Somehow the new thing with our employees is to “protect their interests” in meetings. Almost every time we have a meeting, they want to bring a witness along and they want to tape record the meeting. Do we have to allow this? —Susan P., HR Director in Merced
We turned this tricky question over to Rhoma Young.
Your question is an interesting one that raises even more questions. What kind of meetings? Does this mean investigations? Does “witness” mean a person who might be accused of something or simply a person who may have information on the issue or just a friendly observer?
There is no one answer concerning employees’ rights to “protect their interests” because of the wide spectrum of meetings in which employees are involved. There is a difference between employee meetings for such routine issues as work distribution or regular performance evaluations and meetings involving investigations, discipline, or termination.
In the case of routine meetings, it would simply be too cumbersome to allow employees to bring in an extra person. And tape recording routine meetings is not usually realistic, unless the company does the taping to facilitate communication or preserve a record of the meeting. Also, in some states, including California, it is illegal to tape record communication with employees unless they agree, usually in writing.
If an employee makes a request to tape-record a meeting or have another person present, ask the person why. Then, use good judgment. If there seems to be a legitimate reason and allowing the recording or the witness will facilitate the discussion, you may agree. However, you must caution the employee about the need for confidentiality. (Note that if the person they want to bring along is also an employee, you may also have to deal with coverage and productivity issues.)
Confidentiality is key. In conducting a workplace investigation of harassment, for example, you want the parties to be comfortable speaking about sensitive matters during the interview. Also, it is probably not advisable to have others present or to tape record the sessions if the person being interviewed is simply someone who may (or may not) have information on the issue.
Usually, an employee will ask to have another person present or tape record a conversation only if he or she has a concern that discipline may be imminent. Unionized employees are entitled to bring a union representative to an investigatory interview conducted by an employer, if there is reason to believe the meeting could lead to disciplinary action. However, as of 2004, nonunion workers do not have a similar right to have a fellow employee accompany them to a meeting they believe could have disciplinary consequences. If the demand for a third party’s presence is a “deal breaker,” weigh the pros and cons. If this is a critical interview, and you cannot conduct the investigation or do not have sufficient information to proceed without talking to this employee, you may want to have a more flexible stance on the witness issue.
If you do allow the third party to attend, give the person a simple reminder at the beginning of the meeting that he or she is not to interfere as well as some basic ground rules. Establishing boundaries and expectations usually minimizes a third party’s tendency to become an active participant in the meeting or interview or to have the situation become contentious. An antagonistic interview generally won’t be productive. (If this should occur, the meeting can be recessed until things calm down or rescheduled to another time.)
What if the employee wants an attorney present? Many organizations refuse to allow this unless their own attorney is also present. The situation then often becomes very formal, and the meeting is unproductive.
Sometimes an employee uses the request to have a third person present as a tactic to stall a process and make scheduling more difficult. It can be helpful to be direct and say that timeliness is important, and you will not unreasonably delay the process just for the sake of a third party’s convenience.
If taping is a deal breaker, again, use your judgment. Most organizations only allow meetings or interviews to be tape recorded if they’re doing it for themselves and their own records. However, the employer may offer to make a transcript of the recording available to the requesting party. (It would usually be obtainable anyway via discovery if litigation ensued).
Another tactic that can be effective is to offer the person being interviewed the opportunity to take a look at the investigator’s notes at the end of the meeting-the person would then initial or sign the page to indicate that this occurred. Alternatively, the investigator can make a note that he or she offered to allow the person to take a look at their notes to ensure accuracy. This usually resolves any request to tape the interview.
As to policies, some organizations will want flexibility and some clear rules. If you want to have maximum flexibility about a third party’s presence, you will want to avoid a strict written rule. However, if you want everyone to know up front what the procedures will be, define the process in writing—earlier rather than later, when controversy might arise.
For taping, it may be easier for many organizations to define the policy before the question is raised. The key is to be consistent about who can tape what and when, and what will happen with the results.
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As with most workplace issues, no definitive answer easily fits each unique situation, but clear communication, consistent practice, and good sense will usually bring about a reasonable result.
Rhoma Young is founder and head of HR consulting firm Rhoma Young & Associates in Oakland.