Interviewing the Complainant and Witnesses: Building a Record That Holds Up
What Employers Need to Know
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The complainant: get the full account, on the complainant’s terms first
Begin open-ended and stay there longer than feels efficient. Start with “tell me what happened, from the beginning.” The narrative a complainant gives before being led by questions is among the most valuable content the investigation will produce. It positions the allegations in the complainant’s own words, and its consistency (or drift) against later tellings will anchor the credibility analysis discussed in a later installment. Only after the full narrative do you move to specifics including dates, locations, witnesses, and documents. Close with three commitments you can actually keep and an open door. First, commit that the matter will be investigated promptly. Second, commit that confidentiality will be maintained to the extent possible, but never promise absolute confidentiality. Third, remind the complainant that retaliation is prohibited and share with them the channel to report it. Finally, keep the door open. Before ending any interview, always ask the witness, “is there anything we’ve not discussed that we should have discussed or that you think I should know?” Then, make sure the line of communication remains open. Make sure the witness knows how to contact you. A complainant who hears nothing from the business for five weeks often concludes nothing is happening, and files a charge or retains a lawyer to make something happen.
The witnesses: sequence, discipline, and the instructions
Interview witnesses in the order most likely to preserve unrehearsed accounts, and give each witness only the context their interview requires. Do not give the complainant’s full narrative or your working theory; a witness who has been briefed produces an echo, not evidence.
The investigator should not demand confidentiality. The practice of demanding that the witness does not talk about their interview is over. The National Labor Relations Board, depending on its composition, takes varying positions on whether blanket demands that employees keep investigations confidential infringe on Section 7 rights. While the Board’s current composition may prove more forgiving if this instruction is delivered, the durable practice is a tailored instruction offering what role confidentiality can play, including tying it to specific integrity needs. In unionized workplaces, honor Weingarten. An employee who reasonably fears discipline from an investigatory interview is entitled to request a representative, and an interview taken in violation of that right can taint everything it produced.
The notes: write for the deposition you hope never happens
Interview notes should be contemporaneous, factual, and complete enough that a stranger could reconstruct the interview. Notes should include the questions asked, answers provided, documents shown, and details about the demeanor of the witness. Editorial impressions in notes are typically not perceived well after the fact. Whether or not to record interviews deserves deliberate thought. Recordings are complete and unimpeachable, which is precisely their risk. When there is a recording, everything, including your own missteps, is preserved, and several states require all-party consent. Whatever medium you choose, finalize the notes promptly. Notes that are finalized weeks after the interview announce their own unreliability. The investigator’s notes should include, at a minimum, the date, time, and location of the interview. If the interview is conducted virtually, say so, and note whether the witness participated with their camera on or off. Identify any other participants in the interview. It should also be apparent from the notes that the investigator addressed retaliation, plainly stated the investigator’s role, and gave the witness the opportunity to add any other information before concluding the interview. In depositions four years after the investigation, the notes will guide your recall.
What can employers do now to improve their process?
- Standardize the interview open and close. Script the confidentiality caveat, the anti-retaliation instruction, and the no-promises framing so every investigator delivers them the same way.
- Replace any blanket confidentiality instruction in your templates with the tailored, documented version.
- Set a notes standard. Notes should be contemporaneous, finalized within 48 hours, include facts over impressions, and be a uniform format across investigators.
- Build the follow-up with complainant into the calendar. A brief status touch-base every two weeks costs minutes and prevents the silence that turns complainants into charging parties.
Next installment: interviewing the accused, Upjohn warnings, counter-complaints, and the denials that must be captured precisely.
The Investigation Roadmap: A Twelve-Part Series for Employers
This is an installment of the Investigation Roadmap, a twelve-part Vorys at Work series on workplace investigations. It is published weekly and walks through the full life of a workplace investigation, from the moment a complaint lands to the day the file becomes an exhibit.
