COVID-19: What Lies Ahead for Workplace and Campus Investigators
Seemingly overnight, the world has changed. Resist the friendly handshake. Forego the group gathering. Cancel travel plans. The new normal — social distancing. As the United States, and the world, reacts to COVID-19, so too must workplace investigators.
On March 11, 2020, the World Health Organization officially declared the viral disease COVID-19 a pandemic. In the United States, COVID-19 cases continue to rise, causing significant disruptions to day-to-day life. Schools are closing their doors, colleges and universities are choosing to teach online classes only, public events are being cancelled, and professional sporting teams are suspending their competitive seasons.
COVID-19’s impact on the American workplace is also severe. Employers are requiring employees to stay home and work remotely. Seminars and trainings are being postponed or cancelled. Public transit and ride-share vendors are experiencing significant drops in ridership. At-risk industries like tourism, retail, and airlines are bracing for pending profit losses. In response to the growing concern, the U.S. Department of Labor authored guidance on preparing workplaces for COVID-19, and posted the guide online.[1]
What does this mean for the future of the workplace investigation? In this blog, we explore some of the impacts COVID-19 will likely have on workplace investigations. We also discuss potential solutions to the changing landscape.
Before we dive into the nuts and bolts, we want to express that, above all else, the health and safety of those involved in workplace investigations is at the center of our discussion. It is of the utmost importance that employers and investigators make decisions with this in mind. With that said, consider these possible changes we are likely to see in workplace investigations and some practical solutions:
Increased Use of Technology for Witness Interviews. As employers respond to COVID-19 by closing offices and instituting remote work protocols, the use of technology will become increasingly necessary. For some time, in-person witness interviews will likely decrease. This poses a challenge to investigators, since in-person witness interviews are the backbone to quality investigations. Be smart and flexible in response. Implement streamlined measures to replace in-person interviews by conducting videoconferencing interviews. There are several effective platforms to use, such as Zoom, BlueJeans, Skype, or FaceTime. Although it requires more creativity and people skills than in-person meetings, videoconferencing lends itself better to rapport building, given you can still observe facial cues and body language. Consider building up the ice breaker segment at the start of your interview and discuss topics unrelated to the investigation. Pick neutral topics, such as the weather or your respective commutes, or even the uncertain times we are experiencing with this pandemic. Videoconferencing helps avoid the pitfalls posed by telephone interviews. For instance, unbeknownst to the investigator, interviewees might be audiotaping the interview, or secretly have someone listening, or otherwise be in a public setting during a phone call. In some rare instances, telephone interviews may not be avoided in this current climate. They are not ideal and should be limited to those instances where videoconferencing is unavailable.
Adjustments to Rapport Building for In-Person Interviews. Rapport building strategies, for in-person, video, or telephone interviews, will need to be adjusted as a result of the rising spread of COVID-19. If a determination has been made that it is safe to conduct an in-person interview, investigators will need to balance their need to remain healthy with their need to develop rapport. Traditional rapport building strategies such as shaking hands, handing documents to an interviewee, or handing a coffee cup may need to be curtailed. Think about ways to adjust these habits in ways that still develop rapport. Be creative — flash a friendly wave, the peace sign, footshake, fist bump or a thumbs up. Similarly, replace the coffee cup with a bottle of hand sanitizer and politely explain you want to be cognizant of everyone’s health during this time. Likewise, greet an interviewee and offer to sanitize the areas nearby, such as the chair or conference table.
Investigative Delays. Increased delays in initiating, conducting, and finalizing workplace investigations seem imminent. Interviews will be harder to schedule as employees choose to work remotely and/or self-quarantine at home and employers try to limit close, personal contact. Manage client expectations by explaining why an investigation may take longer than necessary. If delays persist, document your efforts to keep the investigation moving. Be flexible with how you obtain evidence, such as by relying on documentation in lieu of interviews when appropriate, or conducting interviews with less-crucial witnesses remotely instead of in person.
Changes in Types of Complaints. As social distancing and 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. The remote work arrangements may also increase concerns regarding misuse of employee time. We anticipate also seeing an impact on reasonable accommodation complaints, given the disruption COVID-19 has had on the physical elements of the workplace. Investigators need to anticipate and be sensitive to the anticipated changes in the types of complaints.
Keep Calm. The world is uncertain and unsettled as of Friday the 13th.[2] So much of what we thought was impenetrable has turned out to not be so. This creates anxiety for many. Investigators should already have skills to put a witness at ease, but these times call for greater efforts to do so. The investigator sets the tone for the interview. Present calm and confident, and listen harder than ever.
Despite the challenges facing workplace investigations, it is still crucial to maintain high standards and continue to conduct investigations that are neutral, timely, and thorough. Whatever strategies you implement, be sure to apply them in an impartial fashion. At the same time, avoid risky situations that put yourself or others in compromising positions. Be vigilant about balancing the health and safety of all participants with the need to obtain relevant information. By understanding what lies ahead, you can plan for the future, remain productive, and protect yourself and those around you.
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.
Lauren Becker is an Associate Attorney with Van Dermyden Maddux Law Corporation. Her practice focuses on conducting workplace and Title IX campus investigations.
[1] See: https://www.dol.gov/newsroom/releases/osha/osha20200309.
[2] March 13, 2020
The foregoing is for informational purposes only and is not legal advice, nor should it be construed as such.
