Conducting Investigations while Social Distancing

By Tracey Levy, Susan Brecher and Gayle Wasserman

Many employers have found that the volume of employee workplace complaints receded substantially in the immediate aftermath of the stay-at-home measures mandated in response to the COVID-19 pandemic. That decline, however, is anticipated to be a short-term lull. Inappropriate workplace behaviors can occur even when employees are working remotely. Employees can certainly engage in offensive conduct electronically – through text messages, instant messaging, phone or video calls or emails – and those media have only assumed greater prominence as a means of communication in a remote working environment. Additionally, as the initial social and economic shock of the pandemic begins to subside, we anticipate that there will be new employee complaints that may be prompted by hiring, staffing, and other decisions made by employers as they navigate the challenges of conducting business during the pandemic. And significantly, employees working under the stress of current circumstances, trying to balance family, work and economic issues, may engage in unprecedented inappropriate workplace behaviors, toward other employees or the organization itself.

New complaints will prompt new workplace investigations, but how should those investigations be conducted? In the past, in-person interviews were widely recognized to be the optimal approach and a human resources best practice. As with so much else in the workplace, conventional norms need to be reconsidered in the context of the pandemic. Some of the benefits of in-person interviews may not be achievable with social distancing measures. With proper preparation, many of those perceived benefits can be realized through videoconferencing. Videoconferencing also serves as the ultimate social distancing measure, and thereby alleviates many of the downsides to in-person interviews in a COVID-19-preventative world.

Considerations When Conducting Investigation Interviews

In a workplace, once an internal complaint is made, the investigator begins the critical process of planning the investigation and determining how to best gather the information necessary to draw conclusions as to what occurred and whether any policies have been violated. The most important component to an investigation is the investigation interviews, through which the investigator can ask questions and gather relevant factual information. In order to conduct these interviews in a thorough and neutral manner, the investigator needs to prepare for them.

Challenges of In-Person Interviews with Social Distancing

The conventional view has been that in-person interviews provide investigators an advantage when gathering information in these interviews. Many investigators find meeting in-person most easily enables them to put the interviewee at ease and encourage the interviewee to share what the interviewee knows. In-person, the investigator can identify who is present and can visually and auditorily assess the confidentiality offered by the meeting location. The investigator also views the interviewee’s facial expression and movements and overall demeanor, which may be a factor when determining credibility.

Investigators required to wear face masks in compliance with social distancing guidelines will lose much of the rapport gained by these in-person meetings. As investigators, we most frequently convey openness and receptivity through a slight smile and a warm tone of voice – both of which are negated by a mask, and the mask may make the investigator seem more intimidating or unapproachable. Likewise, face masks obstruct the interviewee’s facial expressions, and thereby impede an investigator's ability to observe the interviewee's demeanor. Also, in organizations with limited space, it may not be possible to identify a suitable location from a confidentiality perspective that is also large enough to facilitate the recommended social distance between the participants. Clearly, social distancing measures warrant reassessment of the best practice of in-person interviews, and consideration of a new approach.

Benefits of Videoconferencing

Videoconferencing becomes perhaps the best option for interviews in the pandemic environment, even where the parties are physically present in the workplace. With appropriate protocols, video conferences assure both parties the recommended privacy and confidentiality, and can allow both parties to form a more natural connection and build the trust and rapport necessary for a successful investigation interview. Additionally, while video conferencing does limit the typical “demeanor” assessment associated with credibility analyses, it also offers an opportunity for investigators to rethink the criticality of observing demeanor. An interviewer's assessment of demeanor, by itself, should not be a reliable measure of credibility.

To realize the benefits of videoconferencing, planning and preparation by investigators are absolutely essential. Factors that are standard considerations in every investigation interview take on new significance in the videoconferencing context, including:

• conveying professionalism;
• preparing logistics for the interviewee’s participation;
• setting parameters at the outside of the interview; and
• adjusting the pace and approach to the interview consistent with the virtual setting.

