Last week, I had the opportunity to attend a seminar on Employee Investigations hosted by the NOVA SHRM chapter and presented by Michael Wade Johnson, CEO of Clear Law Institute and a former DOJ attorney. The seminar was great in highlighting the intricacies of conducting an effective employee investigation. Here are some of the highlights.
Calm Down…This Isn’t Law & Order
Have you ever watched TV detectives during an interrogation of a suspect wittingly come back with clever questions to suspect statements that in the end result in the suspect tripping themselves up and getting caught in their own lies? Or how about when detectives come right off the bat with evidence they have against someone, which often leads to the suspect confessing.
Contrary to what you see on television; employee investigations is nothing like that. Interviewers should use a relaxed and conversational approach in order to garner as much information from the subject as possible. An aggressive approach may cause your interviewee to “shut down” on you, hindering your ability to conduct a thorough investigation. Remember, during an interview it’s not about asking clever questions, but rather being a good listener and gaining the full story with minimal interruptions to the subject.
From the onset, establish a rapport with your interviewee by asking open-ended questions such as: What’s your position here at XYZ Company? How long have you been in your current role? Get them into the routine of talking and offering as much information as possible. Set the expectation at the start of your interview for your subject to narrate events with as much detail as possible, and remember: don’t interrupt them once they get going.
A good strategy to use when structuring your interviews is to save the most threatening questions for last. So what does that look like? Let’s say you’re investigating an event that has involved several employees and you know for a fact that Mandy was involved. When interviewing Mandy, first ask Mandy about Jane and Sue’s involvement and roles in the event, garner as much information as possible and then at the end circle back to the subject of Mandy’s involvement. This strategy will allow you to gain as much information up front without scaring your employee into clamming up early on.
The Othello Effect
Honesty. It’s one of those values that I do my best to live by, not because I’m some super moral person…trust me I’m far from it, but because I just plain and simply suck at lying. But you don’t have to be a great liar to be able to catch other liars at their game, you do however, need to let go of some of those preconceived notions you may have about how liars or truth-tellers may behave during the process of an investigation. Here are some ideas you may have thought differently about:
- Volunteering a lack of memory may be a sign of truthfulness.
- Liars will generally tell a [orderly] chronological story. Truth tellers will also present a chronological story but with more “jumping around” in the details.
- Liars tend to pause before answering a question.
- When lying the following factors are present in the subject:
- Strong Emotion
- Cognitive Effort
If you are tasked to conduct an employee investigation, it’s important for you as the investigator to remain “suspicious but not show suspicion” (Michael Wade Johnson, 2012) Remember to keep your interviews as relaxed and conversational as possible and as the investigator it is equally important for you to remain open-minded to avoid falling into the trap of the Othello effect, which can be easily done because of the “pop culture” surrounding interrogations.
The notion of the Othello Effect occurs during an interrogation or Q&A type situation. A person who is actually truthful may feel nervous, anxious, or generally worried that he or she will not be credible to the other person. In this situation, the person may exhibit fear, which can manifest itself physically and may even seem like nervous behavior a liar may exhibit when they are afraid of being caught. So, the innocent person may be perceived as being untruthful because of their behavior that simply resulted from being nervous about being perceived as untruthful…it’s quite the catch 22, isn’t it?
The Funnel Method
Once you have put together your strategy and are ready to proceed with your investigation, the use of the funnel method during an interview should be your choice method of sorting through the information collected.
The funnel method during an interview process should begin with a large overview of details. This goes back to setting the expectation with your subject to narrate events with as much detail as possible and for you as the investigator to avoid any interruptions during this process. This doesn’t necessarily mean you can’t redirect your subject if they stray too far from the topic, but if they are freely providing information that can shed light on related topics or issues to your investigation, let them go on for as long as they can, and ask them to continue to recall thoughts, details, etc. that they may have overlooked or missed altogether.
Once you have completed your general overview, now it’s time to start drilling down on the details. You can begin to ask the questions that will help you to gain further details and insights into events or issues that may have come up during the collection of information in the general overview process. This can be done repeatedly as necessary until you feel comfortable you have completed a thorough investigation. Keep in mind, this doesn’t necessarily mean that it needs to be completed in one sitting.
As employers, it’s important to ensure that you have selected the right investigator when it comes to employee investigations. A best practice is usually allowing a member of your legal team to conduct the investigations, however, if you decide to have one of your HR professionals conduct your investigations, ensure that they are compliant with any applicable state licensing requirements for the state you are operating in. For more information on Employee Investigations, check out Clear Law Institutes website for seminar and webinar offerings.
Michael Wade Johnson, E. (2012). Investigating Employee Misconduct (1st Edition ed.). Arlington, VA, USA: Clear Law Institute.
Categories: Compliance & Ethics