Rise to the Challenge of Remote Investigations

Allen Smith, J.D. By Allen Smith, J.D. June 15, 2020
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telecommuter at her laptop computer

​Investigating workplace issues is rarely easy and doing so remotely can be even harder. Some employers insist on in-person investigatory interviews, even as telecommuting has increased during the coronavirus pandemic. But many now rely on remote investigations, which bring unique challenges: stilted conversations, difficulty making credibility assessments from afar and at-home distractions.

"It is harder to establish rapport with anyone when you are not meeting face to face," said Janene Marasciullo, an attorney with Epstein Becker Green in New York City. "Likewise, it may be difficult to ensure confidentiality of any communications because you and the person you are interviewing are not together, and the person you are interviewing may not have sufficient privacy to speak candidly."

It's also harder to assess credibility without being able to see someone's body language, she added.

Break the Ice

"Every good investigator engages in conversations as opposed to interrogating others," said Jonathan A. Segal, an attorney with Duane Morris in Philadelphia. The goal is to determine what happened relative to the issues subject to investigation, he noted. This is true regardless of how interviews are conducted.

Hon. Rebecca Warren, a retired prosecutor and now an attorney with Norris McLaughlin in Allentown, Pa., had this advice for investigators: "Start with easier questions to develop the interviewee's level of comfort, ask open-ended questions, listen and keep an open mind."

Many believe talking face to face makes for a better interview. "Meeting with someone in person generally helps enhance the potential for a genuine conversation," Segal said.

That's why David Barron, an attorney with Cozen O'Connor in Houston, encourages investigators to consider creative alternatives to onsite interviews while employees are working from home. "It is important to not concede that an investigation has to be done remotely," he said. "There may be middle ground, like meeting at a coffeeshop even if offices are closed or the employee is working remotely."

The interview time may have to be compensated, Segal noted.

Warren said one disadvantage of using videoconferencing tools for investigations versus interviews at the office is the inability to make unannounced visits, which she described as "a powerful tactic for an investigator."

"The rationale for such an approach is that a person engaged in misconduct will not have time to think of excuses or fabricate alibis," she explained. "No such surprise can be accomplished via remote interviews, which require advance scheduling.

"Gone are the days when the interviewer chose and controlled the physical location and appearance of the interview venue" in investigations, she added. "Remote interviews truly require an investigator to rethink the mechanics of an interview. What is the best method to observe an interviewee, establish rapport and obtain information?"

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Assess Credibility

If interviewing in person isn't feasible, videoconferencing, rather than conducting the investigation by phone, can help with credibility assessments because it allows the investigator to see the interviewee's facial expressions, Marasciullo noted. That will help the investigator know if an interviewee is uncomfortable with a particular subject.

However, it's important to remember that what may appear as discomfort might be attributable to something else. "Some witnesses prefer not to look directly into the camera or video, which can be mistaken as being not truthful when, in fact, it is simply a function of that person's culture or personal style," cautioned Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.

"Videoconferencing also helps the investigator to distinguish between situations where the witness has finished his or her answer from situations where the witness has paused to collect his or her thoughts or [to] regain his or her composure," Marasciullo said. "It is particularly important to make sure that the witness has finished his or her answer before asking another question." This can be hard during telephone conversations but interrupting witnesses tends to chill communications, she cautioned.

Taking extra care to engage in active listening is one way to establish trust even during remote interviews, noted Molly Batsch, an attorney with Greensfelder in St. Louis.

Minimize Distractions

Distractions may nonetheless interfere with a remote interview. A toddler may be walking around in the background, for example, or there might be a concern with real-time coaching or prompting by a third party off-screen, Warren said.

Marasciullo recommended that, when scheduling a time to talk, employers ask interviewees when they can speak confidentially and without distractions.

If the employee is too distracted during an interview or has a personal issue that has to be addressed, such as with his or her children, reschedule the call, Barron said.

"It is harder to take a break when an interview is being conducted by telephone or videoconference as opposed to an in-person interview," according to Marasciullo.

The investigator should indicate upfront that he or she will take notes to ensure an accurate record of the conversation. "If the investigator needs to pause to finish notes, the investigator should tell the interviewee so he or she does not become uncomfortable during a prolonged silence," she said.

Investigators who fail to take comprehensive notes and prepare thorough reports waste the company's time, said Andre' Caldwell, an attorney with Ogletree Deakins in Oklahoma City.

The same kinds of questions should be asked during a remote interview as in person. Segal said he has noticed a tendency to ask fewer questions in remote interviews. "Be aware of that tendency and avoid it," he cautioned.

When sharing sensitive documents, use a videoconference service that allows the investigator to share his or her screen with the interviewee to avoid delivering copies of the confidential documents by e-mail, Marasciullo recommended.

[SHRM how-to guide: How to Conduct an Investigation]

Uphold the Attorney-Client Privilege

Be careful not to inadvertently waive the attorney-client privilege, Marasciullo cautioned.

If the investigator will be working with an attorney, for example, the two should not use any chat function associated with the videoconference tool, she said, to avoid any possibility that the interviewee might see the communications. Such communications might affect the interviewee's answers, offend the interviewee or result in a waiver of the attorney-client privilege.

Investigators also should avoid using the recording function when using videoconference services because that, too, may lead to a waiver of the attorney-client privilege, she added. In many states, it is illegal to record conversations without the consent of all participants. Moreover, interviewees may be less candid if they know they are being recorded.

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