Conveying Professionalism

In any investigation interview, it is important to establish the investigator as a credible person who takes the investigation process seriously and thereby encourages the interviewee to be forthcoming and candid. To this end, in all investigation interviews, the investigator should appear professional, trustworthy and approachable. When interviewing in-person, this is addressed by a professional appearance and a calm and welcoming demeanor. On video, technology and location must also be considered in advance of the interviews. The investigator should test the quality of the equipment being used to ensure a clear picture, good sound quality, and a reliable internet connection. We often use headphones with a built-in microphone, as we find they can help block extraneous noises and prevent speaker feedback.

Lighting and location should also be considered. We avoid conducting investigation interviews on a cell phone, based on considerations of sound and viewing quality. Consider whether the lighting is sufficient and the camera angle is appropriately aligned to clearly illuminate the investigator’s entire face. Also consider whether the background appears professional. The investigator can achieve the appearance of a professional-looking environment either by conducting the interview from an actual office or through neutral physical or virtual screening.

Preparing Logistics for the Interviewee’s Participation

Space and Timing

The next step is to focus on the logistics in regard to the interviewee’s experience participating in the interview. Select the video platform and consider the implications with regard to interview space, scheduling and parameters. Over the past decade, we have in various contexts had occasion to conduct workplace investigation interviews through organizations’ internal videoconferencing systems and external technologies. There are unique features and considerations to all the technologies, and the investigator should consider which option works best personally and for the organization. To ensure privacy, the investigator should password-protect the scheduled meeting, and retain the right to control who is granted access.

The space and scheduling for the interviewee need to be considered differently when planning for a videoconference interview. That includes:

• arranging access to a space with four full walls and a closable door, if the interviewee will be in the workplace (such as an office, conference room or phone booth);
• confirming in advance that the interviewee will be able to speak privately; and
• exploring what time of the day or evening better allows for the interviewee to have a private conversation and be focused on the matter at issue.

It is also worth considering some unique issues that arise with the interview of a remote worker. The interview may be conducted from the interviewee’s home. We have seen interviewees participating from their own or a child’s bedroom, a basement, a garage, and other quite personal spaces of their homes, or even in a vehicle, to assure a closed door with greater privacy and less risk of interruption. The investigator may see a personal part of the interviewee’s life that the investigator otherwise would not know about – and it is critical to focus on the issue at hand, not extraneous information. Also, scheduling flexibility becomes more important with videoconference interviews of remote workers, particularly when family members are likely to be around. We have scheduled investigation interviews outside business hours, both early in the morning and into the night, to accommodate interviewees with family responsibilities that make an uninterrupted daytime interview too challenging.

Notice for Interviewees

Consider the amount and content of the notice that the organization provides for each scheduled interview. For face-to-face interviews, some organizations follow a practice of scheduling the intake meeting with the complainant, and call the respondent and other interviewees in for interviews on very short notice. That approach may not be feasible with videoconferencing, as it may preclude planning the logistics of room location and timing, and thereby impede privacy and confidentiality. At the same time, providing too much advance notice to many interviewees presents a risk of them learning about and conferring with each other. Consider how much notice is needed to balance those concerns.

If the sequencing of certain interviews is critical, then it may be preferable to postpone contacting additional interviewees until the preceding interview has been scheduled, as the interviewee may not have appropriate availability on the desired day. At the same time, to the extent the investigator can be flexible on sequencing, that will better facilitate progressing the interviews.

Further, make clear to the interviewee that the interview will be conducted by videoconference. Confirm that the interviewee has access to a device with a working camera and understands the expectation that the interview will be conducted with cameras on.

Third-Party Considerations

If the interviewee requests that a third party join the investigation interview, such logistics also should be considered and addressed in advance. If the participation of legal counsel, a union representative, or a colleague or family member is inconsistent with the policies of the organization, that needs to be addressed before proceeding with the interview. If a third party is permitted, clarify in advance the role of the third party, which generally is considered a support function, and not direct participation. Also consider if possible whether to disable the private chat feature on the videoconferencing program, and whether to instruct the third party not to text with the interviewee during the interview. Similarly, if the investigator will be joined by anyone – a notetaker, legal counsel, or a representative from the organization – the role of that third party should be clearly defined in advance and made known to the interviewee. All participants should make themselves visible on video.

