Interviewing Techniques for
Auditors:
Eliciting Information
Preparing for the Unexpected
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Introduction
 Investigations into employee misconduct often
involve difficult and complex issues of law.
 Use of interview techniques might be restricted
by:
• Federal and state laws
• Organizational policies
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Legal Authority to Conduct Interviews
 Constitutional privileges
• A citizen has the authority to
conduct an inquiry into
virtually any subject area, as
long as the rights of
individuals are not
transgressed in the process.
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Employee’s Duty to Cooperate
 A duty to cooperate exists in every employeremployee relationship.
 Employees have a duty to cooperate during an
internal investigation, as long as what is
requested from them is reasonable.
• An interview is considered reasonable if it addresses
matters within the scope of the employee’s actions or
duties.
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Employee’s Rights
During the Investigation
 Contractual rights
• Union contracts or
collective-bargaining
agreements
• Written employment
agreements containing
employee-rights provisions
 Whistleblowers
• Federal and some state
laws offer protection
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Employee’s Rights
During the Investigation
 Employee’s Constitutional rights
• Fourth, Fifth, and Sixth Amendments
 Employee’s right against self-incrimination
• May assert right against self-incrimination during an
investigation by either a public or private entity
• May be subject to dismissal by a private company if
he fails to cooperate in an investigation
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Miranda Warnings
 Private and public employers may interview
employees in noncustodial settings without
giving Miranda warnings, unless reporting to law
enforcement or a state agency.
• Custodial setting—questioning initiated by law
enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom or
action in any significant way.
• Public employers—public entities cannot force
employees to choose between their Fifth Amendment
right to silence and their jobs.
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Possible Tort Actions
Arising from Interviews
 Generally there is no legal liability in asking
questions.
 Problems arise when interviewers make untrue
statements during the interview process.
 A tort (unlike a crime, which is an offense
against the state) is a private or civil wrong
committed against a party.
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Defamation
 The statement must:
•
•
•
•
Be untrue in its material facts
Be published (or broadcast) to a third party or parties
Be made on an unprivileged occasion
Damage the reputation of the subject
 Libel is the written form of defamation.
 Slander is the spoken form of defamation.
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Invasion of Privacy
 Two torts
• Publicity of private facts
• Unwarranted intrusion
 A person commits the publicity tort if he:
• Publicizes broadly
• Private facts about another
• That would be highly offensive to a reasonable
person
• About a matter in which the speaker does not have a
legitimate interest
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Invasion of Privacy
 Unwarranted intrusion involves the
unreasonable, deliberate prying into private
matters or the “seclusion” of another without a
legitimate interest or authority.
 Invasion of privacy can be avoided by having
adequate predication (sufficient grounds) to
conduct an interview.
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False Imprisonment
 An intent to confine
 An act resulting in
confinement
 Consciousness of
confinement or resulting
harm
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Malicious Prosecution
 Instituting civil or criminal litigation against
another
 Without just cause
 With malice (i.e., the intent to harm the victim)
 The proceeding ends favorably to the victim.
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Intentional Infliction of
Emotional Distress
 Engaging in extreme and
outrageous conduct that
causes severe emotional
distress
 The offending conduct
must “outrage the
sensibilities of a
reasonable man.”
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