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Performance Management
Investigatory Meetings
Meeting
 
The following are guidelines for conducting an investigatory meeting, also called a fact-finding meeting. Differences are noted regarding the rights of represented employees and the rights of management service and unrepresented employees. The role of the agency Human Resource (HR) section is to guide or assist supervisors or the agency in conducting investigatory meetings.
 
If discipline is contemplated, in most circumstances the agency must conduct an investigatory meeting with the employee. The purpose of the meeting is to gather information.
 
Representation
Schedule the meeting in advance. Let the employee know it is investigatory. If the employee is represented, the employee has a right to request and obtain union representation while being questioned if the employee has a reasonable belief the meeting could result in discipline. These are called Weingarten Rights. If an employee wants representation, the employee needs to arrange to use a steward at the worksite if one is available or the nearest available steward. A union steward must arrange with their supervisor to take time away from work to represent an employee. The steward may represent an employee telephonically. Check the Collective Bargaining Agreement for notice requirements and pay status of stewards for investigatory meetings.
 
If the employee is management service or unrepresented and brings an attorney the agency should consider having an attorney from the Department of Justice Labor and Employment Section present.
 
Questioning
An investigatory meeting is the agency’s meeting. HR or the supervisor seeks information for the agency and must maintain control of the meeting. Keep the meeting low key and model respectful behavior. The purpose of the meeting is to investigate an issue, get the employee’s version, ask clarifying questions and determine whether there are mitigating factors. To fulfill this purpose, ask open-ended questions to elicit a complete version of what occurred from the employee’s perspective.
 
Prepare pertinent questions before the meeting. A second manager may attend to take notes. The employee, a steward and an attorney may take notes too. Notes may become discoverable once the investigation is complete and action has been taken. If recording the meeting is considered, contact DOJ at 503-947-4600 for guidance.
 
During the Meeting
Go into the meeting with an open mind. Don’t make the decision to discipline before the meeting. With this mindset, the person conducting the meeting (either HR, the supervisor or both) will be able to listen better to what the employee is saying.
 
Set simple ground rules at the start of the meeting such as: clarifying the steward’s or the attorney’s role; stating the employee’s requirement to answer the questions; informing everyone that leaving the meeting to consult will not be permitted; etc.
 
An employee is obligated to answer questions during an investigation. However, an exception to the obligation is if the employee feels he or she might self-incriminate regarding possible criminal activity, the employee may invoke their Garrity Rights and refuse to answer based on the 5th Amendment to the United States (US) Constitution. If the agency continues with questioning it may jeopardize the agency’s ability to pursue criminal prosecution based on information received. Contact DOJ at 503-947-4600 for guidance if an employee invokes their Garrity Rights.
 
The union steward or an attorney can only ask clarifying questions at the  investigatory meeting. The steward or attorney may not advise the employee how to answer questions or advise the employee not to answer questions. The steward or attorney and the employee may not leave the room during the questioning to have a “caucus” or speak in private. The union steward or attorney may suggest to the employer other witnesses to interview and may describe relevant practices, prior situations or mitigating factors that could have some bearing on the employer’s deliberations concerning discipline.
 
Do not tell or suggest to the employee during the meeting that the agency has made a decision about imposing discipline.  The purpose of the meeting is to discover the facts, not render a judgment.
 
After the Meeting
After the meeting, HR and the supervisor should review the information with each other.  Take facts and mitigating circumstances into consideration before making the decision to discipline or not. A decision should be made within a reasonable timeframe and the employee should be informed of the decision of whether or not discipline is the result.