Tips for Giving a Statement in an Internal Investigation

7/26/2019 Tips for Giving a Statement in an Internal Investigation

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Jim GarrityFlorida & Georgia Employee Rights Lawyer*

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What to Do If Your Employer Demands that You Give AStatement in an Internal Investigation

If you are suddenly approached on the job and instructed to give a statement as

part of an internal investigation, consider these thoughts in decidinghow to proceed.

DISCLAIMER: THESE ARE GENERAL RULES, NOT LEGAL ADVICE. EVERY

SITUATION IS DIFFERENT. USE THESE AS BACKGROUND INFORMATION.ASK A LAWYER IF YOU NEED SPECIFIC ADVICE.

1.

If you are a current employee, you are generally required to cooperate.Your employer may be able to fire you if you don’t. The general rule in

Florida and Georgia is that an employee is required to cooperate with internalinvestigations. Refusing to do so can give the employer a legitimate reason to

terminate you.

2.

If you are a former employee, you are generally not required tocooperate. Some employers will reach out to you even after you’ re no longeremployed, and lead you into believing that you must cooperate with an

internal investigation. This is generally not true. In most circumstances, I donot recommend cooperating with a former employer. If you have asserted aclaim against the employer, the most likely reason for the request is to gatherinformation to defeat your claim. If you have not asserted a claim, it is

possible that anything you say could become relevant in someone else’ slawsuit. You may have no legal protection against claims for defamation orslander if you say something in an interview like that when you have no legalobligation to do so.

3.

If ambushed and asked to give a statement without any prior warning,ask that the appointment be set for later in the day or some other day.

Use that time to gather your thoughts and to review documents. You shouldalso ask what the topics will be so that you can properly prepare.



4.

If ambushed and instructed that you must give a statement immediately,

use extreme caution in what you say. Most of these statements arerecorded and will be preserved for years. It may not be obvious in the future,from a review of your statement, that you were forced to give a statementwithout warning. Answers that are wrong may hurt you. Be sure if you areforced to answer questions without warning that you clearly state on the

record that you were not given notice about the interview and that youranswers might be different or more complete if you had been given notice. Askthe interviewer while the recorder is running why you were not given anynotice. Use the recording to your advantage by documenting the unfairness ofthe situation.

5.

Ask that there be no recording of the statement and that the interviewer just take notes. If your employer refuses, use your own recorder tocreate your own copy. There is generally no legal obligation for an employerto give you a copy of your own recorded statement. So make your own. If theemployer refuses to allow you to make your own, be sure to mention this onthe record while the employer’ s recording is running and also ask that youremployer provide you a copy (“I want to note for the record that I asked you toallow me to record this independently and you refused. Can you tell me why you refused? And will you provide me a copy of this complete interview within24 hours?”)

6.

Watch out for unusual behavior during the interview. Be sure to mention(while the recorder is running) any unusual tones of voice, facial gesturesor other behaviors. Remember that the recorder will only capture the soundof voices (unless it is a video recording, which is very rare). So yourinterviewer may do things during the interview to agitate you that will not becaught on the recording. Be sure to speak up and note each time you observe

it. In some instances, I have been told by employees that the investigator orinterviewer rolled their eyes, smirked at them, or leaned very close to them forthe purpose of making them uncomfortable. In one case, an investigatormoved his chair around the table to sit knee-to-knee with my client. It was anintimidation tactic, and my client was smart enough to describe out loudexactly what the investigator had just done. Keep in mind that somerecordings will disappear and the only thing that remains will be a printedtranscript of the conversation. So even tone of voice cannot be capturedunless you speak up (such as, “Why are you raising your voice at me? Why

are you laughing at me? Why did you just move your chair so that you aresitting inches from me?”)

7.

If you are unsure about an answer, say so. Do not guess. The fact that youare asked a question does not mean you know the answer. It is not beinguntruthful to say that you do not know the answer if, in fact, you do not knowit. Resist the urge to give an answer simply because you feel pressured to do

so. If you know the answer, say so and answe truthfully and completely. But if you don’ t know, or are simply being asked to guess, say that you do not know.



8.

Do not consent to giving the statement under oath. You are generally not

required to be placed under oath before giving a statement. Object to it. Thereare many reasons not to give a statement under oath. If the employer insistson it, ask them why the statement must be under oath and be sure to state onthe record that you objected to being placed under oath.

9.

