Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Human resources professionals are focused today on dealing with myriad workplace issues arising out of the COVID-19 pandemic – new leave of absence laws, increased safety concerns, new privacy issues, and so on. In addition, many of the old ways of completing basic human resources tasks have been changed by new remote workforces and the need for physical distancing. One of the areas most impacted is internal workplace investigations.
Conducting workplace investigations in a post-coronavirus world presents challenges for the investigator, whether that investigator is an in-house human resources professional or attorney, or an external, independent investigator. Although gathering information and conducting interviews in person is preferable in almost every context, current conditions make face-to-face interactions impossible, or at the very least ill-advised.
With some planning and preparation, however, investigations can be as effective and fair – and more efficient for the client – than those conducted in person. In fact, as the world begins to return to normal, virtual investigations may remain a desirable option in some circumstances. How does an investigator ensure that a virtual investigation will be successful? The same way they do so for traditional investigations: with planning and preparation.
The Pros and Cons of Virtual Investigations
Although virtual investigations require thorough planning on the front-end and can present additional obstacles, they also provide some advantages over traditional investigations. These include:
- The ability to schedule interviews and other necessary conversations with more immediacy, providing the opportunity to gather more information while it is top-of-mind for interviewees.
- Reductions in the amount of time, cost and travel required.
Difficulties presented by a virtual investigation include:
- Additional obstacles in dealing with physical evidence, including its safeguarding.
- Reduced access to hard copies of documents, including the organization’s records, personnel files, etc.
- Logistics regarding searches of desks, lockers, etc., if necessary.
An investigator may not have access to the client’s work site, or social distancing requirements may preclude these steps from being taken. It is important to determine as soon as possible whether access for such actions is available and, if so, how the investigator may take them safely.
When it comes to interviews of complainants and witnesses, the primary difficulty present in a virtual investigation is observing non-verbal and physical cues from interviewees who are not sitting across the table. Also, an interviewee may be tempted to multi-task or may otherwise lose focus during their interview, depending on its format. While some interviewees take the process more seriously than others, that tendency may increase when separated by technology, especially if there are technological issues to grapple with. But there are ways to minimize these negatives.
Recommended Practices for Virtual Interviews
An investigator who is not technologically savvy should seek out technological support or facilitation to ensure that the technology and platform to be used operates seamlessly during the investigation. Testing the interface used to work out any technical details (wi-fi, audio, video, etc.) in advance is strongly advised, even for those with prior experience in its use.
Be sure to think through any other complications that may arise, for example, whether a language interpreter will be needed. Be extremely organized with any documents that are to be presented to interviewees, making sure all are accurately marked and numbered in case they are presented out of order. Also be sure any necessary redactions have been made.
Work with the interviewee regarding their setup; for example, make sure that you can adequately see and hear them and that they are in a quiet, private space. If the interviewee will be at the client’s work site, be sure to work with Human Resources or a local manager to ensure that the location and setup of the interview is sufficient.
Additional items to consider:
- Have alternative devices and/or platforms available for communicating in case your first choice has glitches. This may include alternative video conferencing platforms or simply conducting the interview by phone if you are unable to reschedule.
- Factor into scheduling additional time to work out any last-minute technical details.
- In order to assess an interviewee’s credibility, it is even more important to make every effort to carefully observe and note physical and verbal reactions. To do so, be mindful of facial expressions and non-verbal cues at all times, as an interviewee may be less guarded than they would be during an in-person interview and may inadvertently reveal more than they intended. Be sure to note any time the interviewee turns their head from the camera, mutes their microphone or leaves the room and to document the context of those actions, including any questions that may be pending at the time and any answers that may have been provided prior to the action.
Know Your Platform
Whether using WebEx, Zoom, Skype or another platform, it is important to understand how the platform works, including its options for security. Many platforms have built-in features that allow users to control who attends the meeting. In order to maintain control of these features, the investigator should be the “host” of the meeting. As the host, you can set a unique password for the meeting and “lock” the meeting after the necessary parties have joined. This can ensure that unintended visitors do not crash your meeting (the phenomenon known as “Zoom-bombing”) or even just accidentally join and hear your discussion. Additional items to consider:
- Use a unique meeting room. Most platforms allow users to use a “personal” room to quickly and easily schedule a meeting. But the link and dial-in number for this room is the same for every meeting, allowing anyone who has ever joined a meeting in your personal room to use that link or dial-in number to join future meetings, even if they were not invited. To avoid this risk, use a unique meeting room for your interview.
- Monitor the participants list. Most platforms provide a list of those participating in the meeting. Monitor the list, and if someone shows up as an unidentified caller, ask them to identify themselves, so you know who is listening.
- Understand how (and how not) to share your screen. If the platform you are using allows you to share your computer screen, a specific application or a specific document, make sure you understand how to share content without inadvertently sharing the wrong monitor or application.
- Stay on top of new features. Nearly all platforms add and change features over time, so make sure you are aware of these changes.
The prompt investigation of employee complaints and claims is crucial. An employer’s failure to expediently take action will neither correct unlawful behavior nor establish that it exercised reasonable care. Accordingly, a workplace investigator must be prepared to take all necessary actions in a timely manner. Proper preparation and planning will facilitate successful investigation no matter the context or format.