This piece from Ayesha Hamilton appeared in NJSBA’s December 2023 issue of New Jersey Lawyer.
As a plaintiff’s attorney, you are often retained before the employee is terminated. In most instances, you work in the background, guiding the employees as they navigate a difficult workplace situation.
There may come a point in time when the employee is notified that human resources or an external investigator is going to investigate (a) the claims the employee is raising against a coworker/supervisor; or (b) the employee is notified that they are the target of an investigation for some alleged bad acts. In certain cases, it may be beneficial to notify the investigator that you represent the employee and ask to be an observer to your client’s interview. While investigators used to refuse any counsel participation, the tide is changing as they recognize the value to both sides.
On the lucky few occasions when an employee’s counsel can participate in a pre-termination investigation, the involvement is limited. However, there is great value to both the employee and employer in allowing employee’s counsel to observe the investigation interview. Recognize that discovery starts in this investigation phase and you can learn a lot about your case, your client and the company from the investigation even though you will never say a word.
Typically, the investigation is going to be about an issue that the employee has raised with company human resources about a fact pattern that they are experiencing in the workplace or maybe about something that they are accused of doing. In either instance, the employee has never experienced anything like this before and is ill-equipped to participate in the investigation effectively.
Representing an employee, regardless of the fact pattern, requires some patience and empathy. Whether the employee is at fault or there is something else going on, i.e. discrimination, harassment, or retaliation, the employee’s counsel must begin with an explanation about what the employee should expect during the investigation. Demystifying the process will go a long way to helping your client cope with the stress and anxiety that they are feeling. Take them through a step-by-step description of how the meeting is likely to go. Review “deposition” type instructions such as making sure they understand that even though they are not being sworn in, they must tell the truth. Particularly if the investigation relates to a claim that the employee has raised, the employee must be open and forthright about the basis for their claim, the facts, witnesses and documents that support their assertions.
Theoretically, this will allow a truly neutral investigator to go back to the company/supervisor/alleged bad actor to ask for more information about their side of the story. The employee must also understand what is happening to them. This means you must have a detailed understanding of the facts and claims being considered by the investigator as you prepare for the interview. In most instances, especially where the investigator is focusing on allegations raised against your client, you will have very little information about the specifics of the complaint. This is going to require a detailed, in-depth understanding of what has been happening to the client in the workplace to allow you to anticipate the acts that the client is being accused of. In some circumstances, your client is going to have to reveal sensitive information about themselves and the fact pattern, fearing judgment and disapproval from you. You will need to build trust with this client to ensure that they are telling you the good, bad and the ugly so that you can appropriately prepare them for what lies ahead.
Preparing the employee for an investigation interview is critical. Your client must understand that their recollection of the details of key fact patterns, which may have taken place many months ago, is important. While they may not know the specific questions being asked of them, they will have a general idea and recollection of points of conflict and must be prepared to answer questions regarding those instances. The employee should ask the investigator about what they can do to prepare, i.e. review documents, emails and produce information to the investigator. In most instances, the investigator, with full access to the company information, is going to ask about what the employee has in their possession and direct the employee not to take or do anything else to prepare.
Top 5 Interview Preparation Tips
- Employee’s Counsel’s Role: Unlike a deposition, objections for relevance, scope, form of questions etc. are not permissible and you will be little more than a fly on the wall. Make sure the investigator knows that you have every intention of respecting the process and will not interfere with the questioning. Similarly, make sure that your client understands this as well. Unlike what they see on TV, there will be no fireworks and “a-ha” moments but rather, quiet strategic decisions that you and the client will make following the interview.
- Employee’s Role in the Investigation: Your client must understand the importance and impact of the investigation. In most instances, they are the target of the investigation, which is likely to culminate in a termination or in a finding that the claims that they have raised against a supervisor or the company are without merit. The employee must understand the lay of the land to be an effective participant in the investigation and to properly protect themselves against false or misleading allegations being raised against them. Don’t forget that they are new to the process and are terrified that they are going to be fired. They must understand that they must tell the investigator the full story so that the investigator is armed with all of the details necessary to conduct a fair and balanced investigation.
