Conducting Internal Investigations: Avoiding Claims of Intimidation and Coercion by Dennis J

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Conducting Internal Investigations: Avoiding Claims of Intimidation and Coercion by Dennis J. Merley - Tuesday, April 08, 2014

Employers routinely conduct internal investigations in response to allegations of harassment, discrimination, retaliation, theft, and other forms of employee misconduct. While conducting such investigations can be critical to a business’s continued operations, employers should be mindful of the importance of exercising neutrality and fairness when doing so.

An employer that exercises particularly aggressive interrogation tactics during internal investigations risks later allegations of intimidation and coercion by the employees who were interviewed. For example, auto parts retailer AutoZone has been subject to a series of lawsuits in recent years brought by former employees claiming that they were pressured into providing false confessions due to the intimidating interrogation techniques allegedly used by the company, as recently reported in the New York Times. Legal claims in lawsuits like these may include false imprisonment, invasion of privacy, defamation, and negligent or intentional infliction of emotional distress, among others.

To reduce the risk of allegations of coercion, employers should keep the following practical considerations in mind when conducting interviews during investigations of employee misconduct:

Use a trained investigator or HR employee to conduct interviews.

Define the scope of the investigation in advance of any interviews, and consider

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preparing an outline of the information sought.

No matter how sound the “evidence” may be, always interview the alleged wrongdoer and give him or her an opportunity to respond to the allegations.

Ask the employee to come with you for the interview, but if possible, do not order him or her to do so.

Do not make threats in general or threaten to call the police if the employee is not cooperating or refuses to answer. But, if the employee does refuse to cooperate, you may tell the employee that you will draw your own conclusions without the employee’s input.

Advise the employee at the outset that he or she is free to leave the interview at any time.

If appropriate, consider having a second person attend to serve as a witness. However, keep in mind that having too many people present may increase the interviewee’s perception of intimidation.

Union employees have the right to have a steward present during an investigative interview that could lead to discipline of the employee being interviewed.

Interview any witnesses identified by either side; do not selectively interview only the witnesses identified by one side but not the other.

Exercise caution when using recording devices. Federal and state law restrict the use of audio and video recording in certain circumstances. In Minnesota, for example, audio recording is lawful if one party to the conversation consents. Likewise, an employer may utilize video (but not necessarily audio) surveillance except in those areas where employees have a reasonable expectation of privacy. Note: Surveillance is a mandatory subject of bargaining, so employers with union employees may not unilaterally impose video surveillance.

In addition to these practical tips, employers should be very careful when instructing employees to keep investigations confidential. In Banner Health System, 358 NLRB 93 (2012), the National Labor Relations Board held that blanket policies prohibiting employees from discussing ongoing investigations violate the National Labor Relations Act as a matter of law. Instead, employers must determine whether confidentiality is required on a case-by-case basis based on certain considerations, including whether the witnesses may need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a “cover up.”

Bottom Line

Be well prepared before conducting interviews during investigations of employee misconduct. In

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addition, avoid using intimidating and threatening interrogation techniques. While internal investigations are commonplace and necessary, employers can avoid decreased morale and increased litigation by conducting such investigations reasonably and fairly.

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