Published on June 23rd, 2015 by Alan L. Sklover
“He who asks questions cannot avoid the answers.”
– Cameroon Proverb
ACTUAL “CASE HISTORY”: Celeste was at the end of her rope. For 12 years she had worked as a Senior Sales Manager for a large handbag manufacturer, and had risen over time in title, responsibilities, and compensation. To say that she was highly regarded and universally admired by all who she worked with would be an understatement.
Recently, though, her employer instituted a new policy: all Purchase Orders had to be reviewed by Divisional Sales Managers for “accuracy.” Celeste was puzzled because she had never, in her 12 years, heard of “inaccuracy” in the Purchase Orders she submitted, or those submitted by anyone else. Not once. Regardless, she complied.
Shortly after, Celeste began to notice that Purchase Orders were being “corrected” by increasing the sales price by a few percent, and decreasing the large-order discounts applicable to those sales. Worried about customer complaints, Celeste inquired about the “corrections” with her Manager; she was told that it was not her job to manage her Manager.
Sensing that something was not right, Celeste called the (supposedly) confidential “Integrity Hotline” telephone number in her Employee Handbook, and left a message questioning the new “corrections” policy. Within two days, Celeste received an email from General Counsel’s office to requesting that she attend a meeting with an Outside Legal Counsel without being told the purpose of the meeting.
Celeste sensed that she had better “play” this carefully, and that this could come back to “haunt” her in one way or another. And, so, she called us for a consultation. It was good that she did, because the “meeting” was to investigate her — and her “false allegations.”
LESSON TO LEARN: At work, every now and then someone finds it necessary to question, object, or complain about something that is simply does not seem right, legal or tolerable. It could be workplace violence, a danger to health or safety, illegal behavior, bullying, harassment, discrimination, retaliation or any number of other things.
Whether it is you who filed the complaint or someone else, you might be called in to answer questions of an investigator from (a) Human Resources, (b) Employee Relations, (c) internal legal counsel, (d) outside legal counsel, or (e) some combination of these people.
Most importantly, you need to understand that, as an employee, you have an obligation to cooperate in any investigation, whether or not you believe it affects you and whether or not you want to.
But questions remain, most commonly (1) “How should I prepare?”, (2) “What should I do or say?”, (3) “Can I bring a lawyer with me?” and (4) “Could I be hurt in some way by what I say?” Because your job and career might be on the line, it is unquestionably a stressful and tricky situation.
WHAT YOU CAN DO: Based on our many years assisting in such matters, here is what we advise our clients:
A. Before the Interview Meeting:
1. First and foremost, if you are employed by an employer, you have a duty to attend such an investigative meeting. An employee has a duty to reasonably cooperate with his or her employer in all aspects of the employment relation, and most importantly in investigations of complaints. If the persons who contacted you are officers or representatives of your employer, their directive to attend an investigative meeting is one you must “obey.” Not doing so is capable of being characterized as insubordination, which is recognized as good “cause” to fire you.
2. Second, bear in mind your goal: to have the investigative meeting serve YOUR interests, whatever they may be. If you are the person who filed the complaint or objection, do you want the discrimination to stop? If retaliated against, do you want your old job back? If your boss is sexually harassing you, do you want her to cease doing so? If you are not the person who filed the complaint or objection, then do you want to support that person? Stay out of the fray? Give serious thought to what your own goal may be, and consider carefully what position, stance or posture would be best to support your goal.
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3. Before attending, in an email ask for the following “procedural” information: (a) purpose and agenda of the meeting; (b) its date and beginning time, (c) its location, (d) its participants, (e) whether there will be a tape or video recording made, or a stenographer present, and (f) the anticipated length of the meeting.
4. Bear in mind the two purposes of the meeting from your employer’s point of view: In these circumstances, the purposes of the meeting from your employer’s point of view are almost always: (a) to determine what degree of “risk” your allegations may pose to the company or its executives, and (b) to reduce, defuse, counteract, “hide” and/or “bury” that risk in the files of the interviewer, especially if the interviewer is an attorney (who can claim that the documents and/or information is “privileged.”)
They very much expect to come back and say, with a straight face, “We found insufficient evidence to support the allegations.” Sadly, these investigations are often a complete charade.
5. If you were the person who filed the complaint or objection, you have your own two distinct goals for the meeting: (a) To demonstrate the high degree of “risk” your allegations might represent if your claim was elevated or litigated, and (b) to let the company’s representatives know that they will not easily “hide” or “bury” that risk by “hiding” or “burying” the information and documents inside their “privileged” files.
6. Will your employer have an attorney at the interview meeting? It is strongly suggested that you determine beforehand if there will be any attorneys representing your employer (in-house or outside counsel) present in your interview meeting (in person or on the phone), and if so, that you arrange for an attorney to attend your interview meeting on your behalf (in person or on the phone).
7. If you have an attorney, it is unethical for the employer’s attorney to speak with you outside your own attorney’s presence. Understand that you do not have a legal right to have an attorney present with you in any workplace-related meeting, BUT it is a legal ethics rule that (i) if you notify the employer’s attorney (in-house or outside counsel) that you have an attorney regarding this matter, (ii) then the employer’s attorney will be violating an ethics rule by being in the room without your lawyer being present.
8. If you want to bring notes with you to remind yourself of what you want to say, keep those notes in your pocket, wallet, briefcase or handbag, and do not let the Human Resources representative or the attorney(s) for your employer review them. Don’t be afraid to check your notes in the ladies’ or men’s room, or during a short break.
