What Do I Do if An Interviewee Asks for A Witness?
Aug. 7, 2021
What do you do if the interviewee asks for a witness? As attorneys always say, it depends. If the interviewee is a member of a union, they have a right, according to the Supreme Court of the United States, to have a witness. And so they need to get a union witness if they ask for one in the case that your interviewee is a member of a union. Otherwise, you need to know the policy of the client that you're doing investigations for. So if it is your client's policy to allow witnesses, then you can go get one. And if it's not, don't let them. If it is contrary to policy, you need to explain things to your interviewee like, "This is a workplace investigation. You're expected to participate robustly. Your employer expects you to participate in solving these issues." But there's a couple of categories of witnesses that we should probably talk about. So one that sometimes comes up with young people is that their parents want to participate in an interview. And that can be super tricky if they are minors. If the accused person that you're investigating is the minor, you want to tread super lightly. And I'm going to avoid giving you legal advice about that because that is such a unique situation. And you really do need to get external legal advice about that for yourself and for the clients. Hopefully, they've asked someone who is not you because you're a neutral charged with helping the client with that situation. Most of the time, however, it's very unlikely that the kid is your accused. And so if the kid is the person bringing the problem forward, perhaps your employer wants to allow a parent in the workplace. Most often clients do not want non-employees in their workplace affairs. And kind of speaking off the cuff and being frank, sometimes helicopter parents have a hard time with that. But by the time a kid is old enough to have a job they are usually old enough to answer some questions about their job. Other instances that can come up: witnesses want to ask for legal witnesses to participate. They want their own attorney to come in. And most employers don't allow that. Again, at the end of the day as the investigator, it is not your call to allow an attorney witness into the client's workplace. Your role is to be a neutral third-party investigator and to do an investigation in accordance with the client's protocols. But most employers don't allow employees to bring lawyer witnesses in. Some government employers do. So, again, it's really up to your employer client. The one thing that I will put out there, a lot of times people ask our witnesses because whatever's being discussed is really upsetting and they just sort of want that emotional support. And if that really is what it is, having a spouse in the room can sometimes still be a bad idea because of the intimacy of a marital relationship or a close, intimate relationship can interfere with disclosures about something that's being discussed. Maybe allowing a spouse in the room can be acceptable or letting an upset interviewee bring in a friend or a close coworker. If it really is just emotional support, somebody to say, "Hey, take a deep breath," or, "Hey, Natalie investigator, can we take a five-minute break? I can see your face is getting really flushed," things like that. But one idea that can really work if it is truly only an emotional issue is to bring in an emotional support dog. And so emotional support dogs are credentialed more and more often, but at the end of the day, an animal, and a dog in particular, can be incredibly soothing for all the reasons that they are allowed in most federal and state courts these days. But they also do not speak English. And so dogs never talk. They never spread gossip. And all they're doing there is being benevolent, emotional support vehicles for somebody having a hard time being an interviewee.