There is no denying that the COVID-19 pandemic has changed the way we view “business as usual”. Many employers are wrestling with new ways of conducting business while their employees are working from home. Even though work is happening remotely, workplace issues still happen.
What should you do if you receive an allegation of discrimination or misconduct while everyone is still working remotely?
The good news — the usual ways we effectively investigate — work, even in a crisis.
The steps are the same. You just need to make a few adjustments. Before we tackle the adjustments, let’s review the basic steps for conducting a workplace investigation:
- Decide whether to investigate
- Take immediate action, if necessary
- Choose an appropriate investigator
- Plan the investigation
- Conduct interviews — keep confidential
- Gather evidence (documents, emails, text, and voicemail messages, etc.)
- Evaluate the evidence
- Make a decision
- Closure of investigation (let parties know results; take corrective action, if necessary)
- Develop a written summary of result
Now for the adjustments.
Follow your policies and procedures. Not every step needs adjusting. Many adjustment for remote investigations revolves around confidentiality and the interview process. But think about how to keep the process fair.
Decide if remote investigations are appropriate, given the current circumstances. This doesn’t mean no investigating because employees are not in the office.
It means, given the social distancing measures currently in place, decide how best to investigate.
Think about:
- How can you interview effectively?
- How can you gather evidence?
- Does delaying an investigation risk making the process unfair?
Who knows what?
Limit who knows about the allegations and the investigation. This can be challenging where fact-finding is remote. Other challenges include:
- Is evidence collected online secure?
- How will you share relevant information?
- How will you collect, access, and store physical evidence and documentation in hard copy?
How to conduct remote interviews
Remote interviews present unique challenges. You want the interviews to be confidential and private. But on a remote call or video conference, you have no way to ensure if anyone else is in the room.
You can:
- Send invitation links (with passwords) to virtual meetings and interviews. This helps keep others from accidentally joining the meeting when it is not their turn.
- Use video calls when possible. This allows the interviewer to see body language and facial expressions.
- Make use of screen sharing to refer to any documents.
- Ask the interviewee to verify that they (or anyone else) aren’t recording* the meeting (*consult with your employment law attorney for rules in your area).
Follow your policies and procedures as if the investigation is in-person.
Plan the investigation. Conduct interviews. Explain the process and each person’s role in it. Review their rights. Ask questions. Gather evidence. Evaluate. Make a decision. Let parties know the results — all, as if in person.
Remember, investigations are stressful for all parties involved. And the remoteness of it can add even more stress. Be flexible during the interview (for all parties). Offer breaks in the same way you would for in-person interviews, but you might ask them not to speak to anyone about their interview during the break.
Ready to perform remote investigations fairly and consistently?
Use these tips to adjust your investigation process.
Remember the usual ways we effectively investigate — work, even remotely.
Disclaimer
This article shouldn’t be construed as legal advice. If you have detailed questions, they should be addressed directly with your labor and employment attorney.