Workplace Investigations: Finding the Truth

by Toby Tiner, Jr.

Editors’ note: This week we feature a guest article. The editors of Maine Employment Law Letter think you will benefit from the practical insights of their colleagues. They have worked alongside Toby on many tricky employee-relations cases, and his ability to find the truth while treating employees respectfully has impressed them. Maine Employment Law Letter asked him to share some of his insights.

If you perform workplace investigations for your company, you are aware that many people are counting on you to find the truth. This article offers suggestions on how to approach some of the more challenging fact-finding interviews and ultimately uncover the truth.

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Pieces of the puzzle
If you enjoy challenges, think of a workplace investigation as a puzzle that you’ve been assigned to assemble. Your puzzle is missing some important pieces. But don’t worry. You have friends (employees) who hold the missing pieces. You simply have to convince them to share the pieces with you and help you complete your puzzle. The stakes are high. Everyone is counting on you, and you typically have only one opportunity to get it right.

Over the last 15 years, I’ve experimented with many different interview approaches, and because every person and every interview is different, I don’t advocate one single approach. Remember to keep an open mind, and conduct the interview as if it were a conversation with a new neighbor.

Preparation
Work and preparation are necessary in finding the truth. Once I’ve decided whom to interview and in what order, I find out as much as I can about the employees I’ll be talking to. You can easily gather information from employee files, past and present leaders, and interviews with other employees. Although I rarely refer to that information in the interview, I still like to know something about the person I’m talking with. Understanding an employee’s work habits and interests and obtaining a little insight into his personality can provide a preview of how he will respond to your questions. Avoid thinking about the end of the process and potential outcomes. It’s possible that the truth isn’t where you think it is.

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Location
Where you conduct the interview is important. You want to provide the employee with a comfortable place to talk. I’ve had far more success when the location was away from the employee’s normal work area, and I typically allow him to be seated by the door. Employees are more likely to share truthful information if they feel safe, comfortable, and respected. It also helps if they like you — even a little bit.

Introduce yourself
Your introduction is also important. Find a way to make a simple connection with the employee. Since most people enjoy talking about things they find interesting, I look for a connection that I may have learned from my background review. I find that having a connection point immediately makes both individuals more comfortable talking with one another. Employees who feel threatened will become defensive and, more often than not, stop providing information. Once you and the employee have moved past the natural anxiety associated with meeting a stranger, you can continue your search for the truth.

I follow the introduction by describing my role and my goal — namely, to find the truth. I also explain the employee’s role: to participate in the investigation and provide truthful information as an expectation of employment. I share this reminder in a nonthreatening tone — more as a review of the “ground rules” for all interviews. Remember, you don’t want to damage your connection point; you’ll need it later.

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Questioning
After you’ve reviewed your expectations about telling the truth, it’s important that you follow your own advice. Don’t claim to have evidence that doesn’t exist. If an employee finds out you aren’t being truthful, all credibility is lost.

I typically start by asking a few factual questions that I know the answers to. The goal isn’t to trick the employee, but you need to know that he’s following the ground rule. Obviously, deceptive responses at the outset suggest that he might be hiding something — perhaps the information you’re looking for. There’s a common urge to immediately explore deceptive responses. When I encounter such a problem, I like to wait and see what else the employee shares. The deceptive responses aren’t going anywhere. Keep asking questions, and return to them later.

There are a few staple questions that I always like to include (Is it possible? Is there a one-in-a-million chance?), along with some “what if” questions. As simple as they sound, I’m amazed at how many employees respond that something is possible when, if they truly aren’t responsible for the behavior, it would never be possible. Sometimes they include a possibility percentage in their response. A common response from an employee who is responsible for a violation is, “Well, anything is possible.” If an employee tells you that something is possible, don’t ignore it. What they’re often telling you is, “I am responsible for this violation, and I am almost ready to tell you.” Continue to be respectful, and keep asking questions about the possibilities.

Silence can be golden
Another staple I use is silence. Ask questions, but avoid telling stories. This isn’t your story to tell. Ask your question, allow a second or two to pass after the response, and maintain eye contact. It’s common for people to want to fill the silence. Obviously, you won’t always obtain a confession or receive an “anything is possible” response. Some employees take responsibility, regardless of the possible outcome. Others refuse to provide anything that might negatively affect them.

Assessing credibility
In a “he said/she said” situation, in which it’s one employee’s word against another’s and you have no witnesses, it often comes down to assessing credibility. You can do that by reviewing the facts of the case, interview responses, past behavior, and performance history. While many investigators focus on demeanor (e.g., Did he look up and to the left when responding?), I like to focus on what the employees said — and didn’t say. Were their responses credible, complete, and consistent? What does each employee have to lose or gain? What is the relationship between the two employees? Is there any history of deceptive behaviors in either person’s past performance?

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Reaching conclusions
Sometimes you’re left with an incomplete puzzle. In those situations, I inform the employee that I need to develop a conclusion with limited information. If I feel that an employee hasn’t provided all of the information he could have, I’m honest about those feelings. Occasionally, I return to the initial connection that we made, and I politely ask for more information and his side of the story. I’m open about when decisions will be made and the possible outcomes. I always share my contact information because I occasionally receive a telephone call providing the missing information just before the “decision meeting.” Sometimes employees just need time to weigh the risks and benefits associated with providing information.

Bottom line
The key is to treat all employees respectfully — just as you would want to be treated if you found yourself being interviewed. Treat them like you would a neighbor. That neighbor might just decide to give you the puzzle piece you need.

Toby Tiner works at L.L. Bean as an HR consultant and supports the company’s customer service department, which operates four contact centers in Maine. He is a tried and tested investigator who came to HR after a stint as a loss prevention investigator at L.L. Bean. He is also a licensed private investigator.