In most investigations, interviews are the main tool investigators use to find out what happened. More often than not, investigators have to rely almost entirely on statements from the main players and witnesses, who may contradict each other. If the main participants flatly deny each other’s claims, you’ll have to sort out who is telling the truth.
How can you decide whose story is more credible in these “he said, she said” situations? The first step is to conduct interviews designed to elicit as much information as possible. The more information you can draw out of each witness, the easier it will be to figure out what happened and why. The interviewing tips that follow will help you elicit the most useful responses, even from the reluctant or contentious witness.
Some investigators don’t want to believe that serious misconduct or harassment could happen in their company, and so tend to make light of possible wrongdoing. Others jump to the opposite conclusion, assuming that an employee would not complain without good cause.
As an investigator, your job is to avoid making assumptions. No matter how serious the problem or how straightforward the situation appears to be, don’t reach any conclusions until you have gathered and evaluated all the facts. If you start your investigation believing you already know what happened, you will miss some important details. But if you keep an open mind until your investigation is complete, you will conduct more thorough interviews—and receive more candid answers to your questions.
Your goal when conducting an interview is to get as much information as possible. The best way to accomplish this is to ask open-ended questions. If you ask questions that suggest the answer you want to hear or questions that call only for a yes or no answer, you will be doing all the talking. Instead, ask the witness what he or she heard, said, or did, and why.
The employees you interview are likely to be nervous and uncomfortable. Employees suspected of wrongdoing will probably also be defensive, frightened about what may happen, and perhaps willing to lie to save their jobs. If you begin your interview by asking directly about the alleged misconduct, you will aggravate an already tense situation—and probably limit the flow of information. Someone who feels accused or put on the spot is more likely to clam up. Also, if you cut to the chase too soon, you’ll miss your chance to find out important details before the employee knows why you’re asking questions (and, therefore, has an opportunity to tailor the answers accordingly).
The better course of action is to start with basic background questions about the employee’s job, coworkers, daily schedule, and so on. You’ll have to get to the tough questions eventually, but starting with a few softballs will put the employee at ease and give you the opportunity to ask about seemingly unimportant details that could prove very significant to your investigation. It will also help you get a sense of the employee’s demeanor and body language when he or she is comfortable and telling the truth. Then, when you get to the tougher questions, you can see whether the witness reacts differently (for example, the witness stops making eye contact, starts fidgeting, or becomes much less certain of the facts). This will help you judge credibility.
As your investigation progresses, you will inevitably start to develop some opinions about what really happened. You should not share these opinions with witnesses, however. If you suggest, through your statements or the tone of your questions, that you have already reached a decision, witnesses will be less likely to speak freely with you. Some witnesses might be afraid of contradicting your version of events; others might feel there is no point in explaining what really happened if you have already made up your mind. In the worst-case scenario, a witness might believe you are conducting an unfair or biased investigation and challenge the outcome in court.
On the television series Dragnet, Joe Friday had a simple interviewing technique: He asked his subjects to tell him “just the facts.” If only it were that easy in real life. Many people have a difficult time distinguishing objective fact from subjective opinion when describing what they have seen and heard. Some witnesses might describe another person’s motivations or thoughts, relate rumors as if they were known facts, or exaggerate. Your job is to separate the wheat from the chaff—that is, to isolate fact from opinion—then find out the basis for the witness’s story.
Always look for leads. Ask every person you interview whether they know of other witnesses or physical evidence relating to the incident. If the witness is the accused or complaining employee, ask whether anyone else saw or heard the incidents in question. Ask whether they told anyone about the incident when it happened. Find out if they took any notes about the problem or if any workplace documents—emails, memoranda, or evaluations, for example—relate to the incident.
Sometimes, one witness contradicts what another has said. The accused and complaining employees are perhaps most likely to contradict each other, but even uninvolved witnesses might give conflicting stories. The best way to deal with these inconsistencies is to ask about them directly. Once you get down to specifics, you may find that everyone agrees on what happened, but not on whether it was appropriate.
If the witnesses continue to contradict each other even after you have pointed out the conflicts in their stories—if the accused flatly denies the complaining employee’s statements, for example—ask each witness why the other might disagree.
Complaints can polarize a workplace. Workers will likely side with either the complaining employee or the accused employee, and the rumor mill will start working overtime. Worse, if too many details about the complaint get out, you may be accused of damaging the reputation of the alleged victim or alleged wrongdoer.
You can minimize these problems by practicing confidentiality in your investigation. Tell each witness only those facts necessary to conduct a thorough interview.
It is against the law to punish someone for making a complaint—or participating in an investigation—of harassment, discrimination, illegal conduct, or unsafe working conditions. And it is against your company’s best interests to punish any employee who comes forward with a good-faith complaint, regardless of the subject matter. You want to encourage employees to bring problems to your attention, so they can be resolved before they start draining productivity or stirring up legal trouble. Assure every person you interview that you want to hear their side of the story and that they will not be retaliated against for coming forward.
People sometimes freeze up when they’re put on the spot. It’s very likely that a witness might remember some significant detail—or learn new information—after the interview is over. To make sure you stay in the loop, close every interview by thanking the witness and asking him or her to contact you if anything else comes to mind.
Take notes during every interview. Include the date, time, and place of each interview, the name of the witness, and whether anyone else was present. Don’t just record the witnesses’ conclusions; include all the important facts that the witness relates or denies, using the witness’s own words whenever possible. These notes will help you remember what each witness said later, when you are making your decision. They will also help you defend your investigation in court, if it is challenged as biased or incomplete.
Before the interview is over, go back through your notes with the witness to make sure you got it right. It’s a good idea to have the witness sign either your notes (if they are legible) or a written statement of what was said during the interview.
Want to know more about interviewing witnesses and conducting investigations? Pick up a copy of The Essential Guide to Workplace Investigations, by Lisa Guerin (Nolo).