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Jon Yarbrough's The Employment Law Corner is the property of the Asheville Citizen-Times to whom we extend our thanks for allowing us to republish the article.
April 13, 2006: When faced with a lawsuit, a union campaign, criminal allegations, wage and hour issues or a host of other matters, how do you go about interviewing employees? What can you do and not do? How does your company protect itself from liability while respecting employee interests and rights? Employers must draw a fine line between fact-finding and coercion. Whether interviewing a complainant, aggressor, co-worker, manager or any other employee whose identity surfaces during an investigation, you must be careful not to intimidate, persuade, influence or manipulate the witness. And to ensure your employees are aware of their legal rights, it’s a good idea to prepare a simple written statement in advance to give all people who will be handling the interviews. A short script helps ensure that all employees are handled consistently and lawfully. Employee interviews should take place in a neutral environment, such as a secretarial office or employee break room. The purpose of the interview should be clearly communicated at the beginning of the meeting. Questions should be limited to subjects that legitimately relate to the stated reason for the interview, and they should focus on objective facts. Interviewers should never suggest that employees not participate in litigation, or if already participating, to drop the suit. A series of labor decisions requires that an employer read a statement of rights known as “Johnnie’s Poultry Warning” anytime an employee wishes to question an another employee about union/labor sentiments, issues and litigation. Ask your labor lawyer to familiarize you with the statement of rights before you begin the interviews. And if an employee makes it known that he or she is represented by an attorney, seek an opinion from your attorney before conducting your interview. Ultimately, judges and attorneys may be looking in their rear-view mirrors, Monday-morning quarterbacking and second-guessing the way you handled your interviews. To reduce the likelihood of future criticism and liability associated with your internal investigations, keep in mind that courts consider the following factors to determine whether an employer is coercive: • The employer’s historical attitude toward employees. • What information is sought. • The interviewer’s position at the company. • The conversational manner and setting. • The veracity of the employee’s answers. • Whether the employer had a valid legal reason for the communication. • Whether the purpose of the communication was conveyed to the employee. • Whether employees are assured no retaliation will occur for supported a union or litigation opponent. And remember: No matter how even-handed a company representative may be, employees perceive they are vulnerable because of their bosses’ control their livelihoods. Be careful what you discuss — even when an employee initiates a conversation. It’s all about business.
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