Before You Tell Them Not to Discuss The Investigation

August 14, 2012

…be aware of two very recent and very important pieces of information.  In one case, Banner Health Care 358 NLRB No. 93, the National Labor Relations Board found that blank “gag rules” requiring all participants in an investigation to refrain from discussing the investigation while it was ongoing, with the rationale of protecting the integrity of the investigation was a violation of Rule 7, which allows employees to discuss the “terms and conditions of their employment.”    The NLRB indicated that an employer has to have a legitimate business interest that outweighs that rule, including the need to protect a specific witness, danger of evidence being destroyed, testimony was being fabricated or there was a need to prevent a cover up.  A blanket practice to require all employees to refrain from discussing the matter was deemed too broad to meet these criterion.

In a second matter, the the EEOC’s Buffalo, NY, office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:

You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial”

While this is only one office of the EEOC, and we will see challenges to the NLRB decision, employers should nevertheless promptly make changes in their checklists or other means of providing notices to witnesses.

1)  Ask, don’t order witnesses and parties to refrain from discussing the matter, and explain that your purpose is to be certain the investigation is far and unspoiled by gossip, false impressions ,or influences.

2) Do as I have, and clarify to the witnesses and parties that they do have a right to discuss the terms and conditions of their employment with others, however they should not discuss the questions you have asked them or their answers.

3)  Analyze whether there is a reasonable risk of witness tampering, retaliation or harm to a witness, evidence that may be destroyed or collusion with others to falsify testimony.  If, for instance, a respondent has allegedly threatened a complainant with consequences for reporting, it seems the NLRB would find that an order to maintain confidentiality outweighed the rights under Rule 7.

This is not new.  I wrote about the tension between the right to concerted activity and investigative confidentiality in my book, and found myself posting it recently in a Linked In forum.   Make sure you have a sound basis for requesting someone to refrain from discussing the interview, clarify the purpose, and never provide a blanket gag order.

Unanswered Questions from Upper Midwest

May 31, 2007

What is a presenter to do? We want to give people great information that is practical, nuanced and detailed, yet find ourselves trying to give a full semester of information in an hour. The casualties? The questions. If you are reading this, you may be one of the seminar participants who submitted a question at the Upper Midwest Employment Law Institute and who did not get an answer. As promised, I am featuring those questions and my answers here for the benefit of all. Before I do that, though, thank you for being such attentive and interested learners!

Q: When conducting an interview, it is difficult to listen and take notes at the same time. Any suggestion on how to document the conversation? The employee usually clams up when they see you are taking notes.

A: In my session on “The Anatomy of an Investigative Interview,” I strongly advocated for a five-stage interview process, the second stage of which was what I refer to as an “Uninterrupted initial narrative.” This is an opportunity for the interviewee to say what they have to say, or to tell their story, and for the investigator to listen carefully. During this first stage, I recommend only the most limited notetaking so that the investigator can really listen to the interviewee and also so that when the interviewer “takes over” the process that he or she can be prepared for what is going to be said and also can take notes in a manner that is more organized. This is very helpful in managing notetaking, as you are only taking notes after they have already told you things, eliminating the need to “clam up.”

It’s also worth considering taking your notes on a PC if you are a good typist. Most of us in this day and age can type without looking , and much faster than we hand-write.

Finally, it’s important that you communicate that your purpose in taking notes is to be as ACCURATE as possible, not to somehow use it against a witness.

Q:Do you recommend that the interviewee be asked to sign or write a written statement following the interview? Why or why not?

I am not a huge fan of written statements. I think that they are of limited use, as people can change their minds about things whether or not they write them down, and in fact, writing things down may prevent someone from feeling able to bring additional recollections or changed information forwards, as though we have “locked them in” to a version of events. I also think written statements make things more officious than they need to be — the fact is that we have to act on their information whether or not it is written, and if we are only going to rely on what is written, why do we bother to interview them? The answer is obviously that people give better information answering questions than they do in a statement. Hence…our interview notes are a better source of data than a statement. Finally, I worry about varied levels of literacy and writing ability, and how those can limit or enhance someone’s chance of having their story understood. What I will say, in my usual caveat about consistency, is that if, for some reason, you feel you need written statements, get them from everyone, not just the complainant.

