An investigative interview is an opportunity for the investigator to gather relevant facts related to a concern in a workplace. The role of the investigator during an investigative interview is to hear the perspective of the complainant, respondent, and witnesses, gathering relevant facts related to the concern.

During an investigative interview, parties and witnesses (or interviewees) often ask if another individual can attend their interview. These additional individuals are referred to as third persons or third parties in this article. Whether third parties can attend the interview depends on the third party’s role. This article describes the types of third persons who may accompany interviewees, and the best practices for all participants when that happens.

Represented Parties and Witnesses

A third person may attend the interview as a representative for the interviewees. Most commonly these individuals are legal counsel or union representatives.

Legal Counsel. An interviewee, often the complainant or respondent, may retain legal counsel to represent them during the investigative process. Whether legal counsel can be present for the investigative interview depends on who is conducting the interview. For external attorney investigators, California Rules of Professional Conduct 4.2 applies: “a lawyer shall not communicate directly or indirectly with a person the lawyer knows to be represented by another lawyer in the matter.” Therefore, if an investigation participant is represented by an attorney, the attorney investigator may interview that participant only with the permission of that individual’s attorney. Practically speaking, this means that when an attorney investigator is aware that a participant is represented by legal counsel, the attorney investigator should first contact the attorney to seek an interview with that individual.

Union Representatives. Under NLRB v. J. Weingarten, Inc. (420 U.S., 251 (1975)), union-represented employees (most commonly, non-supervisory public employees) have a right to request a union representative to be present with them during an investigative interview if the employee reasonably believes disciplinary action might result. However, even where discipline is not likely, many public agencies allow union representatives for those being interviewed as witnesses as a matter of best practices or as contracted in their collective bargaining agreements.

Best practices for legal counsel, union representatives, and investigators:

• Include legal counsel and union representatives in all communications with the interviewee,
• Before the interview commences, remind legal counsel and union representatives of their respective roles during the interview: to safeguard the interviewee’s legal and contract-based rights,
• Legal counsel and union representatives may request breaks to caucus and side bar with the interviewee as needed, with the caveat that the interviewee answer any pending questions before taking the break,
• Remind legal counsel and union representatives that they cannot speak on behalf of the interviewee; the investigator needs to hear from the interviewee to gather relevant information,
• Remind legal counsel that they cannot make objections during the interview, and
• Ensure the investigative interview occurs during contract hours for unionized employees.

In situations where the investigation is conducted by internal investigators for an organization, an interviewee is not entitled to have legal counsel present during an investigative interview as a matter of legal right, but this may be required per a collective bargaining agreement or the employer’s past practice.

Unrepresented Parties and Witnesses

A third person may attend the interview in a supportive capacity for the interviewees in other instances, as well. While they do not represent the interviewee in the same way legal counsel or a union representative would, they offer support due to some need of the interviewee. These individuals are commonly language interpreters, parents/guardians, or a close family member or friend.

Interpreters. Interviewees may request a language interpreter if English is not their primary language. Interpreters assist with making the investigative interview more accessible by minimizing the language barrier.

Best practices for interpreters and investigators:

• Consider including language in investigation notices that offers interpreters as available upon request,
• Connect with the interpreter before the interview to align on any translation conventions (e.g., the pace of the interview, translating by sentence versus by paragraph, or a request that the interpreter not narrow a question or response, etc.),
• Ask simple questions that are easily translatable, and
• Consider allotting more time for the interview.

Parents or Guardians, Family Members and/or Close Friends. It is common and understandable for a parent or guardian to request to be present during an investigative interview with a minor. It is also common for interviewees to request that their family member or close friend accompany them during an interview as their support person or if the past practice of the employer permits a representative of the interviewee’s choosing.

Best practices for parents/guardians/close family and friends and investigators:

• Remind third persons that the role of the investigator is to hear directly from the interviewee,
• Remind third persons that they should not speak on behalf of the interviewee,
• Set aside time to allow third persons to share their perspective at the end of the interview.

Keep in mind that if the third person is a potential witness in the investigation, the investigator may request that the interviewee select a different support person.

The presence of third persons during investigative interviews provides a unique dynamic for investigators to navigate. It is helpful when investigators and third persons align on the goal of the investigative interview: for the investigator to gather relevant information from the interviewee directly. Ensuring clear communication and understanding between investigators, interviewees, and any third persons present is crucial for conducting an effective and thorough investigative interview.