Interviewing Investigation Subjects: Best Practices

During a workplace investigation, you’ll need to interview three key people to gather the facts you need: the victim/reporter, the accused/subject, and witnesses. Subject interviews are particularly critical, as they cover the “other side of the story” from the report or complaint and can help you determine if misconduct occurred. To ensure accuracy and fairness to all parties involved, investigators must adopt the right mindset, strategies, and values.

Below, you’ll find best practices for interviewing the implicated employee, plus common questions and answers on the subject, from investigations expert and author Meric Bloch.

Preparing for the Subject Interview: Get Into the Right Mindset

The goal of a subject interview is not to confirm suspicions; in fact, you should go into the session without bias. Just because someone accused this person of misconduct doesn’t mean they committed it. Your real goal is to uncover the facts and the context behind alleged behavior.

To achieve this, approach your subject interviews with:

1. Respect and Dignity: Recognize that most individuals are not inherently bad but may have made poor decisions. Treat them the same way you did the reporter and witnesses.
2. Empathy: View the subject as a human being capable of error, not a criminal.
3. Curiosity: Seek to understand the reasons behind the conduct rather than imposing preconceived notions. If they did commit the misconduct, why? Did they think they wouldn’t get caught? Do they have financial troubles? Are they dealing with a mental health issue?

This mindset ensures that the investigation remains professional and unbiased, promoting an overall culture of ethics in your workplace.

“The subject has to believe that sharing information with you is good for them,” explains Bloch. This time should be viewed as an opportunity for them to “tell their side of the story.”

Key Skills for Effective Subject Interviews

Anyone can interview an implicated employee, but only skilled investigators know the right questions to ask and how to ask them.

If you want to uncover the information you need to resolve your case, you’ll need the following skills:

• Rapport Building: Establishing and maintaining a comfortable yet professional atmosphere throughout the interview. The interviewee feels they can open up to you safely.
• Flexibility: Adapting to unexpected turns in the conversation while staying focused on the investigation’s objectives. This could be anything from angry outbursts to shutting down.
• Active Listening: Paying attention to both verbal and nonverbal cues and asking clarifying questions. Respond to their answers, rather than just sticking strictly to your list of questions.
• Open-mindedness: Avoiding premature conclusions and allowing evidence to shape the narrative. This person deserves to be heard as much as the reporter.
• Strategic Communication: Managing the flow of information shared with the subject to maintain confidentiality and control over the interview. Share what you can, but be mindful.

“Most of these [skills] are not intuitive,” Meric explains. “So these are things that you really have to do as you’re developing your skills and your competence as an interviewer.”

Avoiding Common Errors During Subject Interviews

Interviewers must remain vigilant against personal biases and premature judgments, Meric says. Going into an interview with bias “destroys your objectivity” and “the minute you’re called on it, all your credibility goes out.”

Similarly, don’t get “tunnel vision” or jump to conclusions. “Tunnel vision is really bad because you’ve closed your mind. Now what you’re looking to do is kind of tick the boxes because you’ve kind of made up made up your mind about what happened,” Meric explains. “Rather than just, ‘let me ask my questions and I’ll parse through that to get my needs met,’.”

Finally, don’t use manipulative tactics such as bluffing or making unfulfillable promises. Instead, be straightforward with the subject. “I usually say, ‘I can’t tell you everything you’re going to want to hear. But whatever I tell you, you can believe to the best of my knowledge. It’s the truth,’.”

These mistakes can undermine credibility and jeopardize the investigation’s outcomes.

Engaging with Challenges

Subjects may raise objections or offer excuses for their alleged behavior. They may also resist cooperating with you, from outright refusing to speak to providing deceptive answers. In such cases:

• Focus on clarifying inconsistencies in their statements without becoming confrontational.
• Appeal to their rational self-interest by emphasizing how their cooperation can help present their side of the story accurately.
• Reassure them of the fairness and neutrality of the investigation process.

Other effective strategies include redirecting the conversation, addressing their concerns empathetically, and reinforcing the importance of their input. Investigators should avoid making deals or guarantees about the investigation’s outcomes, focusing instead on gathering accurate and complete information.

Most importantly, says Bloch, “You cannot somehow say, I’m not done with you, sit down. That will get you sued.” While a subject interview is essential to the investigation, the person is free to go. Find another time and way to get the information you need, as the employee is clearly not in the mindset to participate effectively.