If you are placed under oath and then asked questions, use extremecaution in giving answers. You could be charged with perjury if you giveanswers that you knew or should have known are untrue. Also, statementsgiven under oath are usually admissible in court. Statements that are notunder oath are usually inadmissible. So being placed under oath may allowthe employer to use your statement in ways that would surprise you. Youshould use great precision in giving your answers.

10.

Do not agree with facts the investigator or interviewer tells youunless you independently know them to be true. Just as some lawenforcement interrogators will plant false facts and ask the subject to agree,

so will HR and EEO interviewers. They may present facts as if they wereobvious for the purpose of making you feel foolish if you don’ t agree. (“Youknew Mike was giving people a hard time and using profanity, right? Right?”)If you don’ t know something to be true, you must say so. Otherwise you willbe stuck with your answer for all time. Many investigators “plant” facts in a

witness’ mind because they know that many people will simply agree withsomething that sounds reasonable and that is presented in a forceful mannereven if the investigator knows you have no idea whether it is true or not. Butonce you agree with it, you are stuck with your answer.

11.

Do not let the investigator reword your comments. Most interviewersor investigators with your HR and EEO departments are skilled in the wordingused to create or destroy claims against the employer. If you believe you orothers have been the victim of discrimination, say so. Often, for example, anHR interviewer will pressure you to stop using the word “discrimination,” andtry to get you to use word like “conflicts” or “disagreements” or “managementstyles.” You should assume there is a reason for any effort to change the way you describe things. Don’ t let anyone put words in your mouth. Describethings as you see them. If you feel the investigator is pressuring you torephrase things, say so on the record (e.g., “I don’ t know why you keeppushing me to describe it as a personality conflict. It wasn’ t a personality

conflict. The boss was harassing Andrea because of her race and that wasquite clear to me. It wasn’ t a personality conflict at all and I wish you would

not keep changing what I am telling you.”)



12.

If you can better answer questions by looking at documents, say so

on the record. Often, we provide more accurate answers to a question if wehave the chance to look at documents. Internal investigators may pressure you to answer questions even though you cannot look up documents. If thathappens, you can say something like “I can’ t give you an accurate answer onthat, and I will not give you a guess, without looking at the documents. Can I

look at them? If not, why not? Don’ t you want the best answer I can give you?”).

13.

If - after your interview is over - you think of other information thatwill clarify your answers, send an email immediately to the investigatorwith the additional information. Some investigators will turn on you if itsuits them. They may claim you gave false answers even though it was asimple mistake of memory. This is why it is so critical that you ask for time tothink about the topics before you begin the interview and, if not allowed time,that you make it clear repeatedly during the recorded interview that you werenot given notice of the interview and were not given a chance to look at

documents.

14.

If the interviewer tells you that you are not permitted to talk toanyone else about the interview or subject of the investigation, ask why.At least one federal agency that deals with workplace investigations has ruled

that an employer may generally not forbid you employees from talking aboutcurrent investigations. The National Labor Relations Board ruled in 2012 thatexcept in unusual circumstances, an employer may not prevent employeesfrom speaking to each other about the subject of internal investigations. Suchan instruction may itself be a violation of your rights under federal law.

15.

Consider calling an employee rights lawyer for guidance if you havethe chance. Most employee-rights lawyers, me included, will speak to you forfree by phone and without an appointment. If you’ re ambushed, or even if you’ re given a day or two to prepare, don’ t hesitate to call an employee-rightslawyer for help. Your employer has an army of HR, EEO and other advisors,not to mention lawyers. It’ s smart to get your own.

16.

Don’t assume that your statement will remain confidential. Beware

of promises that what you say will remain private. That is rarely true. If youremployer is a city, county, state or federal agency, it will certainly become

public at some point. That means that the person you talk about will be ableto read what you said. It also means that the news media may be able topublish your statement. If there is a dispute that winds up in court, lawyerswill obtain it as well, and may grill you about misstatements later. Thinkahead.



17.

Remember that in most cases, HR, EEO and other employerrepresentatives are not there to help you. The employer is paying them for

a reason – to protect the employer. Many employees wrongfully assume theHR office is a friend. In some cases that may be true. But in theoverwhelming number of circumstances, HR and other officials are youradversary in every way, even if they act friendly and appear to appreciate yourinput. And they are unlikely to come to you wind up being sued because of

something you said.

Questions about this or another employee-rights issue? Call me for a

free phone conferral.

Toll-Free: 1-800-663-7999

Jim Garrity, Esq.

Representing Employees OnlyMain Offices: Tallahassee, Florida

More information: http://www.JimGarrityOnline.com

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Tips for Giving a Statement in an Internal Investigation