Participating in a Workplace Investigation

Mar 2 2022

Stephen Fitzgerald: Hi, Nina.

Nina Pirrotti: Hey, Steve.

Fitzgerald: Hi, so I understand today you’re going to be talking about workplace investigations. What are some pointers that you could offer to employees who’ve been asked to participate in a workplace investigation?

Pirrotti: Well, Steve, I’ll start out by saying both you and I have backgrounds as prosecutors, right, so we’ve been investigating our own cases for quite some time before we became employee advocates and now we have an opportunity to see it done at the other end, where we’re actually scrutinizing the investigations that are conducted by others.

So, with that wealth of knowledge behind us, we do have some pointers that I think are very helpful for the employee who’s subjected to this very nerve-wracking process to keep in mind when approaching it, and they really fall into two buckets. The first is be prepared and the second is tell the truth.

So, let’s talk about the first one, be prepared. If you have not done so already via a complaint that you submitted to HR or to the appropriate body in your workplace, write out a chronology of the key facts, the key events, the key players, the key documents that are the subject of the investigation, and the more you do it in chronological fashion, the easier it will be for you to follow and then prepare properly for the investigator and the questions that she’s going to pose. So that would be my first suggestion. It is important for you to give some thought about who are the key witnesses that you want the investigator to review and what are the key documents that you want the investigator to consider as well, and to have those documents at the ready should the investigator call upon you to provide them.

Now, let me also say this – be a vessel for the truth, that’s my other maxim, and of course, we all say, “Yes, we’re going to tell the truth, nothing but the truth, so help you God,” but it is also true that when you feel wronged, there is a tendency to want to be an advocate for yourself, right? You want to step in there and explain your side of the story, anticipate maybe some questions that they might have that might be critical of your story, and maybe be even a little bit defensive about those, offer that up as well. And while there is a great temptation to do that, I can tell you, Steve, and I know you know this as well, that our experience says that all this does is backfire because the investigator then sees you as someone who has an agenda, as someone who is not neutral and you are much more likely to be given credence, what you say is much more likely to be credited by the investigator if you keep it as neutral as possible and just really stick to responding to the questions that the investigator asks and know just the facts then. That’s the approach we want to take in this.

Now that’s an overall summary of the two maxims that I like for my clients to understand before they head into these investigations.

Fitzgerald: Yeah, those are excellent, excellent pointers. So, do you have any advice for employees who are nervous they will forget something important at the investigation?

Pirrotti: That’s a great question Steve, and I think it’s very important to know that unless you are a professional witness, you are going to be nervous in this context. There’s a lot at stake, and if it’s your claim and you want to make sure that it’s fully heard, you may be especially nervous. So, there are a number of different routes you can go on, and obviously, I would recommend that you consider consulting with an employee advocate, an employment lawyer who’s well versed in investigations. They can help in a number of different ways.

First of all, they can actually participate in the investigation itself as long as the investigator permits this. So the person who’s going to be sitting in on the interview can ask the investigator, “Is it okay that I bring my lawyer there?” Some will say sure, most will say “Sure, but in those instances, we want to make sure your lawyer is just a silent participant.” Now, what value is there to have a lawyer just be a silent participant? Well, the investigator is likely to be on her best behavior if she knows she’s being watched by someone who knows what they’re doing, first of all, and second of all, I’ve done many of these where I’ve sat in as a silent observer, and as long as I have that be my primary role, if I feel that a witness has misspoke or misunderstood the question or that there needs to be greater context or clarity provided to the investigator, I will wait for the appropriate moment that maybe even at the investigation and say, you know, “Ms. or Mr. so and so, I know when you addressed this particular topic, I think my client could expand upon this a little bit more in a way that would gain some greater clarity. Would you allow her that opportunity?”

Now, what if the investigator says, “No, you can’t have your employee advocate here?” Well, remember when I was talking to you about that well-written, thoughtful chronology that you’ve prepared that identifies all the key events and the key facts and the key witnesses? First of all, you could certainly consult with a lawyer in preparing that document behind the scenes before you ever go to the investigation. Consult with a lawyer and have him or her weigh in, is it well-written, is it concise, does it go down any rabbit holes, does it appear to be neutral, are you sure that you are including everything that you need to include to convey the magnitude of the situation to the investigator? But, second, when you’re at that investigation, you could bring that document with you, and you could ask the investigator, if you are getting nervous, if you fear you’re going to forget something, “Would you mind if I just check my notes and see if I’ve left anything out,” or, “I’m a little bit nervous here, would it be okay if I refer to my summary,” and “I want to make sure that I got that sequence correct that I’ve just described to you.”

Now, at that point, the investigator may very well say, “Well, yes, but I’d like to see that summary, I’d like to see those notes,” but if you’ve done a really good, thoughtful job in preparing them, maybe even with the insight from a lawyer, you’re going to have no problem turning over those notes, because those notes are going to be the best summary of everything that goes on, done in a time when you’re not feeling under the gun and the pressure that you might feel when you’re in the moment at that very stressful situation that is the investigation. So those are some of the thoughts of what the witness can do to maybe arm themselves with information that may very well assuage their concerns of what is otherwise a very fraught situation known as workplace investigations.

Fitzgerald: Yeah, great. I think it’s fair to say that most employees don’t have a lot of experience with workplace investigations, thankfully so. If you or a close friend or family member is facing a workplace investigation and you need some advice beforehand or during, you should reach out to us here at Garrison. Thanks, Nina.

Pirrotti: Thank you, Steve.

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stephen fitzgerald discussing workplace investigations

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