Upholding Procedural Fairness During Subject Interviews

Procedural fairness should be your top priority during workplace investigations. Subjects are entitled to fair notice of the investigation, an opportunity to respond, and access to records of their interviews. While they must cooperate, their rights—such as being free from bias and knowing the potential consequences of non-cooperation—should be respected.

In addition to these, your employees might have other rights based on your geographic location or their union. Make sure you know and follow the full list of rights to not only do right by your employees, but to protect your organization from potential fines and lawsuits.

Choosing the Right Subject Interviewing Approach

When interviewing implicated employees, investigators usually adopt one of three styles:

1. Factual: Focus on objective details and evidence, moving systematically through the case.
2. Emotional: Engage the subject empathetically, discussing their motivations and challenges.
3. Thematic (Hybrid): Combine factual and emotional elements to create a narrative that resonates with the subject, encouraging truthful admissions.

Meric urges investigators to use the hybrid approach whenever possible. He says that using a simply factual approach causes them to miss “out on context” and “what motivated that person.” He explains, “So in other words, you’ll get the what, but you’re probably not going to get the why.” On the other hand, a purely emotional approach might lead you to miss out on details of the incident that you need to determine if misconduct occurred.

Interviewing the Implicated Employee: Frequently Asked Questions

Below, Meric answers commonly-asked questions about interviewing investigation subjects.

Do I have to inform the Subject who made the allegation against them?

The Subject has neither the right to know their accuser nor the right to cross-examine that person. Whether you inform the Subject depends on the nature of the case.

In most situations, the conduct of the Subject is at issue (what they said or did). The person who observed that conduct and reported it is not relevant to determining whether improper conduct occurred that violates company policy. When investigating sexual harassment or retaliation, however, you may need to identify the recipient of the allegedly improper conduct to facilitate a proper interview. For these cases, the improper conduct did not just occur; it was targeted at a specific person.

Remember to advise your witness about the prohibition against retaliation or anything else that may hurt the witness for speaking up.

What do you do when the Subject tells you that they want to speak to a lawyer?

A workplace investigation is not a criminal investigation, so the rules are different. The right to speak to a lawyer before questioning comes from the constitutional rights afforded to someone accused of a crime.

An employee may consult a lawyer at their expense to guide them and protect their legal interests. Absent some other rule, the employee may not force you to deal with their lawyer.

A workplace investigation is an administrative inquiry by an employer. There is no right to have counsel present at the interview. If you were to allow this – I have done this on occasion – the lawyer may only observe the interview and ensure the record is clear. The lawyer may not ask their own questions or participate.

Should I record the interview?

The only pro of recording is that, of course, you have a verbatim transcript. But this comes at a price. Both the witness and the interviewer may be too self-conscious being recorded. The witness will be reluctant to relax and give information, and the interviewer may be more concerned with sounding smart and asking good questions. Excellent notetaking is a better choice.

If you do choose to record, make sure to follow your state’s laws regarding consent.

Do I have to share my interview notes with the Subject?

You do not have to share your interview notes with the Subject. You may wish to recap important answers you received to confirm that you understood the Subject accurately. The confirmation also helps you get the witness to say the same thing twice.

What happens if my witness wants to have a coworker accompany them to the interview?

Unless some rule applies, a witness is not entitled to be accompanied by a support person, such as a coworker. If the witness would like someone to observe the interview, the relevant HR manager would be a better choice.

How do you show compassion to a witness but not feel sorry for them?

The employees you investigate are rarely bad people. They just made some bad decisions, and you are holding them accountable for what they did.

Seeing a fellow human being and feeling some empathy for what they have gotten themselves into is a valuable trait for an investigator. The people we interview have emotions, motives, and rationalizations. When we take time to understand these factors, we can view the information in a richer context. Just be sure that compassion does not affect your methodology and fact-finding.

What do you do when the Subject admits misconduct but also provides “excuses” for why they did it?

Obtaining an admission of improper conduct is the best evidence you can obtain from the Subject. Let them provide all the excuses and rationalizations they want. Let them give mitigating evidence that makes it seem less bad.

Our objective is to compare the true facts about their conduct to the relevant company policy. It is what they did, rather than how they characterize it, that matters.

Do societal norms and changes in expected behavior apply to hostile work environment considerations and sexual harassment claims?

The short answer is no. Local culture may play some role, such as kissing on the cheek as a greeting, but even then, not too much.

You are enforcing workplace rules. Those rules define what is acceptable and unacceptable conduct in that workplace. The fact that times change does not affect how the employer has currently defined expected conduct in the workplace. The expected conduct inside the front door may be different than the expected conduct outside the front door.

