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Employees: Do you Have a Workplace Investigation Interview? Avoid Making These Three Common Mistakes.

  • By: Sarah Mugmon
    Published: April 4, 2022
Workplace Investigation Interview

Out of the blue, your employer asks you to submit to a workplace investigation interview, which might not give you enough time to contact a workplace investigation lawyer. This can be a confusing and stressful situation. Knowing what to do can help the process go much smoother, and ideally, protect your job and your reputation. Below are steps to take when you are involved in a workplace investigation.

Steps to Take When You’re Being Investigated

If you are being investigated, here are some steps you can take to protect yourself.

  1. Collect Appropriate Information:
    When you are pulled into a workplace investigation, the focus of the internal investigation is sometimes unclear. No matter what, the investigation is trying to uncover what happened, so it’s important to reveal the true facts. Are there emails that verify what happened? Perhaps, other pieces of evidence like text messages, documents, or phone logs? Or a witness that saw what occurred? All of these pieces of information are important in helping the company perform a proper investigation.
  2. Avoid Any Criminal Activities:
    Avoid improper activities at all costs, like destruction of evidence, witness intimidation, threats, violence, or harassment. These types of behaviors will just make things worse and ensure disciplinary action. You will face a one-way ticket out of a job or worse; criminal charges being filed against you.
  3. Do Not Sign Any Documents:
    Once a client comes to us with a signed document, it’s difficult, if not impossible, to “unring that bell.” Before you sign anything, make sure you consult with an experienced employment lawyer, so you know what you are signing, and what the consequences are of the agreement.

Can an employee refuse to cooperate with an investigation?

Refusing to cooperate with a workplace investigation could cost you your job. A positive employer/employee relationship is based on trust, open communication, and following the directives of your employer.

If you refuse to cooperate during the investigation process, you could be subject to termination or disciplinary action.

Can I take someone with me?

You can request to bring a trusted coworker with you, but the request may not be granted, depending on your situation. If you are in a non-union workplace, the employer may not grant your request, but you could still ask.

Usually, attorneys are not allowed in investigatory meetings in the workplace, unless specific company policy grants them the right to be there, which most workplaces will not have.

If you are a union member, you’ll want to check with your union to see if you can have a union representative accompany you. If the meeting could lead to disciplinary measures, and you are a union member protected by the National Labor Relations Act, you are entitled to have a union representative present in the meeting.

The right to have your union rep in an investigatory meeting is commonly referred to as your Weingarten rights and comes from Section 7 of the National Labor Relations Act.

If you are a federal government employee, you have the right to refuse to answer questions that could lead to incrimination. These rights are called Garrity Rights, based on the U.S. Supreme Court case, United States v. Garrity (U.S. 1967).

Can Employees Record the Meeting?

Depending on state law and your employer’s policy, you might be able to record the meeting. State laws vary on recording; Virginia allows one-party consent to recording which means that if you are a party to the conversation, you can record it without the consent of the other participants to the conversation.

Washington, DC is also a one-party consent state for recording. Maryland, however, requires all parties to the conversation to consent.

In addition to state wiretapping and recording laws, it’s important to consider your workplace rules. Some workplaces will have policies on recording, or perhaps you work in a secure workplace that is subject to security clearance rules that go beyond what you would see in a typical workplace.

However, an employer’s policy prohibiting covert recording will be counterbalanced with certain employee rights, such as the right to a safe workplace under occupational safety and health administration (OSHA) laws, and also the right to engage in protected concerted activity under Section 7 of the National Labor Relations Act, which allows employees to discuss their working conditions with one another. Section 7 rights apply even if you are not a member of a labor union, so long as you are not a government employee, and are not a supervisor.

Generally, many employees choose to record investigatory meetings, and so do employers. Before choosing to record a meeting, it is wise to consult with legal counsel to ensure you aren’t exposing yourself to possible legal liability, or putting your job at risk.

What Should You Not Say in an HR Investigation?

There are many things you can do to prepare for the investigation process, but also common mistakes to avoid. Here are three key mistakes employees often make:

  1. Discussing the Investigation with Other Colleagues Before the Interview
  2. Forgetting You Are There to Answer Questions (And Not Ask Them)
  3. Not Providing Responsive, Concise Answers to the Investigator’s Questions

By avoiding these three common mistakes, you may avoid potential liability or unfavorable investigative findings.

  1. Do Not Discuss the Investigation
    Do not discuss any aspect of the investigation including the Interview, or the underlying allegations with other employees. Regardless of whether you know the exact accusations and details which triggered the internal investigation or not, do not talk about it with other employees or interviewees.

    By discussing the investigation with other employees, you risk learning information that you would otherwise have not known and may not want to divulge to the investigator.

    While it is natural to want to prepare for the interview by coordinating with similarly situated people, you should go into the interview with only your own facts and first-hand information.

  2. Remember Your Role in an Interview
    Your role in the interview is to answer questions honestly. The investigator’s job is to ask the questions. Resist the urge to want to share your side of the story, because it will likely not be relevant to what the interviewer is trying to uncover. It may feel odd to just sit there and answer questions with minimal information, but it’s in your best interest to respect your role as interviewee and let the interviewer do their thing.
  3. Answer Questions Concisely, Honestly, and Professionally
    You should answer questions directly, honestly, and professionally. Don’t speculate about what happened, or guess. If you don’t know the answer to a question, say you don’t know. But only answer with “I don’t know” or “I don’t remember” if it’s true.

    Don’t say you don’t recall as a tactic to avoid answering a question. Interviewers assess your credibility, and often can tell if you are avoiding something or lying.

    Listen carefully to the questions, answering “yes” or “no” if it’s a yes-or-no question. Provide short, simple responses to questions that call for more than just a yes-or-no response. If you do not understand the question, ask for clarification, or ask for the question to be repeated.

If You Are Facing a Workplace Investigation, Contact Lipp Law

Learning that you are going to be questioned by a workplace investigator understandably can make you worried and anxious. By preparing yourself for the investigative process, you will feel calmer and more empowered.

If you need advice specific to your situation, consulting with an employment lawyer can better prepare you for a workplace investigation interview. If you need assistance preparing for a workplace investigation interview, contact Lipp Law today.

Kathryn Megan Lipp

Katie dedicates her practice to employment separation guidance.
Based on her successful employment litigation practice...Read More