The Alaska State Commission for Human Rights (ASCHR) has had a long-standing practice of forbidding employers from having a representative present when an ASCHR investigator interviewed non-managerial employees regarding discrimination complaints, but allowing the company’s attorney to sit in when supervisors or manager are interviewed.
In a just issued opinion (Alaska State Commission for Human Rights v. Anderson, Opinion No. 7280, August 31, 2018), the Alaska Supreme Court upheld this past practice even though not specifically authorized by law. The court’s decision is based largely on the statutory requirements that investigations must be kept confidential. The court reasoned that having a third party present in an “informal interview” might chill the witness from providing complete, truthful information.
From the employer’s perspective, the goal of participating in the investigative interview should not be to chill the witness, but rather to know precisely what conduct is being alleged. This permits the employer to resolve complaints quickly and informally if it appears discriminatory conduct may have occurred, or to gather appropriate factual information to address allegations of which the employer might otherwise be unaware. The court’s ruling, however, evidences a judicial concern that confidentiality requirements outweigh the employer’s need to know.
Three Key Takeaways From This Decision:
- Expect new restrictions on who may sit in on ASCHR interviews. The court opines it is allowing ASCHR’s long-standing, but unwritten, past practice. However, the opinion may signify a further restriction on employers. Historically, ASCHR has allowed a supervisor, manager or attorney to attend interviews of managers and supervisors. In the recent decision, even though the proposed employer representative is identified as a “supervisor,” ASCHR took the position that the supervisor was “not a high-level manager” and thus could not attend the investigative interview. The court upheld ASCHR’s position. Thus ASCHR may be further restricting who it will allow to sit in on investigative interviews of co-workers in discrimination cases.
- Employer’s attorney may likely still attend management interviews. ASCHR’s past practice, as recognized by the court, has allowed witnesses to be accompanied by “their own attorneys…” In this case, ASCHR took the position that “witnesses are not entitled to representation, whether by counsel or otherwise, absent some affirmative right conferred by law.” Since the employer in this case did not attempt to have an attorney present at the interview, this potential conflict is not specifically addressed by the court. However, it appears employers will most likely be permitted to have a representative attend investigative interviews of supervisors or managers if the representative is the employer’s attorney.
- Employer representative likely may attend non-management interviews if the witness retains the attorney as his/her own. The court’s opinion seems to leave open the approach that has been pursued in the past of permitting attendance by the employer’s attorney at interviews even of non-managerial employees where such employees request to have the employer’s attorney present and it is agreed the attorney is representing the individual as well as the employer.
- Stay tuned for more guidance. The ASCHR plans to publish draft administrative regulations setting forth its policy on attendance at investigative interviews. Employers should keep a look out for the notice of rulemaking and be prepared to comment on the proposed regulations as may appear appropriate.