When an employee makes allegations of harassment, discrimination or other prohibited conduct in the workplace, workplace investigators are tasked with examining these claims to assist the employer in understanding the underlying facts and perspectives. Regardless of the industry or workplace, the investigator’s primary function remains the same: to collect and evaluate evidence relevant to the allegations. However, it is essential to recognize that investigators, whether internal or external, must adapt their approach for each investigation to ensure fair and equal participation from the involved employees. One situation in which investigators must do so is when investigating a matter involving non-English speaking employees.

Importantly, the investigator tailoring their approach for investigations involving non-English speaking employees does not mean that these employees are given any special treatment during the investigation process, but rather, that the investigator must work to ensure that non-English speakers are given equal access to participate fully and meaningfully in the investigation. This requires a proactive approach by the employer and the investigator.

When preparing for an investigation, it can be helpful to know ahead of time if any of the parties, meaning the person who made the complaint and the person whom the complaint is against, require an interpreter for their interviews. Knowing ahead of time allows the investigator to ensure that the interpreter is present during the first interview, rather than having to reschedule when the employee notifies the investigator of their need for an interpreter during the scheduled interview, which sometimes can be as late as halfway through or at the end of an interview. Typically, an organization will know since they likely have already conducted an intake with them or have gotten in contact with these individuals. Nonetheless, it can be helpful for the investigator to ask the organization if they anticipate the need for an interpreter, as some employers may forget to bring this up ahead of time.

While an investigator seeks to avoid unnecessary delays in the investigation process, the integrity and fairness of the process is most important. Thus, if an interviewee asks that they have an interpreter, even if they mention this when already halfway through the interview, best practice would be to reschedule the interview for a future date when an interpreter is available. Ideally, the investigator will arrange five to ten minutes to speak with the interpreter to ensure that they understand their role in the meeting. Specifically, that they know not to inject their own opinions, thoughts, or questions into the interview. However, talking to the interpreter in advance is not always possible, particularly if using an on-demand interpreter service. During the interview, it is important that the investigator ensure that the questions they pose are as simple and straightforward as possible. This is true for any investigation, but particularly true when working with an interpreter or when the investigator themselves is conducting an interview in a second language.

As a workplace investigator who does investigations in both English and Spanish, and who has used interpreters for interview, I believe it is more important to try to pick up on cues that can indicate a lack of understanding or mistranslation. Interviewees may be too shy to say they did not understand something, so take time to ensure that their answers are responsive to the question, and if not, try to figure out where the miscommunication stems from. Are the questions too open-ended? Are they not open-ended enough? Are you going too quicky? It is never too soon to refocus the interview and get back on track by trying to reformulate and simplify your question. This method ensures the interviewee answers the investigator’s question accurately. Personally, I make it clear from the start that if either of us doesn’t understand something, we should say so. This approach builds rapport and establishes open communication from the outset.

Overall, conducting a workplace investigation involving non-English speaking employees aims to achieve the same outcomes as any other investigation. The objective is to offer those involved an opportunity to share their perspectives, provide answers to necessary questions for the investigation, and pose any inquiries they may have concerning the investigation process.

---

Maria Walker AWI-CH, is an attorney investigator with Oakland-based Oppenheimer Investigations Group, where her practice concentrates on conducting impartial workplace and school investigations. Walker also specializes in providing training on important and sensitive workplace issues, including on sexual harassment prevention and labor laws, and performing climate surveys and assessments. She can be reached at maria@oiglaw.com.