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Using a Pre-Interview Statement in a Workplace Investigation (Part 2)

Completing documentation before interviewing the complainant and alleged wrongdoer can help support the employer’s story later

Posted by Bill Nolan on October 29th, 2012

In my previous post, I discussed the potential importance of simple pre-interview statements to be signed by witnesses to bolster the employer’s ability to tell the story of a well done investigation later. These forms can help avoid some of the following attacks on an investigation:

  • The complaining party later claims the company did not address certain complained-of behavior, but the company in fact was not aware of that behavior.
  • Retaliatory action is taken (or not taken but alleged) by a subject of the investigation or other individual during or after the investigation.
  • The subject of the investigation claims that his or her reputation was damaged by the company during the course of the investigation.
  • The subject of the investigation claims that the company was on a “witch hunt” and the outcome of the investigation was a foregone conclusion (e.g. in a discrimination lawsuit arising out of a job action against the accused).

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The post gave a sample pre-interview statement of a third party witness, designed to set the stage for demonstrating in subsequent litigation that the employer:

  1. did not come into the investigation with a foregone conclusion
  2. ensured confidentiality (mindful of recent National Labor Relations Boards guidance on this topic)
  3. ensured reporting of potential retaliation

Similar acknowledgements for the complainant and the accused accomplish these and other things as well. (Lines for signature and date are admitted.) Comments corresponding to the square-bracketed numbers follow at the bottom.

 Pre-Interview Statement: Complainant

 [1]  I, ___________, have made a complaint to the Company concerning the conduct of ______________.  I understand that the Company has determined that it has a legal obligation to investigate this complaint.

[2]  I understand that the purpose of today’s meeting with __________________ is to gather information concerning my complaint and to give me an opportunity to fully discuss my complaint.  I agree to share any and all concerns I have about conduct towards me by _____________ with the Company today.

[3] I agree not to discuss this matter with any member of the Company community.  [4] I understand that no Company employee is permitted to retaliate against me for participating in this investigation.  I agree to bring any conduct I perceive to be such retaliation to Company’s attention so that it can be promptly addressed.

Pre-Interview Statement: Alleged Wrongdoer

 [1]  I, ______________, understand that the Company has received a complaint about my conduct from __________.  I understand that the Company has determined that it has a legal obligation to investigate this complaint.

 [2]  I understand that the purpose of today’s meeting with _________________________ is to share with me the allegations that have been made and to give me an opportunity to fully respond.

 [5]  I understand that the Company has not yet made any conclusion as to whether facts stated in the complaint against me are true or as to whether I engaged in any inappropriate conduct.  I understand that the Company is attempting to determine what happened so that it may respond appropriately to the complaint.

 [3]  I agree not to discuss this matter with any member of the Company community or to [4] take any action that could be construed as retaliation against any member of the Company community for making a complaint or for taking part in this investigation.


[1] As with the third party statements, setting forth that the company is simplify gathering information and not rushing to judgment. This is somewhat shorter for this hypothetical complainant, as the concern of a defamation action or related claim from the alleged wrongdoer is more likely to be based on communications to third parties.

[2] This statement by the complainant helps the investigator avoid the “moving target” issue, i.e., you think you have completed an investigation only to hear later that the complainant has additional concerns not brought to your attention. Like all of these statements, by itself this statement does not avoid this problem, but if the complainant signs off on this statement it makes it more difficult for her to later claim the company did not address all of her concerns. (Of course you will also want to document the contents of the interview to further document you have obtained all of the complainant’s concerns.)

[3] As with third parties, maximizing confidentiality to the extent possible. This is equally important with all witnesses.

[4] Retaliation is particularly important with the complainant and the accused.

[5] Similar to point [1], but make it clear the accused is getting his “day in court” in the investigation process. If he has a different story, document that he is being invited to tell it now.

Employers should discuss with their own counsel whether such acknowledgements are helpful in their particular investigation and, if so, their specific contents. These samples are very simple, and are very similar because in large part they just reiterate the same basic points in slightly different contexts. But hopefully these samples provide useful points of discussion for documenting that you followed good practices in your own investigations.

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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