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An investigative interview can be part of a misconduct investigation process. Investigators interview employees to learn and gather information about an alleged incident or situation. An investigative interview is a fact-finding effort to determine whether it is more likely than not that a policy or work rule was violated. The findings from an investigation sometimes establish the basis for discipline.
Notice and Employee Rights to Representation
Employees under investigation must be given notice of the investigative interview, information on the nature of the issue, EAP referral, and a statement on their right to union or association representation.
Employees who may have witnessed an incident or who may have knowledge related to an incident under investigation may be questioned, as a witness, without Union or association representation. However, investigators must do two things first: (1) be sure of the witnesses’ role in the incident to determine they would not face discipline. This may not always be possible at the early stages of an investigation and (2) tell the employee at the start of the interview that they are not facing any discipline for what they tell the investigators.
An employee directly involved in an incident or matter under investigation, and against whom discipline could reasonably be anticipated, may be questioned by their supervisor or investigators in order to gather further facts and/or information. Employees with direct participation in the incident have a right to union or association representation.
Investigators should arrange for another supervisor or co-investigator to attend the interview.
Employee obligation to answer questions
Employees have an obligation to answer proper work-related questions during an investigatory interview. Refusing to answer questions could be considered insubordination. Insubordination is a violation of work rules and would result in a separate disciplinary process.
An employee who is under investigation for an incident that could also be a criminal offense (theft of large value items, assault, etc.) presents a special legal consideration. Supervisors or investigators in these situations should consult with Labor Relations or the City Attorney or both before proceeding with interviews.
Employees should be told at the start of the interview they are not to discuss the investigation with other people, other than their Union or Association representative. If the issue involves a dispute between two employees, or harassment or discrimination allegations, employees should also be told that retaliatory behavior will not be tolerated.
Notes and Documentation
The notes derived from an investigation are an extremely important component of the investigation. Guidelines include
- Start a new page for each interview. At the top of each page, include the names of those present at the interview, the date, time and place of the interview.
- Record what is asked by the interviewer as well as the answers provided by the interviewee.
- Be as accurate as possible. For investigative interviews, it is appropriate to take notes as close to verbatim as possible.
- Quotation marks should only be used if it is a direct quote written exactly as it was spoken.
- Do not include interpretations, assumptions, beliefs, or conclusions about the facts stated. Rather than interpreting what the employee says, ask them to be more specific about what they really mean.
- Record facial expressions, hand gestures, rising or falling voice, contradictions, anxiety, or agitation.
- At the end of the interview, the note taker should review the notes with the interviewee and confirm their accuracy. When the interviewee expresses agreement, that should be noted.
The Role of the Union/Association Representative During Investigations
Union or association representatives may:
- Engage in a brief discussion with the employee prior to the hearing.
- Observe and take notes during the hearing.
- Repeat points the employee has previously attempted to express.
- Explain the significance of a point made by the employee.
- Speak about practices at the work site.
- Occasionally confer with the employee in a confidential manner.
Union or Association representatives may not:
- Bargain about disciplinary penalties during the hearing.
- Respond to questioning for the employee.
If the union representative continues to answer for the employee or instructs the employee not to respond, the investigator should take the following steps.
Inform the union representative that:
- Supervisors have the right to question employees about work-related matters
- Supervisors have the right to expect the employee to answer as completely and truthfully as reasonably possible.
- The Union representative has no right to interfere with the process.
Inform the employee that:
- It is their duty to cooperate and answer questions. They may be disciplined for insubordination if they do not cooperate.
- If they do not answer questions, the investigation findings and decisions will be based on existing facts and sources of information.
The documentation developed through the course of the investigation will help serve as a foundation for completing the investigative report.