USA – PENNSYLVANIA Trends and Developments Contributed by: Robert Ufberg, Matthew Boyd and John Ellis, Ufberg & Associates, LLP
comparison to others, the investigator may determine to interview less central witnesses before meeting with key witnesses, or even the subject of the investigation. When determined necessary by the investigator to pin down or clarify key facts or information adduced later in the investigatory process, or witness credibility, the investigator should have the latitude – temporally, as well as financially – to conduct follow-up interviews as the investigator determines necessary. Pre-interview considerations The investigator should inform the parties, from the outset, that the process will be conducted as promptly as possible, thoroughly and impartially. If the inves - tigator determines it is warranted, or necessary, the investigator should consider issuing communications that help build trust in the process, such as affirm - ing the commitment to develop a full record, to hear from all witnesses proffered, or to take such corrective actions as are warranted by the ultimate findings of fact and legal or contractual conclusions. The complainant and others should be assured that the investigation will be handled with discretion, taking all reasonable steps to minimise exposure of sensitive information. However, a promise of absolute confi - dentiality is most often unachievable and unrealistic. While workplace investigations are intended to be pri - vate, certain details must be shared in some fashion in order to conduct a comprehensive and fair inquiry. The investigator can and should communicate that private or confidential information will be disclosed strictly on a need-to-know basis, with those who are essential to the investigation. Taking such a direct, balanced and transparent approach – making every effort to burrow for the truth while respecting the pri - vacy of those involved – helps support and build con - fidence in the integrity of the process. Interview techniques Begin with an introductory statement: thank the indi - vidual for meeting, explain the purpose of the meeting, and clarify the need-to-know basis for confidentiality. Interviews should, with the rarest of exceptions (not further discussed or developed here), be conducted individually, not only to convey the appropriate respect to be accorded each witness, but also to assure them
– and others – of the integrity of the investigatory pro - cess. Investigators should assure their witnesses and interviewees that they will make appropriate efforts to protect the privacy and the confidentiality of the facts and information they disclose, but must never promise absolute confidentiality for several reasons: (i) (most) investigation results must inevitably be shared with certain members of management – and, where applicable, a union – or, at times, a govern - ment agency, eg, where there is a parallel criminal investigation; (ii) court rules in subsequent litigation relating to the same issue(s) may require disclosure of all facts, including otherwise-confidential witness interviews adduced during internal investigations; and (iii) the organisation may need to disclose investigation results (or a summary of such results) for regulatory or other business purposes. Investigators must always remain objective (even with witnesses or interviewees the investigator may find repugnant), be good listeners and take diligent, comprehensive notes. When conducting interviews, more open-ended questions should be utilised, when possible, to ensure that the majority of the conver - sation is driven by the witness, following the 80:20 principle (the witness should be speaking during 80% of the interview; the investigator during only 20% of the interview). Specific questions, subjects, direction and/or areas of questioning will, of course, vary widely depending on any number of factors, most prominently the sub - jects being investigated and the witnesses (specific individuals, sometimes the type) being questioned. An investigator should generally go into each witness interview with a control list of thoughtfully prepared questions, subjects and even objectives – but their existence should not control the flow of the interview, or prevent the investigator from asking follow-up questions or from exploring new, previously unknown facts or events. Effective interviewing relies on more than just ques - tions asked; it also depends on how well the investiga - tor listens and manages the flow of conversation. By using silence strategically, the interviewer can encour - age a witness to share more details. A brief moment of quiet sometimes prompts the witness to continue
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