Backup Plan

Finally, consider having a back-up plan, which could involve switching to a different video platform, rescheduling for a different time, or switching to a phone-only interview if necessary, in the event of technological glitches for either party. We suggest sharing the back-up plan with the interviewee in advance to make the interviewee more comfortable. If it becomes necessary to transition to the back-up plan, the investigator should be mindful of how transitioning to a new technology platform or meeting time impacts the tone and tenor of the interview.

Setting Parameters at the Outset of the Interview

Upon commencing the interview, the investigator should reconfirm that the interviewee is in a private location and is free from distraction and other responsibilities. Identify any parties who are present or participating, such as a notetaker, and ask if anyone is present with the interviewee. Remember that just because the investigator does not see anyone else does not mean that no one else is in the room and able to listen in. This is true for audio-only meetings as well.

Also consider addressing up front the expectations with regard to recording the videoconference – both in terms of the investigator recording the meeting, and expectations on the interviewee recording the meeting. In some states, recording is not permissible without the other party’s consent and in others, only one party has to consent. Be mindful that, if the investigator is recording, it may inhibit interviewees from disclosing information. The investigator should document having made those inquiries and received confirmation from the interviewee. If, at a later date, it comes out that someone else was present and listening to or observing the interview, or that it was being recorded, that information may be relevant to assessing the interviewee's credibility. As in all investigation interviews, the investigator should assume someone other than the interviewee is a party to the meeting, and act in a manner that is beyond reproach.

Adjusting Pace and Approach for the Video Setting

When conducting the actual interview, be prepared for the meeting to take longer than might occur in-person. The investigator may need to repeat questions, or allow the interviewee to take a break periodically. It may be necessary to schedule more than one session, particularly for more sensitive matters or a lengthy recounting of events. Overall, more patience is required.

Also, the investigator needs to be even more mindful of tone and facial expressions than usual, and make eye contact regularly. With a video screen between the parties, it is more critical for the investigator to convey receptivity to the interviewee’s account, and encouraging the person to speak. Consider asking about the interviewee's emotional state – how the person is feeling now, and how the interviewee felt at the time as a result of an incident that the interviewee has just recounted. If an interviewee is shifting posture or crying (both of which can be observable on a videoconference), the investigator can ask about it – "you seem uncomfortable right now, why is that?" or “you seem upset, would you like to take a break for a moment?” Perhaps the interviewee has a bad back and needs to shift to alleviate physical discomfort, or is crying as an adverse reaction to a medication. We have experienced both those scenarios. But it also is possible that the experience of retelling a particular incident makes the interviewee so emotionally uncomfortable that it manifests physically as well. In either case, asking the question provides far greater insight into the interviewee’s emotional state than simple observation of demeanor, and the interviewee’s response to the investigator’s question is factual information that can be documented in the interview notes.

Final Considerations

Irrespective of the concern raised, an investigator’s role is to get information and make factual findings. That objective is readily achievable under current social distancing measures by videoconferencing, and we are going to be creating new norms and best practices for this forum. Considerations of confidentiality, privacy, rapport, and assessing demeanor are all achievable in the context of a video interview. They require appropriate planning and protocols in advance of the interview, attentive inquiry and patience by the interviewer, and extra awareness to the interviewee’s concerns and environment.

Tracey Levy is the Founding Member of Levy Employment Law, LLC and has more than 12 years of experience conducting workplace investigations. Ms. Levy also is an Educator – Professional Programs with the Scheinman Institute at Cornell University.

Susan W. Brecher is the Director of Employee Relations, Internal Investigations and Employment Law Programs at the Scheinman Institute, Cornell University, ILR. She is also an attorney who specializes in the field of employment practices, internal investigations and dispute resolution.

Gayle F. Wasserman is the founder of Wasserman Law, through which she has for more than 15 years been providing businesses with employment law and human resources counseling services, including conducting workplace investigations. Ms. Wasserman also is an Educator – Professional Programs with the Scheinman Institute at Cornell University ILR.

Ms. Levy, Ms. Brecher and Ms. Wasserman collectively develop and deliver the Scheinman Institute’s roster of courses on conducting effective workplace investigations.