When you encounter a witness who appears to be deceiving you, is it better to ask them to help you reconcile their information with other evidence that contradicts it?

Yes. The alternative is to tell the witness that you believe they are not being truthful. This can be unnecessarily provocative. It also tells the witness what you are thinking.

Focus on the lie, not the liar. Tell the witness your job is to explain the true facts. This means that information must be integrated and harmonized. Explain how you are having trouble reconciling information. Ask for their help reconciling it.

What is the difference between an admission and a confession?

Admissions are valuable for an investigator. Confessions don’t do much other than open the door to seek admissions.

Think about a retaliation case. Janet believes that Larry, her manager, withdrew his permission for Janet to work remotely because she went to HR to complain about his locker-room communication style.

If Larry says: “I confess that I retaliated against Janet because I was angry,” you don’t have what you need.  The elements of a retaliation violation are (i) the employee engaged in a protected activity like raising a concern to HR; (ii) the employee suffered some adverse employment action; and (iii) the adverse employment action was motivated by the fact that the employee engaged in the protected activity. You need to prove the elements.

Instead, I want Larry to admit that he knew Janet went to HR. I want him to admit he was angry at Janet. I want him to admit that Janet’s trip to HR was the motivating factor in his decision to withdraw his permission.

I need admissions to prove the elements.  A confession doesn’t get me there.

What is the best way to obtain an admission of improper conduct from the Subject?

Focus on the conduct and not the person. Most people don’t believe they are bad people.  They will, however, admit that they make mistakes and do things that, upon reflection, they wish they had not done. To prove the elements of a violation, you need to identify the true facts of what was said and done. You can just stick to that.

Do the emotional, factual, and theme-based confrontation methods conflict with the need to remain neutral and not presume guilt?

These approaches do not presume guilt. They are simply methods to gather admissions of improper conduct from the Subject.

Can a Subject read aloud a prepared statement in the interview?

I would offer to add the statement to the investigation file. You are a factfinder and not a decision-maker. The Subject does not need to persuade you about their position.

Are there any risks with the emotional confrontation approach?

Not really. The only risk I see is that the Subject may describe their feelings rather than give you concrete and specific facts. If that happens, just ask follow-up questions to get the details.

Is an investigator obligated to inform the witness that they are using AI to record the interview and to offer to share the interview transcript?

I don’t believe that you must inform a witness how you are recording the interview as long as you inform them that you are, in fact, recording it.  Legalities aside, it would look unfair and sneaky to record it secretly. If I were to record an interview – something I do not do – I would share the transcript. There is no harm to the investigation.

If you are called to testify in court about your investigation, how do you explain your investigation?

When I have testified about an investigation, I stated these things:

1. My qualifications as an investigator for this type of investigation.
2. The policies and procedures I adhered to for this type of investigation.
3. The methodology for my factfinding.
4. My findings.
5. Why my findings were correct because of the evidence.

What are Weingarten Rights?

Weingarten Rights are the rights of unionized employees to have a union representative present during an investigative interview.

Employers will often assert that the role of a union representative in an interview is to observe the discussion. The union representative has a right to assist and counsel workers during the interview.

The union representative is allowed to speak privately with the employee before the interview. During the interview, the union representative can interrupt the interview to clarify a question or to object to confusing or intimidating factors.

When the interview is in progress, the representative cannot tell the employee what to say but he may advise them on how to answer a question. At the end of the interview, the union representative can add information to support the employee’s case.

What do you do when management tries to direct the outcome of the investigation?

This is a bad situation. Management should never direct the outcome of the investigation.

We should solicit their input when planning the investigation, determining the scope of the investigation, and identifying the objectives. Investigators represent the company and not specific managers.

When investigating an allegation that now appears to be unfounded, how do you manage a Subject who gets angry about the perceived public embarrassment?

Every Subject objects to the reputation risk posed by a workplace investigation. You should counsel the Subject that the investigation is a generally accepted response by employers to credible concerns raised regarding actual or suspected misconduct.

The company has no choice but to investigate the concern. The company does this seriously and confidentially with professionally trained investigators. You can also ask management to remind coworkers not to discuss the investigation or speculate about its outcome or the merits of the original concern.

Does the Subject receive a copy of the investigation report?

The Subject is not entitled to receive a copy of the investigation report. The report is a management document. You can share the report if you want to, but you need to be concerned that the report will identify your evidence sources.

How Case IQ Can Help

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Important: This post is for informational and educational purposes only. This post should not be taken as legal advice or used as a substitute for such. You should always speak to your own lawyer.