The Ins & Outs of Conducting Investigations in the Time of COVID-19

"Don't put off until tomorrow what you can do today." - Benjamin Franklin

While employers may have initially deferred conducting internal investigations as businesses shifted to working remotely, that may not be a best practice as our "work-from-home" reality continues long term - or at least well into next year.  Employers face serious issues that need to be addressed swiftly. Conducting investigations into employee misconduct and/or allegations of discrimination or sexual harassment, can be done even in these unique times without face-to-face interaction.

There are several stages in the investigation process, some of which are more affected by remote work than others.  The first stage involves selecting the investigator or investigation team.  Next the team needs to gather and review all relevant documents and assure that document retention instructions are memorialized and enforced.  Third, the investigation team should conduct interviews with witnesses.  After the written records and witness input is reviewed, the team should ideally prepare a written report for the client reflecting the information gathered, conclusions and recommendations.  The process can take days, weeks or even months depending on the situation.

Of these steps, the phase most impacted by our virtual reality is the witness interview process, a process best done in person so the participants can make eye contact, establish rapport, observe body language and assess credibility.  Unfortunately, that is not a realistic option right now.  So, what is the best approach to conducting witness interviews remotely?

Conducting Witness Interviews

For sensitive investigations with significant potential exposure, it is best to use an investigator who is outside the organization and does not already represent the company to assure impartiality and avoid perceived conflicts of interest. The choice of investigator can also impact whether the notes, conclusions and reports will remain confidential, attorney-client privileged or readily discoverable if someone files an administrative complaint or a lawsuit relating to the subject of the investigation.

After assuring that relevant documents are preserved and reviewed, the investigators can begin interviewing witnesses. Ideally, witness interviews should be conducted in person, but in light of the pandemic, interviews over Zoom or other video platforms can be effective.  When video is not possible, telephone interviews can also be utilized; however, video is preferable.  During an interview, the interviewer, in addition to gathering all relevant facts, is attempting to make a determination as to the witness's credibility.  While making this determination, what an interviewer observes - in terms of the witness's mannerisms, intonations, etc. - can be just as important, if not more important, than the actual words spoken.

An interview should not be recorded unless there are extenuating circumstances, and the client should be apprised of this and should provide consent upfront.  In addition, if an interview will be recorded, the witness must be informed before the interview begins. Witnesses should also be informed that the investigator does not represent them and that anything they say will be shared with the employer.  There is no such thing as "going off the record"  with witnesses trying to confide in the investigator about information the witness does not want shared with the employer.

Technical Challenges

When conducting remote interviews, prepare for technical challenges that may occur:

  • If you or the witness is new to video conferencing, become familiar with the platform(s) before the interview. Set up a test meeting to get comfortable with speaking in front of the camera and navigating the platform's features.
  • Check your internet connection - do a test run to make sure your connection is solid and there are no delays.
  • On most platforms, you can check the audio and video to avoid any issues during the session.
  • Use a separate account to avoid being "dropped" because of multiple users on the same account. Secure access by making the session password protected to avoid being Zoom-bombed by uninvited guests.
  • Assure privacy so that no one can overhear the interview and you will not be interrupted.
  • Confirm the witness is not recording the meeting and that no one else is present. Have the witness identify and provide any documents to which they refer.
  • Check lighting and background so participants can see clearly and are not distracted

While employers may prefer to handle an investigation in person, remote proceedings can be thorough, effective, and efficient.  Given the current uncertainty, employers cannot delay investigating potential wrongdoing pending a return to pre-pandemic business as usual. By selecting an experienced virtual investigator, utilizing technology and being flexible, employers can move forward successfully with investigations into employee complaints and/or misconduct even during these unprecedented times.