In the course of conducting corporate investigative interviews, interview subjects may ask whether a third party can attend the interview. What is the proper response and action if an employee requests that a third party accompany them during an investigative interview?

Whether this is acceptable depends upon several factors including:

• the willingness or reluctance of the employee to participate in the investigation
• who they are asking to bring into the investigative interview
• the nature of the investigation

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Why You Might Not Want a Third Party in an Investigative Interview

There are several reasons why you may not want to allow a third party to be present during the interview:

1. Often these interviews disclose sensitive or proprietary information, so an outsider may not be welcome.
2. The interview can also include information that may involve comprising the privacy of another person.
3. Additionally, it must be considered whether or not a third person could compromise the integrity of the investigation itself.
4. Consider whether allowing a third party to sit in can set an unwanted precedence for subsequent interviews.

Why an Employee Might Want a Third Party Present

If the employee being interviewed is the person implicated in the investigation, they may ask for a third party to be present. This could be a person from outside the company, such as:

• an attorney
• a union representative
• a friend

Since this is an investigative interview and not a court trial, the appropriateness depends upon the situation and the person requested.

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Attorneys and Union Reps in Interviews

For example, an employee might ask for an attorney or a union rep to be present. While this may seem to be an appropriate request, it must be carefully considered. An attorney or union rep may actually work against you during the interview process.

Attorneys and unions reps may be more experienced at asking questions than the interviewer, or may even compromise the investigation by finding fault with the questions asked or the evidence presented. As a general rule, and since this is not taking place in a court of law nor is it a deposition, they should not be allowed to attend or scrutinize the investigative interview.

If the employee requests that someone from inside the company attend, such a co-worker or manager, this is also not a good idea. The risk of compromising privacy rights, discussions about sensitive data, and loss of control all come into play here as well.

Rules for Third Parties in Interviews

In the event a third party is allowed into the investigative interview, it must be made clear that they:

• cannot interfere or disrupt the interview process
• only act as an observer
• are not to ask or answer any questions
• may not object to any questions or make comments of any kind
• must agree that everything said in the interview is confidential and cannot be discussed outside

These rules are paramount to avoid privacy and confidentiality issues, as well as to protect the integrity of the interview and the investigation process. If they do not agree or if they attempt to disrupt the interview in any way, the interview should be immediately stopped.

The best course of action is to notify the interview subject in advance that no third party will be permitted to attend the investigative interview. Explain that this is for their own protection as well as to protect the investigative process. If they understand that this is an investigative interview with the goal of finding out the facts of the situation, and is not a trial or pronouncement of any guilt or blame, that should help them be more comfortable.