Before security personnel begins the interviewing process, they must know the legal structure and considerations that are part of every interview. Law enforcement personnel have undergone training in the academy and learned about Miranda rights but interviews in a non-law enforcement capacity require more knowledge. Since Miranda doesn’t apply in private sector investigations, it’s imperative that investigators get the training and knowledge they need prior to conducting even one interview. They also should have classes yearly that reinforce and go over any changes in the law.
One case that every company with union employees need to understand is the landmark case of NLRB v. J. Weingarten, Inc. (CASE INFO) During the course of an investigatory interview, the employee asked for and was denied the presence of her union representative. The National Law Review Board (NLRB) held that the employer had committed an unfair labor practice. The NLRB appealed to the Court of Appeals in their jurisdiction which held that no union presence was necessary. The NLRB appealed to the US Supreme Court.
In 1975, the US Supreme Court reversed the Court of Appeals decision and stated that the employer violated SS 8(a)(1) of the National Labor Relations Act because it interfered with, restrained, and coerced the individuals right of an employee, protected by SS 7, when it denied the employee’s request for the presence of her union representative at the investigatory interview. From the US Supreme COurt decision came the Weingarten Rules which apply to any questioning of a union employee that could result in disciplinary action. Employees may exercise the following rights: they may request a union representative at any time; after the request has been made, the employers must chose to either grant the request and delay the questioning until a representative arrive and consults the employee; they can deny the request and terminate the interview or they can give the employee the option of talking without a representative. Under no circumstances can an investigator deny the request and continue to ask questions. As of 2007, the NLRB decided that “employer’s rights to conduct prompt, efficient, through and confidential workplace investigators” outweigh the employee’s rights to representation during those investigations and withdraw the right from nonunion workplaces (WiKi) Ethical Standards
For the interviewer, there is a fine line between permissible interview techniques and coercion. Deceptions are powerful tools available to the investigator. Using them incorrectly will result in confessions that the courts consider coercive. Common types of deception used in interviews include: telling a subject that he or she is free to leave, thus making the interview non-custodial and removing the need to obtain a waiver of Miranda rights; Exaggerating or downplaying the seriousness of the offense; the use of vague or indefinite promises to encourage confessions; pretending to be someone other than an investigator and fabricating evidence (LEO & SKOLNIC, 1992). Eight Phases of the Investigative Interview
Many law enforcement agencies are adapting to an eight phase structured interviewing process that would be beneficial to private sector investigators. A structured investigative interview is a dynamic, conversational interaction between the interview parties. Not standardized, so this process can be adhered to various situations, this makes it an ideal interviewing technique for private companies to employ. Phase One: Preparation Phase
The investigator needs to know what the ultimate goal of the interview...