Tips for a Getting the Straight Scoop

There are varying opinions about the most effective way to get information from someone in an interview. Any TV viewer is aware of good cop/bad cop, the idea that threatening someone will permit a gentler interviewer to gather information.

The TV show “24” advanced the theory that torture is an effective means to get information, though that is clearly not an option for a compliance interview.

Even if torture were legal, it isn’t the approach I would embrace.  I am quite committed to a combination of kindness, building trust, and careful listening as an interview strategy. But there are some legal realities that have the potential to derail that approach. 

If you do interviews, you need to know of the Supreme Court’s Upjohn decision. It held that employees need to understand that when they are talking to the company’s lawyer or an agent of the company’s lawyer, any attorney-client protection belongs solely to the company and the company has the right to waive the protection.

But the way you give that warning to the employee is going to set a tone for the interview. Even a well-delivered statement will often result in the employee asking, “Do I need to get my own lawyer?” because you are explaining that you don’t represent the employee.  A poorly delivered warning can result in the employee refusing to do the interview, or, more likely, being evasive in their answers.

So how do you explain you aren’t the employee’s lawyer without spooking them?

I tend to approach interviews a bit differently based on whether I think the witness might be involved in any improper activity. When I’m quite confident the employee hasn’t engaged in the conduct I am investigating, I will open the interview by telling them that while nothing in life is certain, I am not aware of the slightest reason they should be concerned. I won’t lie, however, so I won’t say that if I am not quite confident. 

Let’s assume that Chuck Buck is a lawyer at Monitor Monday health.  Here is how I will give the Upjohn warning.  “As you know, I’m a lawyer. My client is Monitor Monday.  I want to explain what that means. When I said I was on my way here, I told my wife I was going to talk to a client. But that isn’t technically true, because my client is the company, not Chuck, or you or any other person. 

Instead I represent the whole company, not any person.  That has an implication on what people say to me.  Everything that you, or Chuck, or anyone else says to me is privileged. It’s just that the company controls the privilege; I don’t, you don’t, and Chuck doesn’t.” 

I think that makes the idea sound less scary, and far less personal. 

Those of us doing compliance interviews have one advantage over law enforcement officials.  Because of the 5^th amendment, with the exception of licensing Boards, government people can’t compel you to talk.  People can refuse an interview. But an employee who declines an interview with compliance can find themselves fired. While they aren’t legally required to participate in the interview, there are consequences for refusing. There are also consequences for being evasive.

Employees don’t have a right to counsel at one of these interviews, unless a union contract allows a union representative to participate. But I’m in favor of helping employees feel comfortable because it yields a more productive interview. 

As long as the lawyer they bring doesn’t interrupt me, I am generally fine with their presence. The biggest caveat is I want to make sure our interests are aligned to increase the odds that the conversation remains privileged despite the presence of an outsider.

My strategy during an interview is to channel Stevie Nicks.  The message I am sending is that “I can see we’re thinking about the same things. Baby, talk to me.”  And with the right amount of charm and explanation, most employees will, in fact, provide you with the straight scoop.