9. If you are the person who filed the complaint, objection or report, you must be prepared to discuss the facts, events and circumstances that led you to file it: If you filed the complaint, bear in mind that there are four general kinds of evidence you can put forth to support your complaint: (i) documents and emails; (ii) your own testimony; (iii) the names of others who you believe will be able to corroborate what you have said, and (iv) circumstances that tend to suggest what transpired. For example, if you believe you were not given a promotion because of your gender, point out that the top 32 managers in the company are all the other gender, which would be difficult to call a “coincidence.” Gather these things together, rehearse your testimony, and give it your best.
10. If you are the person who filed the complaint, be prepared for questions about (a) your “motives,” and (b) “what it is you want.” Your motive, if asked, is to be honest and to make things right. As to “What do you want,” it is my suggestion that you usually respond “I need to think about that; I will get back to you,” and then to give yourself time, without being on the spot, and later respond to that in an email.
B. At the Meeting
11. Try to arrive at least a few minutes early, so that you have at least a few minutes to become comfortable with your surroundings. If it is hot, cold, too sunny or otherwise uncomfortable, do not be timid in asking for your surroundings to be made more comfortable.
12. Do all you can to present and preserve a polite and professional demeanor, no matter how aggressive, hostile, demeaning or unpleasant the questioner may be. In my experience, most interviewers in this circumstance will be pleasant and polite, but there are exceptions to that rule.
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13. Do NOT bring any documents with you to the meeting: If you feel that it is important, necessary or helpful to show company documents or emails to the company’s attorney, send them by email before the meeting to make a permanent record of what you provided. You can send them by email after the meeting, too.
14. “That would be against company policy, and I don’t violate company policy” is the ONLY response you should give to “Do you have any documents or emails at home, or did you give any to anyone?”
15. Dress Neat and Casual: There is no reason why formal business attire is necessary, and your comfort is important.
16. Listen VERY CAREFULLY TO EACH QUESTION before answering. And pause a moment to make sure you understand what is being asked. If the question is not precise, DO NOT PRESUME you “kind of” know what is being asked. If you are not certain, ask that the question be rephrased. This CANNOT be underestimated.
17. “I am sorry but that is inappropriate and irrelevant” is a fine answer to any questions about your personal life, your career ambitions, your finances, and the like. If it does not seem relevant, just say so.
18. Do not offer more information than asked for, or wander off the specific subject of the question, or offer your opinion or view on subjects. STICK to the question, and STAY on top of the answer. While you may want to explain things that are not being asked, you are more likely to cause a problem by doing so than prevent a problem.
19. Do NOT answer any questions that would entail you telling others what you said to your attorney, or your attorney said to you. Either you or your attorney can simply and calmly say, “I am sorry, but that calls for the sharing of privileged communications.”
20. “I don’t understand the question” is a proper response whenever you are to any degree uncertain about the wording – or meaning – of a question, no matter how many times you need to use it.
21. “Would you please repeat the question” is also an entirely appropriate response to unclear, convoluted or multipart questions.
22. “I don’t recall at the moment” and “I need to think about that” are responses you can use whenever you are not certain of the answer.
23. Always feel free to request a bathroom break, either (a) to gather your wits, (b) to use the bathroom, or (c) to speak with your attorney in the hallway.
24. If you get very uncomfortable, and would really rather go home, first raise a “physical malady.” Because of the employee’s duty to cooperate with investigations, an employee who walks out in the middle of such a meeting can easily be deemed to have acted insubordinately, and fired as a result. But you have a “free card” out of such a meeting, without penalty, if you wish: raise a “physical malady.”
Saying, “I forgot to take my heart medicine, and I am having chest pains; I must go home,” is one. Saying “I must have eaten bad seafood last evening, because I think I am going to vomit” is another, And, of course there are many others, including migraine headaches, dizziness, diarrhea and menstrual cramps. When you arrive home, make sure to send an email note to your interviewer thanking him or her for being sensitive to your physical malady.
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C. After the Investigative Meeting
25. After the investigative meeting, it is often wise to “repeat” the evidence in an email to the Interviewer: This serves to both (a) counteract the employer’s tendency to claim “we found no (or insufficient) evidence to support the claims, and (b) make a permanent and digital record of the evidence presented at the investigation meeting, in effect, to counteract what is described in Paragraph 4(b), above.) This also provides a “second bite of the apple” regarding submission of testimony.
To confirm and make a record of what took place at your Investigative Meeting, after you have reported discrimination, harassment or hostility, we offer a “Model Letter Memorializing What Took Place at the Investigative Meeting.” To obtain a copy of this useful model letter, just [click here.] Delivered by Email – Instantly!
26. After the meeting, if your attorney was present, he or she should “debrief you” and share with you his or her view of how you did, and the wisdom of “adding to the record” if anything you wanted to say, or your employer wanted you to say, did not come out at the meeting. This should be done – like all other communications noted above – in an email.
These 26 Pointers may not all be applicable to your situation, but they should nonetheless be considered for how they might helpful to you. Interviews after complaints are filed are some of the most difficult work experiences to navigate.
P.S.: For individual attention and assistance, Mr. Sklover is available for telephone consultations lasting 30 minutes, 60 minutes, or 2 hours. If you would like to set up a consultation, just [click here.]
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. Wisely navigating post-complaint interviews is one important part of path to job and career success.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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