Keith Markel and Deborah Ringel, Dickstein Shapiro, LLP
1. Have a plan of action.
Having a script, outline, or list of questions before you meet with an employee aids in the entire process. It ensures that you do not veer from the issues at hand and that all pertinent questions are answered.
2. Provide the Upjohn Warning
Make sure you provide an Upjohn warning to the employee; that is, you remind the employee that:
- you are the attorney for the company or that you work on behalf of the company; you are not their lawyer or representative (unless otherwise stated); and the discussion you are about to have is subject to the company's attorney-client privilege, which the company, and not the employee, can choose to waive (or disclose to third parties).
3. Be Clear
Make sure that you are clear at the beginning of the questioning as to the reasons for the interview. This protects you, the company as well as giving the employee no misgivings as to why they are in the interview.
4. Bear Witness
Make sure that you always have someone in the room with you to document the Upjohn warnings, and contemporaneously memorialize the substance of the interview and notes for potential follow-up with this employee or others. Sometimes you may want to have the employee acknowledge that his or her statements memorialized in writing are an accurate reflection of the interview and/or that the employee acknowledges that he or she received an Upjohn warning at the outset of the meeting.
5. Involve No Interested Parties
Make sure there is no conflict of interest or appearance thereof between the employee being questioned and either the person doing the questioning or the person acting as the witness/scribner.
6. Know the Rules
Make sure you are familiar with the company's policies and procedures, as well as the relevant EEO laws before conducting an interview. Besides knowing, be sure that company policies are current, updated and in-line with Federal and State legislation concerning Equal Employment Opportunity.
7. Stay On Topic
Make sure that your line of questioning is focused on the issues relevant to the investigation and is consistent with other employee interviews with respect to the same issues or investigation. Working from a script will help you achieve this.
8. Stay Away from Protected Class Questioning
Make sure you stick to the facts of the inquiry and do not ask questions that relate to extraneous matters. Do not ask questions that go into protected areas (age, marital status, etc.) unless it is required for legitimate business reasons or safety reasons.
9. Remain Professional
Do not retaliate against an employee who reports unlawful conduct in any fashion. Not only is it inappropriate, it's illegal.
10. Inform the Employee of the Company's Confidentiality Rules
Make sure the employee understands the company's policy on whether the interview is confidential. If the identity of the employee or the substance of the interview will be disclosed, make sure you and the employee understand the parameters of potential disclosure.