6J02 Interview Procedures
a. General. This section reflects current OFCCP policies regarding the mechanics of the interview process, but it is not intended to teach Investigators how to interview witnesses. Throughout the investigation, including interviewing, the Investigator must maintain a high degree of objectivity and professionalism.
b. Interview Plan. As a part of the On-Site Plan, the Investigator must develop appropriate interview questions and identify specific individuals to interview regarding each identified potential problem area or compliance issue. Each planned interview or group of interviews should have an Interview Plan that indicates the topics the interview will address and spells out the initial questions the Investigator plans to ask. Interview Plans will vary depending on whether the interviewee is a manager, other employee, or unsuccessful candidate for hire, among other considerations. If there is an individual that the Investigator identified for interview but did not interview, the Investigator will make a note in CMS as to why the interview did not take place.
c. Informing the Interviewee. The Investigator will tell each interviewee, at the outset of an interview, that:
- The Investigator will show the interviewee their statement containing the answers to the questions asked during the interview; and
- The Investigator will ask the interviewee to sign their statement.
The Investigator will inform each interviewee that knowingly providing false or inaccurate information is unlawful and will explain that the following phrase is included in the interview notes where the interviewee signs:
“I have read the above and it is true and accurate to the best of my knowledge.”
In addition, the Investigator must inform interviewees that the interview is kept confidential to the maximum extent possible. The Investigator must also inform all interviewees, regardless of their position with the contractor, that it is unlawful for the contractor to intimidate them or take retaliatory action against them for participating in an interview.
d. Contractor Representative Present at Interviews. When the Investigator conducts interviews with nonmanagement personnel, the contractor does not have the right to have a representative present. However, when the Investigator conducts interviews with upper-level managers and directors that speak for or make decisions on behalf of the company, the contractor may have an attorney or other representative present. If the contractor wants a representative present during management interviews, the Investigator must first obtain written confirmation of the representation, including the contact information for the representative and the scope of the representative’s authority. Investigators can find additional details regarding representatives in Section 6E04.
The exception to this practice is when the manager is not speaking for management. An example of that may be when the manager is a member of a potentially affected group speaking about the potential discrimination or their personal experience, or acting as a whistleblower. In that type of situation, the Investigator may need to contact the employee directly after the on-site investigation to conduct the interview off-site without the contractor’s representative present. Investigators should consult with the RSOL and the national office prior to engaging in these types of interviews.
e. Employee Representative Present at Interviews. An employee may request that a personal representative, such as a union representative or personal legal counsel, accompany them during the interview. Subject to the limitations described below, this is generally acceptable. However, the Investigator must discuss the presence of the representative with the interviewee privately to determine whether there may be a conflict of interest or whether the interviewee feels pressured into having the person present. When the employee wants a personal representative present during the interview, the Investigator must first obtain written confirmation of the representation, including the contact information for the representative and the scope of the representative’s authority, if the Investigator does not already have the written confirmation.
The contractor does not have the right to have one of its representatives present during an employee interview, either as an observer or as the employee representative. If a nonmanagement employee wants a representative present, including a member of management, then OFCCP must honor the request. The Investigator can and should meet with the employee alone for the limited purpose of confirming that they were not coerced into asking for a management representative. The Investigator must consult with RSOL if there are any questions about the impact of the presence of a third party on confidentiality or privileges.
f. Preparing Formal Interview Statements. After a formal interview, the Investigator must ask each interviewee to read, sign and date an interview statement. Immediately, at the conclusion of the interview, the Investigator will review the questions asked and the answers given, and obtain confirmation that any direct quotes are accurate and that all paraphrases convey the interviewee’s intended meaning. The Investigator will promptly type the handwritten interview notes using MS Word in order to provide the interviewee with a formal interview statement to sign as soon as possible after the interview. The Investigator must enter the following phrase above the space where the interviewee will sign on the formal interview statement:
“I have read the above and it is true and accurate to the best of my knowledge.”
If the Investigator cannot print a copy of the statement immediately after the interview, the Investigator will mail or email the typed interview statement as soon as possible after the on-site investigation for the interviewee to review, sign, and date. If the interviewee wants corrections made, the Investigator must incorporate the corrections and resend the statement for the interviewee to sign. The Investigator maintains records of interview notes and each version of the interview statement in CMS. If an interviewee refuses to sign an interview statement, the Investigator will record this and the reason(s) for refusal to sign, if known.
g. Contact Information. At the conclusion of every interview, the Investigator must obtain the interviewee’s personal mailing address, telephone number and email address. The Investigator must also provide each interviewee with the Investigator’s office contact information in the event the interviewee wants to add anything to their statement.
h. Informal (Unplanned) Interviews. At any point in the investigation process, a potential witness may approach the Investigator to provide information related to the review. The Investigator must make every effort to meet or otherwise interview the potential witness. The Investigator will follow the interview procedures described in this section.
If, however, the potential witness is unwilling to be interviewed and only wants to provide the information, the Investigator must document the conditions under which the employee provided the information in a memorandum. For example, the Investigator records that the employee provided the Investigator with a document, briefly describes and attaches the document to the memorandum, and indicates in the memorandum that they were unwilling to be interviewed. The Investigator must then use other means to verify the credibility of the information provided in this manner.
i. Location of Interviews. While interviews of management officials typically occur on-site, Investigators may conduct employee interviews off the contractor’s premises to reduce opportunities for the contractor to interfere. In general, this is the preferred approach to conducting non management employee interviews. The Investigator may also conduct interviews at the contractor’s premises or by telephone, as appropriate. Other options might include interviewing an employee on-site prior to the start of their work shift, or at the end of their shift. In-person interviews allow Investigators to observe the interviewee’s demeanor, making credibility determinations easier.
j. Virtual Interviews. Virtual Interviews take place remotely, often by telephone or video conferencing. When virtual interviews of current employees, former employees or applicants are necessary, the Investigator must type the resulting notes and send a copy to the interviewee for review, revisions, as appropriate, and a signature. As with in-person interviews, Investigators will ask whether there is anyone else present with the interviewee to address any concerns this may create, as described above.
k. Investigator is Unable to Conduct Interview. If the Investigator is unable to conduct an interview, they should add a memorandum to the file explaining who was supposed to be interviewed and why the interview did not occur. For example, the complainant may identify a potential witness to the alleged harassment, but the potential witness indicates to the Investigator that they were, in fact, not a witness to the alleged conduct and do not want to submit to an interview.