COVID-19: Adjusting to Remote Investigations – Our New Normal
The impact of COVID-19 continues to dominate headlines. On March 11, 2020, the World Health Organization officially declared the viral disease COVID-19 a pandemic. In California, as well as in other states, communities responded by issuing stay-at-home lockdown orders. Schools are closed, employees are furloughed or working at home, and public gatherings are a thing of the past.
This is our new normal.
What does this mean for workplace investigations? In this blog, we explore some of the adjustments workplace investigators need to make in order to successfully navigate this new normal. We know this landscape brings challenges and fears, but we also believe it brings opportunities. Even in this changing climate, workplace investigators should seek to be optimistic and resolutely dedicated to conducting high quality investigations.
Commit To Being A Remote Investigator: Investigators must be willing to make adjustments to their personal work settings. Ask yourself whether you can engage in the investigative process and comply with stay-at-home lockdown orders necessitated by COVID-19. For example, do you have a home office setup? Do you have a quiet, private location to conduct videoconference interviews? Are you comfortable using video conferencing technology? Do you know how to send, and receive, documents related to the investigation? Do you have the capability to electronically sign documents, such as contracts? Do you need to make any lifestyle adjustments to remain productive at home? Consider these factors now in order to make the transition smooth and seamless.
Prepare To Investigate A Remote Workforce: Make sure you plan ahead for the inevitable changes remote investigations will bring. For instance, expect delays in initiating, conducting, and finalizing workplace investigations. Put an added emphasis on staying in touch with clients through email, phone calls, and teleconferencing. Document your efforts to keep the investigation moving along the way. Interviews may also be harder to schedule, since offices are closing and communities are grappling with shelter in place orders. Be flexible with solutions, and make sure your client is in line with those solutions. For instance, be prepared to conduct interviews outside normal business hours. Step up and be willing to take the laboring oar in gathering documents, contacting witnesses, and scheduling interviews. Finally, stay ahead of inevitable delays by beginning to draft the factual portion of your investigative report as the investigation proceeds, rather than waiting until the end. As the workplace continues to change in response to COVID-19, so too must the workplace investigator be willing and able to adapt.
Skillfully Conduct Remote Videoconference Interviews: As social distancing and stay-at-home orders become commonplace, in-person interviews will cease. Implement streamlined measures to replace in-person interviews by conducting videoconferencing interviews. To do so, make sure to experiment, practice, and get accustomed to using platforms such as Zoom, BlueJeans, Skype, or FaceTime. Communicate early and often with witnesses to make sure they are also comfortable with the chosen technology. While videoconferencing requires more skill and practice than a phone call, it lends itself better to rapport building. In a videoconference, you can still make eye contact with a witness. Consider creatively building rapport at the start of your remote interview by discussing topics unrelated to the investigation. Pick neutral topics, such as the weather, adjusting to remote work, or make a lighthearted note about the uncertain times we are experiencing with this pandemic. Avoid commenting on loaded topics, such politics or the current death rate of COVID-19. Finally, videoconferencing helps avoid some of the pitfalls commonly posed by telephone interviews. For instance, unbeknownst to the investigator, interviewees might be audiotaping the interview, secretly have someone listening, or be in a public setting during the call.
Continue To Make Credibility Determinations: How can an investigator determine the credibility of a witness without visually observing them in person? Investigators must remember that witness credibility is virtually never determined by a witness’ demeanor, body language, tone, or micro-expressions. Instead, investigators should utilize industry-standard credibility factors, such as those set forth in jury instructions, rules of evidence, and materials from the Association of Workplace Investigators. These include corroborating evidence, motivation of parties and witnesses, consistent and inconsistent evidence, plausibility of events, material omissions, proximity in time, comparator factors, and articulated rationale for actions or decisions. Losing the ability to observe a witness through use of video or telephone does not prevent the investigator from making credibility determinations.
Expect Changes In Types Of Complaints: As remote work becomes the new norm, we can expect changes in the types of complaints filed. For example, we may see fewer sexual harassment or bullying cases, given the decrease in social interaction among coworkers and students. On the other hand, social distancing has the potential to cause misunderstandings, potentially leading to increased claims of discrimination. Remote work arrangements may also increase concerns regarding misuse of employee time. We also anticipate seeing an impact on reasonable accommodation complaints, given the disruption COVID-19 has had on the physical elements of the workplace. Finally, we expect more employers will request climate surveys, as the decrease in face-to-face interaction brings with it a decreased ability to monitor workplace culture. Investigators need to anticipate and be sensitive to the anticipated changes in the types of complaints.
Grasp The Opportunity: This is an immense challenge none of us have dealt with. Every crisis, however, reveals a new opportunity. Stay positive and use this time to make yourself a better investigator. For example, become adept at using multiple platforms for teleconferencing interviews, find new ways to share documents through platforms like Dropbox or DocuSign, develop new ways to build rapport with remote interviewees, and challenge yourself to deliver top-notch reports even under these difficult circumstances. Above all, stay calm and confident. We will get through this, and we will be better for it.
Despite the challenges imposed upon us by COVID-19, it is still crucial to conduct investigations that are neutral, timely, and thorough. As you adjust to conducting remote investigations, make sure to balance the health and safety of all participants with the need to obtain relevant information. By understanding what lies ahead, you will remain productive, effective, and healthy.
Download our checklist: How to Conduct Workplace Investigations with a Remote Workforce
Sue Ann Van Dermyden is a founding and senior partner of Van Dermyden Maddux Law Corporation. She has been an employment attorney since 1993, her practice focusing on conducting workplace and Title IX investigations.
Matthew Rose is an Associate Attorney with Van Dermyden Maddux Law Corporation. His practice focuses on conducting workplace and Title IX campus investigations.
The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.
