Remote Work Environments May be Here to Stay. Is Your Workplace Prepared to Handle Virtual Investigations?

COVID-19 forced many employers to shift from an in-person work environment to a virtual environment very quickly. Today, employers in some areas of the country are still unable to fully return to the workplace due to surges in COVID-19 cases and/or strict physical distancing requirements. In addition to those employers, many other employers have experienced a normalization of remote working and have decided that working remotely is the future of work, pandemic or not.

Whether you are an employer who has been unable to return employees to the physical workplace or an employer who has decided to fully transition to a remote environment, it is imperative that you revisit the best practices related to an employer function that has been greatly impacted by the remote working environment—workplace investigations.

Prior to March 2020, most employers handled investigations inside the workplace with face-to-face interviews. This practice made it relatively easy to speak directly to employees and review relevant hard copy documents. Now, many employers have transitioned to conducting investigations through video conferencing software. The use of video conferencing applications can present challenges for an unprepared investigator, however, including confidentiality and privacy concerns. These challenges can be mitigated with preparation and by following several best practices related to the execution of virtual investigations.
 

1. Prepare an Investigation Plan

Before conducting interviews, investigators should develop an investigation plan that will serve as an initial roadmap for the investigation. As a first step in doing so, investigators should determine the scope of the investigation. For example, will the investigation concern workplace misconduct issues such as harassment or discrimination? Or, will the investigation concern criminal issues such as workplace theft or assault? Defining the initial scope of the investigation will allow the investigator to reasonably estimate the time and resources needed to conduct a successful investigation.

Investigators should also collect and analyze relevant documents and information already available such as written statements, supervisor notes, surveillance videos, audio recordings, employee files, and other documents that may be readily available.

After reviewing relevant documents, investigators should prepare an outline and determine the initial chronology of witness interviews. While there is no perfect interview order, investigations should generally start with an interview of the individual who raised concerns to the employer, followed by any alleged victims or witnesses of the alleged misconduct. Generally, the subject of the complaint will be interviewed after information regarding the allegations and potential evidence has been gathered from the complainant and other witnesses. Importantly, investigators should be prepared to deviate from the initial investigation plan because, depending on what the investigator learns while the investigation is ongoing, it may be necessary to add or remove witnesses from the interview list or to collect and review additional documents.
 

2. Proactively Address Technology Issues

Hello everyone. Can you hear me? No? **Head shakes** Ok, I’ll just log out and try to get back in.

The words above are all too common in our world of virtual meetings. In most circumstances, encountering an audio or video glitch at the beginning of a meeting will not present a significant issue. However, if you are conducting a sensitive interview with a busy employee, a 10- or 15-minute delay will waste valuable time and possibly prevent the completion of the interview. Thus, investigators should proactively anticipate and address possible audio or video issues prior to conducting an interview.

The ideal platform for conducting a remote interview is video conferencing, which allows the participants to see each other. Video conferencing also allows the investigator to look for non-verbal cues from the witness, which is important in assessing credibility. While video conferencing is ideal, and while most employers will utilize a preferred video conferencing platform, investigators should anticipate challenges witnesses may encounter trying to access or use the video conferencing software. For example, some video conferencing applications require that a user download and install software prior to use. This may present challenges for some witnesses working from home who may have unreliable internet connections or other issues with remote technology.

To proactively address technology challenges, investigators should attempt to communicate with witnesses prior to interviews and confirm the witnesses are able to utilize the proposed platform. Investigators should also ask the witness to let the investigator know if he or she experiences any issues and, if time allows, the investigator should conduct a short test prior to the interview to ensure all parties are able to access the interview.

In addition to audio and video issues, investigators should consider how to present documents and other visual or audio materials during an interview and practice doing so before an interview takes place. In the pre-pandemic world, investigators could pass documents or show videos to witnesses during interviews. Now, however, investigators must either provide documents and other information to witnesses prior to an interview (not preferred) or share documents using a screen share feature. Many videoconferencing platforms include a screen share feature, but without practice or preparation, difficulties may arise and delay or derail a witness interview, which is problematic if you were looking to get an honest first reaction to the evidence.
 

3. Request Confidentiality and Confirm Security

Virtual investigations make it easier for individuals to discreetly record interviews. Indeed, many video conferencing applications allow users to record meetings by simply clicking a button. Thus, it is important for investigators to provide witnesses with clear confidentiality instructions, to the extent allowed under applicable law, at the beginning of an interview.

Investigators should ask each witness to keep the investigation confidential and inform the witness (with no guarantee of complete confidentiality) that the investigation will be performed in as confidential a manner as possible. Investigators should also confirm that the witness is in a private area and that no one else is present in the room.

Virtual conferences also create opportunities for unauthorized individuals to enter the meeting. To preempt this issue, investigators should become familiar with the video conference platform’s security features. Among other options, many video conference applications allow users to require access codes and/or passwords, set up private meeting rooms, control who can enter the meeting, and monitor meeting participants.
 

4. Follow Best Practices During the Interviews

Although a virtual interview may take place from the comfort of one’s home rather than an office, investigators should still follow best practices when conducing virtual investigations. Investigators should enter the virtual meeting room several minutes before the start of the meeting to ensure the witness and any other participants can access the meeting room. Investigators should also maintain a professional and businesslike environment throughout the interview.

Virtual interviews may also tempt investigators to rush and/or ask fewer questions than planned. Investigators should avoid this temptation as doing so will likely cause the need for unnecessary follow-up interviews. In the same vein, investigators should take detailed factual notes and ask the witness to confirm the accuracy of the information received prior to ending the interview.

Finally, and perhaps the most challenging obstacle in conducting virtual interviews from home, investigators should make every effort to conduct all interviews in a quiet and distraction free environment.
 

5. Complete the Investigation Report

After all interviews have taken place, investigators should prepare an investigation summary. While investigation summaries will differ from case to case, the summaries should generally include the following:
 

• A description of the report or conduct that led to the investigation;
• The date investigation was opened;
• The individuals interviewed and documents reviewed;
• A summary of facts collected during the investigation;
• Applicable employer policies or rules and a discussion of how those policies or rules apply to the situation;
• The conclusions reached by the investigator;
• Actions taken by employer, if any, and the good faith basis for taking such actions; and
• Date investigation was closed.

Investigations remain an important operation in the workplace. Failing to properly conduct a necessary investigation will not only negatively impact employee morale but may also expose an employer to liability. Thus, with the increase in employees working remotely, employers should take proactive and appropriate steps to ensure their workplaces are prepared to conduct timely and effective remote workplace investigations.

For more information, contact Charles E. Bush II or any member of Ice Miller's Labor, Employment, and Immigration Group.

This publication is intended for general informational purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstance.