In a workplace investigation, both complainants and respondents are usually motivated to be interviewed. But that’s not always the case. When complainants or respondents are not cooperative and are reluctant to be interviewed, there are several steps an investigator can take to secure their participation in the interview process.

1. Explain the Company’s Need for Cooperation

In order to better position the organization to defend itself if sued, employers need to prevent misconduct and to take appropriate measures to correct it. A prompt and thorough investigation is the critical first step.

Complainants often raise allegations about discrimination, harassment, or other serious misconduct but want it kept confidential and do not want the issue escalated within the organization. Reluctant complainants should be informed that the organization is obligated to look into the issue to prevent it from happening again, and possibly affecting other individuals.

The complaint can’t be strictly confidential, particularly if corrective and preventive measures are justified. It’s important, however, that an investigator communicate this to the complainant in a direct and nonthreatening manner.

2. Explain Why the Subject Needs to Cooperate

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Participation in an investigation gives both complainants and respondents the opportunity for their side of the story to be heard by an objective party. It also enables them to clarify facts and events, and to identify others that may be able to support their perspective. These reasons for cooperation should be discussed with both complainants and respondents.

3. Address the Reasons for Resistance to Cooperation

An investigator should not pre-judge complainants or respondents, or make any assumptions about credibility, because of their reluctance to participate in an investigation. The ability to listen carefully, empathize, and address concerns in a straightforward way are key elements in dealing with reluctance.

Complainants, in particular, may be uncooperative with an investigation because of fear of retaliation. Even former employees, who are in a tight-knit community or field of work where “word gets around,” may fear retaliation.

In order to allay this fear, the investigator should emphasize that retaliation is prohibited and all information will be shared on a need-to-know basis only. The complainant should be encouraged to report anything that adversely impacts employment because of the complaint. If that occurs, the organization is to review and address the report promptly.

4. Explain the Consequences of Non-cooperation

Reluctance to be interviewed should not stall the investigation. In order to secure cooperation, the investigator should explain the negative consequences for failing to cooperate.

The negative consequences for non-cooperation of the complainants apply equally for the organization – lack of shared information about misconduct makes remedial action impossible. In addition, the employer might draw inferences about the complainant’s truthfulness because of the lack of cooperation. In the case of respondents (and witnesses), many employers condition continued employment on cooperation with the investigation.

In one situation, the complainant, who was a former employee, had entered into a settlement agreement with the employer where the ongoing payments were contingent on a number of obligations, including a cooperation clause. The cooperation clause allowed the organization to consider using the threat of stopping payments to try and modify the complainant’s behavior during the investigation, which included a lack of responsiveness to the investigator’s phone calls and emails, and repeatedly not attending scheduled interviews.

5. Document Attempts to Engage the Individual

Part of an investigator’s responsibility is to conduct a defensible investigation in order to withstand scrutiny if claims are filed. For example, an investigation can be attacked for negligence by the complainant if his or her concerns are not verified, or by the respondent claiming that he or she suffered an adverse employment action because of the results of the investigation.

As part of a defensible investigation, documentation of reasonable efforts to engage individuals in a dialogue when an investigator is faced with non-cooperation is critical. For example, this could include notes to the file when phone calls were placed and messages left, and interaction via email, certified letters, and in-person visits.

In addition, an organization that wants to condition continued employment for respondents (and witnesses) on cooperation with an investigation needs to ensure that these efforts by the investigator are well documented. This provides the necessary back-up if the individual is later disciplined or terminated for failing to sufficiently cooperate.

6. Drawing Out a “Quiet” Interviewee

Complainants and respondents sometimes agree to meet with an investigator but are less than cooperative during the interview itself. An uncooperative interviewee may be more willing to affirm or negate one small issue at a time (by responding “yes” or “no”) instead of providing a narrative response.

Investigators should ask detailed questions and use information gleaned from other aspects of the investigation to draw out answers when faced with this type of situation. Other methods include making sure the choice of physical environment is most comfortable for the interviewee, or suggesting that they write out their thoughts during the interview if that helps elicit a more substantive and complete response.