a. General. This section reflects current OFCCP policies regarding the mechanics of the interview process, but it does not teach COs how to interview witnesses. Throughout the investigation, including interviewing, the CO must maintain a high degree of objectivity and professionalism.
b. Interview Plan. As a part of the On-Site Plan, the CO 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 CO 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 CO identified for interview but did not interview, the CO will make a note in the case file as to why the interview did not take place.
c. Informing the Interviewee. The CO will tell each interviewee, at the outset of an interview, that:
- The CO will show the interviewee his or her statement containing the answers to the questions asked during the interview; and
- The CO will ask the interviewee to sign his or her statement.
The CO 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 CO must inform interviewees that the interview is kept confidential to the maximum extent possible. The CO 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 CO conducts interviews with nonmanagement personnel, the contractor does not have the right to have a representative present. However, when the CO 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 CO must first obtain written confirmation of the representation, including the contact information for the representative and the scope of the representative’s authority.341 The exception to this practice is when the manager is not speaking for management. An example may be when the manager is a member of a potentially affected group speaking about the potential discrimination or his or her personal experience, or acting as a whistleblower. In that type of situation, the CO may need to contact the employee directly after the on-site investigation to conduct the interview off-site without the contractor’s representative present. COs 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 him or her during the interview. Subject to the limitations described below, this is generally acceptable. However, the CO 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 CO 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 CO 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 CO can and should meet with the employee alone for the limited purpose of confirming that he or she was not coerced into asking for a management representative. The CO 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 CO must ask each interviewee to read, sign and date an interview statement. Immediately, at the conclusion of the interview, the CO 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 CO 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 CO 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 CO cannot print a copy of the interview statement during the on-site investigation, the CO must ask the interviewee to sign and date the CO’s interview notes. The CO will mail or email the typed interview statement as soon as possible after the on-site investigation for the interviewee to sign and date. If the interviewee wants corrections made, the CO must incorporate the corrections and resend the statement for the interviewee to sign. The CO maintains records of interview notes and each version of the interview statement in the case file. If an interviewee refuses to sign an interview statement, the CO will record this and the reason(s) for refusal to sign, if known.
g. Contact Information. At the conclusion of every interview, the CO must obtain the interviewee’s personal mailing address, contact telephone number and email address. The CO must also provide each interviewee with the CO’s office contact information in the event the interviewee wants to add anything to his or her statement.
h. Informal (Unplanned) Interviews. At any point in the on-site investigation process, a potential witness may approach the CO to provide information related to the review. The CO must make every effort to meet or otherwise interview the potential witness. The CO 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 CO must document the conditions under which the employee provided the information in a memorandum. For example, the CO records that the employee provided the CO with a document, briefly describes and attaches the document to the memorandum, and indicates in the memorandum that he or she was unwilling to be interviewed. The CO must then use other means to verify the credibility of the information provided in this manner.
i. Location of Interviews. COs normally conduct interviews during the on-site investigation. However, the CO may conduct interviews via telephone, as appropriate. For instance, the CO may need to interview a former employee. There may also be situations when a contractor refuses to allow on-site interviews of nonmanagerial employees or where such employees want their interviews conducted away from the establishment. When possible, the CO will attempt to explore alternatives with the contractor or the employee, as appropriate. One possible alternative is conducting interviews during meal breaks. Other options might include interviewing an employee on-site prior to the start of work shifts, or at the end of his or her shift. A CO may also conduct interviews at an off-site location.
j. Telephone Interviews. COs conduct telephone interviews only when it is not feasible to conduct the interview in person since the CO cannot observe the interviewee’s demeanor during a telephone interview, making credibility determinations more difficult. However, when telephone interviews of current employees, former employees or applicants are necessary, the CO 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, COs will ask whether there is anyone else present with the interviewee to address any concerns this may create, as described above.
k. CO is Unable to Conduct Interview. If the CO is unable to conduct an interview, he or she 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 CO that he or she was, in fact, not a witness to the alleged conduct and does not want to submit to an interview.
341. See FCCM 6D04 for more details on what to request in the written confirmation of representation. If the CO already has written confirmation of the representative, there is no need to ask for it again.