April 14, 2014 Articles

Obtaining Witnesses' Statements in Internal Investigations of Misconduct

What to do when an employee witness does not want to get involved.

By Gerald Morales – April 14, 2014

Employers conducting internal investigations of possible workplace misconduct frequently confront resistance from key employee witnesses. Many witnesses do not want to “get involved,” because they feel that participating in an investigation could expose them to unwanted confrontations, harassment, and even threats and other coercive acts.

Witnesses’ resistance is even more frequent when the employers request written statements describing the witnesses’ observations and knowledge of the background in which relevant events took place. In the unionized workplace, employees fear that these statements could fall into the union’s hands and that the union leadership would disfavor the revelation of facts and observations that may result in disciplinary action against a union member or represented employee. The witnesses’ cooperation in the investigation may, therefore, expose them to a hostile work environment from the union leaders and supporters.

However, employers are frequently asked to ensure that the statements will be kept confidential, at least until there is a hearing regarding disciplinary action taken by the employer, if any, and the witness is subpoenaed to testify.

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