview. As with all restric - tions imposed on witnesses, the employer will need to weigh the impact of taking these steps against the quality of information they will receive through the interview. 3.11 Other Fact-Finding When the complaint is received, the investigation team should determine the sources of proof to which they will need access for the investigation. The team should consider all of the categories of evidence that may be relevant to resolving disputed issues in the investigation, preserve them and review them for relevant evidence. The employer’s IT department
should be involved in suspending any regular docu - ment deletion programmes and creating backups of relevant databases and systems and, where appropri - ate, individual devices. The company should carefully consider when and how to obtain forensic images of employees’ company-issued and, where appropriate, personal devices, which may potentially contain criti - cal information. The evidence relevant to each individual investigation will differ significantly. As part of the pre-investigation described in 1.7 Other Cases , the investigation team should discuss the different sources of information available through the company and through witness - es. For each category, the team should identify the “owners” of the evidence at the company and how it can be preserved and reviewed. During witness interviews, the interviewer should ask witnesses how the investigators can confirm the information the wit - ness is providing or how they can obtain information concerning the incident. Often, witnesses will volun - tarily offer evidence from their personal cell phones, including text messages, emails, audio recordings and photographs that can, with the witness’s permission, be preserved for the investigation. Employers should undertake surveillance of employ - ees with caution. Several states have adopted off- duty discrimination statutes that prohibit employers from observing employees during non-working hours. These statutes generally prevent employers from tak - ing adverse job actions against employees and appli - cants as a result of lawful activities off the employer’s premises during non-working hours. 4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter Employers have a duty to protect employees from known hazards in the workplace. If they fail to noti - fy employees of hazards and take steps to protect employees from them, they may be held liable under the doctrine of respondeat superior or for negligent supervision.
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