By Emily Wajert

Law360 (August 27, 2020, 4:38 PM EDT )

Emily Wajert

The world turned upside down when the COVID-19 pandemic struck, mandating office closures and forcing many employers to transition important business functions from being in-person to fully remote with little notice.

While offices are now starting to reopen in certain parts of the country, such reopenings do not necessarily indicate a full return to normal. As the number of COVID-19 cases appear to be rising in several states, it seems increasingly clear that employers cannot afford to defer many important employee operations — including workplace investigations.

As such, employers may need to be prepared to handle workplace investigations remotely — whether that be through Zoom, Teams, LoopUp or similar videoconferencing platform — even if some employees are returning to their offices.

Here's a list of six tips for employers to keep in mind when conducting virtual investigations — with a "Hamilton" twist.

1. If you practice one or two times, that would be enough: Interviewers should take time to familiarize themselves with the online platform and tools they need to successfully conduct interviews.

In ordinary circumstances, workplace investigations typically rely on in-person interviews. However, due to the pandemic, it may be some time before employers are able to return to this traditional model fully. Conducting interviews over platforms such as Skype or Zoom can be a suitable alternative that still allows interviewers the opportunity to engage with participants, observe their mannerisms and develop a rapport.

However, even veteran investigators should take some time to master their chosen platform prior to the interview and ensure they understand the technology and tools. Do you know where the mute button is? Does your microphone work? Have you planned how you are going to take notes and view the participants at the same time?

Employers should encourage interviewers to get familiar with the particular technology so as to ensure a productive, successful interview. And interviewers should make sure investigation participants have a basic knowledge of the tools as well. Moreover, despite their usefulness, some videoconferencing platforms have faced a variety of security and privacy concerns as the public has shifted from in-person meetings to remote communications during the pandemic.

An increase in users on these platforms led, perhaps predictably, to an uptick in hackers finding vulnerabilities and interlopers disrupting meetings. The spotlight on these shortcomings has resulted in several lawsuits being filed against videoconferencing platforms questioning their security efficacy. Due to these concerns, employers should have their information technology team evaluate which virtual platforms are best for their company and advise interviewers about which platforms the company feels are appropriate for the investigation.

2. It's quiet upstairs: Interviewers and participants should ensure they have found a quiet, private space for the interview.

We know with a full house of kids, roommates and pets this may seem unimaginable, but to the extent possible, all investigation participants should try to secure a quiet, private space for the virtual interview. Often, workplace investigations involve sensitive information that can be difficult for complainants, victims, witnesses or employees to discuss. Employers should instruct both interviewers and interviewees to minimize the risk of distractions by finding a secure, private spot in their homes.

Moreover, it is important for employers to remember that legal privileges may be affected if other people — such as spouses, children or roommates — are in the same room or can hear the interview. Employers should instruct interviewers to seek confirmation from participants that they are alone during the interview so as to help preserve the privilege and confidentiality of the interview.

3. Don't throw away your shot: Investigators should allocate extra time in the investigation schedule, plan for pandemic-related difficulties and adhere to written procedures.

In order to be effective, an investigation must be planned in advance and then properly executed. A significant delay from the time an employee raises a complaint to the start of an investigation could expose an employer to potential additional liability. Moreover, employers should always aim to quickly interview key witnesses after a complaint is raised to avoid any memory lapses witnesses may have and to ensure critical witnesses are still available to be interviewed.

However, as evidenced by the tragic death of Alexander Hamilton, the first U.S. Treasury secretary, even the best plans can fail at the last minute. Sometimes, technology fails. Sometimes, especially in a pandemic world, other emergencies arise.  

Employers should be prepared to be flexible with witnesses who may have trouble with technology or have scheduling conflicts due to child care or other intervening issues. While it is important to conduct interviews promptly, employers should think past tomorrow and consider building in time for repeat or continued interviews if technology fails or rescheduling is needed.

It is also important for employers to remember that general investigative policies, such as fairness, are equally applicable to virtual investigations.