- The Investigator: Often the investigator is an internal human resources employee. From the employee’s perspective, this person is an adversary; their role is to determine the extent of the company’s exposure/risk by ascertaining how much the employee knows about what is happening, to discover all bad facts that will hurt their client (the company), and to assess the employee’s credibility and ability to participate in an adversarial proceeding. Many investigations may result in the employee’s termination or in a finding that the employee’s claims against the company are without basis. Investigators notes, recordings and reports are discoverable under Payton v. New Jersey Turnpike Authority and should be requested during discovery. In Payton, the Appellate Division reversed the trial court, finding that the plaintiff was entitled to see the investigative reports and notes relating to an internal investigation to assess the company’s response to the internal complaint. While you can discover the investigator’s notes and report later in litigation, you should take detailed notes of the interview so that you can (a) compare it to the investigator’s notes to verify accuracy and ensure that topics being referenced in the notes and report were actually covered in the investigative interview; and (b) review the discussion with your client immediately following the conclusion of the interview.
- Document Review: The employee should ask the investigator how they should prepare for the interview; i.e. should they download company documents to show to the investigator, should they review anything ahead of time, etc. In some instances, the employee may not know the details of the complaints raised against them, making it impossible to effectively prepare. The investigator may also ask about fact patterns that may have taken place many months ago, making the process unfair if the employee is not able to review documents or know about the fact pattern ahead of time. However, employees must be very careful and ask for permission before accessing, downloading and printing any company information, especially confidential or proprietary documentation, as that may result in grounds for termination. While employees are generally just trying to be helpful and informative, they may inadvertently commit some act which may give the employer grounds for termination. The employee must understand that this is a minefield and that they must follow the investigator’s instructions regarding how to prepare for the interview.
- The Debrief: The debrief is as critical as the preparation phase and should not be taken lightly, even if you were only retained to guide the client through the investigation. In listening to the questions being asked by the investigator and your client’s responses, you may realize that the fact pattern presented to you by the employee has some significant gaps. Similarly, you will get a preview into the employer’s arguments of what constitutes a “legitimate business reason” for the termination under the burden shifting analysis. The investigator’s questions, especially surprising ones, should prompt a more in-depth discussion with your client to understand the scope of the fact pattern and its role in the client’s performance, allegations etc. While employees often believe, and will tell you, that they have a “slam dunk” case, it is your job to educate them on the law and how their facts fit in. Post interview, the picture will be much clearer than it was during the preparation phase and you must discuss the implications of the employer’s arguments.
Navigating Perceptions and Value in Investigations
In the employee’s perspective, the outcome of the investigation is already decided and the company is merely looking for justification for the eventual termination. The employee believes that the company almost always takes the bad actor’s side and hence, since the investigators are paid by the company, there is little or no chance that the investigation will be neutral. However, employees must also recognize that their participation in the investigation is necessary and a required part of their job, especially if they initiated the complaint.
As an attorney, the greatest value of being allowed to observe an investigation interview is the opportunity to watch your client in an adversarial situation before you are too far into the case. By listening to their answers, watching their demeanor, and assessing their credibility, you have a glimpse into how they are likely to perform during litigation. Doing this credibility assessment before litigation is likely to allow both sides to take a more balanced view of the case. In addition to vetting your own client, you have an opportunity to vet the theory of the case. Often, plaintiff’s attorneys only have meaningful insight into one side of the story, i.e. their client’s. Listening to the investigator’s questions will guide you some insight into a few of the employer’s arguments that you are likely to see in litigation.
While it seems counterintuitive, investigators should always allow employees to have counsel present during the investigation interview. The employee is likely to be calmer, more comfortable, and less confused, leading to more complete and thorough discussion. Counsel involvement early in the process may also have the effect of allowing cooler heads to prevail and to head off a potentially lengthy and uncomfortable litigation. Experienced counsel will know that they have a limited role in the interview and will respect the process, and experienced investigators will recognize that there is nothing to fear from allowing counsel to observe.