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The Witness Files: The Reluctant Innocent Bystander

Persuasion and coercion in workplace investigations

Posted by Bill Nolan on June 11th, 2013

Last month I wrote about Carl, a compliant but clueless manager guilty of inappropriate comments but sincerely willing to change. In some respects, Carl was a relatively easy case. This month we will discuss Ruby, the third party we know has important information for the investigation we are conducting, but is reluctant to share it with you, the investigator.

He Said, She Said

Why is Ruby important? Many workplace investigations involve unrecorded personal interactions about which two protagonists have very different recollections and/or reports. Even in this electronic age where more and more personal interactions are, for better or worse, memorialized in various ways online, there are still of plenty of “he said, she said” situations. If these protagonists are our only two witnesses about this interaction, and neither provides an obvious basis for questioning his or his credibility, it can put the investigator and the employer in a difficult situation.

Consider the most common such scenario, the complaint of sexually inappropriate conduct by a supervisor towards a subordinate. If we believe the supervisor, at least to some degree we inherently do not believe the subordinate and do not act on her expressed concerns, at least as much as she would like. If we believe the subordinate, at least to some degree we inherently do not believe the supervisor and take remedial actions against him. Either step has potential liabilities, the first to the subordinate, the second to the supervisor.

Another Viewpoint

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While there are strategies for balancing the competing concerns in such a stalemate, as an investigator seeking to determine what really happened, that objective is aided by having somebody who has observed interactions between our two lead characters. When somebody says, “You should talk to Ruby, she was there,” talking to Ruby becomes critical. Every witness’ credibility must be scrutinized and Ruby is no different, but on its face Ruby is the closest thing to a disinterested witness you will have. That is not to say either of the protagonists’ credibility is suspect, it is not, but both are deeply invested in the outcome of the investigation in a way that Ruby probably is not.

But Ruby does not always want to talk. Ruby may report to the same supervisor as the complainant and be concerned about her own job if she provides information that may be harmful to her boss. The flip side may be true as well. While the subordinate lacks the ability to directly influence Ruby’s job the way the supervisor might, Ruby may consider her a friend. If Ruby feels the subordinate’s concerns are not well founded, she may be concerned about being perceived by the subordinate or colleagues as somehow being disloyal. Or, Ruby may simply “not want to get involved” – few who are witnesses to a car accident are glad that they were and that they will need to be involved in various proceedings that do not directly concern them. It’s inconvenient.

Building Rapport

Usually pleasant persistence and persuasion is the place to start with Ruby. “There have been some concerns expressed and the company has an obligation to follow up on them and determine what happened. I just need a little of your time and help to do what the company has asked me to do.” This approach can make it more of a personal matter between you and Ruby. She may be more likely to help you as an individual than she is to help out “the company” or a faceless process. It is harder to say “no” face to face to a person than it is to an unseen entity or thing.

This scenario highlights the importance of building rapport in an investigator’s toolbox. In certain situations that we expect to involve one or more Rubys, it may also counsel us to select an inside rather than outside investigator, because an inside investigator may already have such a rapport with Ruby and can draw on a reservoir of positive interaction to draw her out. An outside investigator may have more difficulty in doing so. This is but one factor in selecting the right investigator for the situation, but warrants consideration.

Using Coercion

Regardless of the investigator, if persuasion does not work, some degree of coercion may become necessary. Ideally the company’s inappropriate workplace conduct/harassment policy states that all employees have an obligation to cooperate in workplace investigations. (If you do not know that your policy has such a statement, go check now! This is an easy and potentially valuable fix.) If it does, tell her that. Even if it does not, employees have an obligation to follow lawful directives from their employer and, yes Ruby, the employer is making you have this conversation. And while you are telling her this, give her the same assurances against retaliation that you are giving the complainant, and memorialize that you have done so.

This element of coercion must be balanced with our goal of obtaining as much information as possible from Ruby in order to have the most thorough possible investigation. If we have gone this far, Ruby probably is not going to really spill her guts to us, but you never know. Thus, to the extent we can keep Ruby somewhat comfortable while still forcing her to do something she does not want to, it will maximize the amount of information obtained.

Rarely does it get to the point where Ruby still won’t talk. Actually disciplining her for failure to cooperate can certainly be delicate under these circumstances, but the employer needs to maintain the integrity of the investigation process. If you are not consulting with counsel about your investigation already, you will want to do before taking that step with Ruby.


Bill Nolan
Bill Nolan

Managing Partner, Ohio office of Barnes & Thornburg LLP

Bill Nolan opened Barnes & Thornburg's Ohio office in April 2009, seeking to bring a unique energy, geographic platform, and business model to the Ohio legal market. He strives to bring attentiveness and clarity to employment, contract, and other disputes, and on helping clients build teams, policies and processes to minimize the frequency and severity of disputes.

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