The most important questions to ask during internal investigations into employment-related issues
An employer that receives complaints by or about its employees needs dependable information, because making an informed personnel decision based on carefully collected evidence reduces the risk of litigation and, if litigation ensues, increases the likelihood of success.
An investigation by a skilled investigator — whether in-house counsel, human resources professionals or outside counsel — is the best way to collect information. While there are many important elements of a sound investigation, this article provides specific practical advice about the key questions an investigator should always ask.
The Most Important Questions To Ask Every Witness
Investigators routinely ask witnesses the “who, what, where, when, why, and how” questions, which are important for developing facts. However, the most important questions come toward the end of a witness interview. In particular, when wrapping up every witness interview, an investigator should make sure to ask two questions. The first question is: Is there any other information that you think would be helpful for my investigation?
This question allows the investigator to uncover all potentially material information that the witness may not have already disclosed. Even as a thorough and productive interview comes to an end, it is not unusual to receive a substantive answer to this question.
One reason is that the witness may have been reluctant to volunteer information not directly responsive to one of your earlier questions but, given freedom to answer more broadly, will do so. Also, by the end of the interview, the witness is more comfortable and has had more time to think about the issues you are investigating.
This question is also important because it makes it more difficult for witnesses to later accuse you of not giving them a full opportunity to tell their version of events. Indeed, this question invites witnesses to share anything.
The second question you should ask when wrapping up every witness interview is: Other than what you’ve already identified, are you aware of any documents bearing on any of the issues we discussed?
Collecting documents is critical to investigations. Throughout an interview, you should repeatedly ask the witness for documents. However, this catchall closing question increases the likelihood that you will find out about documents that the witness failed to mention or you did not ask about earlier.
For each of these critical closing questions, unless the witness answers “no,” repeat the question before you finish the interview, until the witness has nothing more to add.
The Most Important Question To Ask The Accuser
When concluding an interview of an individual who raised the allegations you are investigating (or who has raised similar allegations), make sure to ask if he or she has any other complaints, allegations or concerns. Tailor the question to your situation.
For instance: Other than what we already discussed, have you had any other problems or issues with your supervisor? Or: Other than what we already discussed, do you feel that the company has treated you unfairly in any other respect? If the individual provides any response other than “no,” be sure to repeat the question before finishing the interview, until you are satisfied that the witness has raised every allegation.
One purpose of this question is to identify all of the allegations against the employer, because you cannot conduct a thorough investigation unless you know all of the allegations.
Another purpose of the question is to prevent the witness from raising additional allegations later. An individual who has a full and fair opportunity to voice all of his or her concerns to the investigator cannot credibly raise additional allegations in the future, such as in a lawsuit.
An internal investigation is the best way for an employer to get to the bottom of a personnel issue. A critical part of any investigation is witness interviews. When interviewing witnesses, in addition to asking them the “who, what, where, when, why, and how” questions, be sure to ask them, as you wrap up each interview, if they have any other helpful information or documents.
Also, be sure to ask the accuser questions that rule out any other allegations. These questions are an important part of any successful investigation.
Editor's note: This is a guest contribution from William Horwitz, employment counsel at Drinker Biddle & Reath.