Q:Do you ever try to get an interviewee to lose her temper just to see if you can?

On occasion, we will anticipate a monster walking into the room — when many interviewees have described someone’s temper, yelling, screaming, emotional outbursts, etc. When the person comes in and is professional and calm, it certainly should lead to an investigator being curious about whether the previous witnesses were exaggerating or whether we are dealing with a good actor. In these cases, and within reason, and late in the interview, I may be provocative with the individual to determine if they are consistent in their behavior. This would be part of a credibility assessment. Generally people with poor impulse control can only sustain a calm demeanor for short periods, so this can be successful. I would not recommend doing this routinely.

Q: How much detail about a situation do you give the interviewee? In a small organization it becomes obvious who the complainer is — should we be protecting the complainer’s identity?

We should protect the identity of complainers and witnesses when it is possible…and that would be when identifying them is not necessary to allow a respondent to respond to each and every allegation against them. So, for instance, if you are told that someone has dirty magazines in his drawer, you can ask him if he has dirty magazines. If he asks who made the allegation, the proper response is “you don’t need to know.” If the allegation is that Mary Smith called John Doe a racially inappropriate name, we might ask Mary if she has used racially inappropriate language in the workplace, and then, if she denies it, ask if she has used the particular utterance. If Jane Walters says that Mike Brown made a sexual advance towards her, we are going to have to ultimately ask Mike Brown if he did so, and Jane’s identity will need to be shared. This is called need-to-know and is the standard for information sharing in investigations.

Q: A variety of questions regarding data practices

a)Minnesota specific answer here. The Attorney General’s office has advised that Tennesen Warnings do NOT apply to employment investigations. This does not mean that some employers do not continue to provide them.

b) In my session on interviewing, someone asked about providing interviewees with copy of the interviewers notes, and I responded rather fliply that I don’t do that. Of course, several of you correctly pointed out that in public sector investigations that the subject of the data, once the investigation is over, is entitled to the investigator’s notes. I was not thinking about either the public sector or the context of post investigation, and I apologize. There are limited circumstances under which individuals may request and receive the interviewers notes. As an outside investigator, I do not provide those notes unless I am instructed to do so by a unit of government, subject to an appropriate demand under the Minnesota Data Practices Act. Everyone else — I just say no!

More answers tomorrow!

For those of you in search of a checklist that I mentioned, Click here for theInterview Checklist .

Confidentiality — Managing Expectations

January 20, 2007

Every supervisor has heard some version of these words: “I want to tell you something, but I want you to promise not to tell anyone….” These words should be somewhat flattering. It means that an employee trusts the supervisor enough to confide in them and wants the supervisor’s advice. Right? Maybe…and maybe not. In my supervisory training, I tell trainees to treat these words as though someone has just handed them a live bomb. Yes. A bomb. bomb

The instinct to respond to an employee request for confidentiality with assurances that the supervisor will maintain the employee’s secrets can be explosive and expensive. Why? Simply because if the employee reports certain kinds of violations, such as violations of Title VII, then the discussion of that issue with the supervisor is notice to the company, and a company becomes liable for harassment or discrimination when it “knew or should have known” of the conduct, but failed to take prompt, appropriate action.

It is not unusual for serious allegations agains a company to be accompanied by reports that “I told my supervisor and he/she did nothing to stop it.” It is also not unusal for the supervisor him or herself to protest, “but s/he told me s/he did not want anything done.” So what can be done to help supervisors with the dual obligations to create an environment of trust with their employees, while maintaining a primary obligation to act in the interest of the organization?

1. Supervisors should be very clear on the limits of confidentiality. In fact, it is not a bad idea to eliminate the term “confidentiality” from the workplace altogether. After all, what does “confidential” mean to most employees? Ask a few. You will hear that it means “whatever I tell you, you will not tell anyone else.” What they are describing is privileged communication available under the rarest of circumstances in the workplace. There are so few situations in which an employer can offer privilege, that merely suggesting it is an option simply inflates expectations. Rather, policies and statements should include the more verbose, but more precise language that “employees’ information will be kept private to the extent possible.” Thus, an employee asking a supervisor to keep something secret would be told “There are many things that can stay between you and me, and some things I will need to act on. If what you tell me involves possible violations of policy or law, I probably will need to act. Read the rest of this entry »

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