When an employee was accused of defrauding her company, Bill Kowalski was called in to conduct an investigation interview.
But by the time Kowalski arrived, management at the company had already questioned the woman — a mistake that prematurely alerted her to the investigation and gave her time to delete evidence.
“She was filing false invoices from a false vendor,” says Kowalski, a former FBI agent who currently heads up the corporate investigations division at Rehmann.
As someone who is often called in to “clean up” mid-way through investigations, Kowalski is well-aware of the common mistakes made in the interview process that can potentially lead to wrongful termination or even false imprisonment claims.
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Apart from a third-party investigator, Kowalski says getting HR involved in the investigation is the best way to ensure investigation interviews can’t be construed as intimidating.
After spending hours developing a level of trust, Kowalski says interview subjects will often ask the investigator, “If I tell you something, what’s going to happen to me?” The wrong answer, in this case, is to make promises, Kowalski says.
Promises that, for example, an employee won’t be fired, or the case won’t be referred to law enforcement, allow for the suspect to later argue that their confession was coerced. Or, an investigator might be forced to break their promises to a witness or a suspect after submitting their findings to a business owner or CEO.
“You might get a confession, but you walk out and tell the CEO you’ve promised the employee could keep their job,” Kowalski said. “But the CEO says ‘I want them out of here.’
“I’m always thinking in terms of future litigation,” he said. “Judges in litigation don’t like unfulfilled promises.”
Interviews are for Fact-Finding
When confronted with malfeasance inside their company, the business owner’s natural response is to ask the accused “why did you do this to me?” Kowalski says. But making accusations, without the evidence to back it up, can dramatically impede the investigation.
“When you realize you’ve been stabbed in the back … emotion rules over prudence,” Kowalski said. “That’s a mistake … Interviews are for fact-finding, interrogations are for law enforcement.”
Making accusations before the fact-finding process is complete not only lets the perpetrator know an investigation is underway, but also risks alienating innocent people in an organization with false accusations.
Infringing Employee Rights
If corporate policy calls for a union rep to be present during an investigation interview, forgetting to call the rep could nullify any progress made during the interview.
“Your first concern should always be what rights does [the interview subject] have?” Kowalski said.
Employees can accrue different rights based on standards set out by the National Labor Relations Board, so Kowalski recommends consulting legal counsel before any interviews during an internal investigation.
Blocking the subject’s access to the door is the most critical mistake any interviewer can make. If the subject can prove they were held in a “custodial relationship,” an investigation can backfire and the company can end up facing charges.