Many HR professionals have done internal investigations and had to determine the truthfulness or credibility of the person being interviewed. Generally, doing these investigations means that regardless of who is involved, the investigator must have an open mind without any prejudice to conduct a fair and impartial investigation. It can be difficult because the person being interviewed may be known to HR either personally or through the eyes of the supervisor, but any preconceptions need to be curbed when investigating.
So how do you know if someone is prevaricating? Many may say watch their facial expressions or body language, but those can be deceiving, especially if the person is only marginally known by the investigator. Does anyone know what a shrug or a smile means? The investigator might equate past experiences to a meaning. Everyone is different. Don’t assume.
Think like a lawyer. Therefore, first question when listening to the story is whether it sounds realistic or plausible. If it makes sense, it likely has some credibility. If witness statements are backed by other witnesses or physical documents or video, then this is corroboration, which is a strong indicator of credibility.
To identify potential corroborating evidence, ask, “If this is true, what else must be true? An example provided by Steve Schleicher and Stephanie Laws of Maslon LLP may provide some illumination.
“For example, an account manager’s statements that he overbilled employee hours on an invoice due to inadvertent error, rather than fraud, could be corroborated by documents showing the overbilled amounts were passed through in wages to the manager’s hourly employees, rather than pocketed as company profit.”
Therefore, it is important to pull the employee, peruse performance reviews and any possible discipline, or any other documentation that would either support or oppose the statements of a witness or employee. There is no time limit as to how far back the discipline or performance review was that could support the new situation.
Again, body language is not corroboration. A shrug, smile, or frown may be misleading. Ignore it or file it away until all the “evidence” is in. At that point the investigator is simply confirming their hypothesis on body language as it relates to the individual but does not add or take away from credibility. Even lack of eye contact should not be considered because some people avoid it on a regular basis, not because they are lying, but because it is their character. It could also indicate a disability such as autism. Or it could be a cultural norm. Again, don’t assume anything.
Steve Schleicher and Stephanie Laws then recommend consider the following:
- Does the witness have a motive to lie? Could they be disciplined or have some other personal stake in the outcome of the investigation?
- Did the witness have the ability and opportunity to know, remember, and relay the facts? Are they really reporting what they saw (and could see given the environment) or what they thought they saw or what was relayed to them by a third party?
- How (and how well) does the witness know the facts? For witnesses, determine how they learned of the situation. There is a lot of hearsay generated in a workplace—water cooler talk. Make sure it is actual and not perceived. The greater clarity of the statements would generally support credibility of the statements.
- What was the witness’s manner? Review how the witness presented the information. Was it direct and on the point, or was it roundabout? Were there missing key details or did it seem to support the act being investigated. Again, ignore the body language and focus on the words and the way presented.
Overall, doing investigations requires discipline on the part of the investigator to keep a clear mind and to keep any preconceptions (especially from supervisors/managers) out of the mix. Remember the old adage – document, document, document. Keep the documentation in a separate investigation/confidential file. This will help to prove that bias was not involved.
Source: Maslon LLP 4/21/23
By Anthony Kaylin, courtesy of SBAM-approved partner, ASE.
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