Employers may recall that in 2019, the U.S. Court of Appeals for the Second Circuit in Menaker v. Hofstra University[1] held that the plaintiff, a target of a sexual harassment investigation, may proceed with his own sex discrimination lawsuit against the university, under the theory that the investigation into his alleged misconduct was permeated with bias against men. 

The Second Circuit's decision was based, in part, on how the university deviated from its own investigative procedures. The court believed these deviations supported Menaker's theory that the university acted under pressure from a growing societal sentiment that colleges and universities need to take a stand against male-on-female sexual assault and harassment.

Menaker serves as an important reminder for employers to ensure employees conducting investigations, including virtual investigations, are well versed in the company's written policies and procedures and conduct such investigations in conformity with the company's written policies. Deviation from such written policies may cause employees to rise up and take their own shot against the company. Employers should consider if any changes need to be made to existing investigation policies to reflect new remote protocol.

4. History may have its eyes on you: Investigators should not forget about important privilege issues and confidentiality warnings when conducting interviews.

Employers should remember it is easier in a virtual investigation format to record interviews. In fact, many videoconferencing apps have a specific function that records meetings. While it has always been important to provide proper instructions regarding expectations of confidentiality or privilege during interviews, in a virtual format, employers should ensure they are clear about such expectations at the start of the interview.

With regard to confidentiality instructions, employers may recall that the National Labor Relations Board ruled in December 2019 that employers do not violate the National Labor Relations Act when they create facially neutral policies requiring employees to maintain confidentiality during open workplace investigations. The case, Apogee Retail LLC d/b/a Unique Thrift Store,[2] overturned a 2015 Obama administration-era decision — Banner Estrella Medical Center[3] — that set a precedent that such confidentiality mandates infringed on the rights of employees under the act to engage in "concerted protected activity."

In Apogee, the NLRB concluded that the framework set forth in Banner Estrella improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both U.S. Supreme Court and NLRB precedent. The new NLRB standard makes clear that an employer may properly require witnesses, the accuser and the accused to maintain the confidentiality of investigative information during workplace investigations.

However, even with this new standard, employers are cautioned not to guarantee complete confidentiality during the investigative process as an employer may be required to disclose information learned during the course of the investigation to take appropriate remedial action. With increased capabilities to unknowingly record remote interviews, it is imperative investigators relay clear confidentiality instructions that comply with applicable law at the start of the interview.

5. Have a right-hand man (well, person): Employers should consider multiple interviewers.

General (later-President) George Washington relied heavily on his key staff, including Hamilton. Investigators conducting an interview should consider relying on a right-hand person to take notes or observe the interviewee during the interview to ensure notes are adequate and capture the entire interview.

In many workplace investigations, employers can learn a lot from the way a person answers a question and their mannerisms during the interview, as opposed to simply relying on the individual's answers. Observing the interviewee's behavior can be key to conducting a thorough investigation.

While nonverbal actions alone may not give a definitive answer as to whether someone is being deceptive, it may be an indicator that more questioning should occur. Conducting interviews via remote platforms increases the risk that an interviewer may miss important nonverbal cues, such as shifting position and avoiding eye contact.

In all likelihood, companies are not used to conducting workplace interviews completely virtually, adding an additional layer of complication for interviewers to navigate. Having multiple interviewers will help capture nonverbal cues that otherwise may be missed.

6. What comes next? Investigators should quickly memorialize interview notes for appropriate use by the investigative team.
The end of the investigative interviews typically does not mark the end of the investigation process. Employers then must analyze the investigative findings to determine if any action needs to be taken.

In order to ensure efficiency and accuracy in this process, employers should instruct all interviewers to memorialize their interview notes shortly after the interview is completed. Investigators should ensure their notes from interviews are as factual as possible, contain as much relevant information as possible, are dated, and indicate the duration and time of the interviews.

Often, internal investigations into allegations of workplace misconduct can lead to litigation. Employers should keep a clear paper trail of the evidence and a record of all interviews conducted and of notes regarding any findings, should fact discovery later require disclosure.

Employers should also consider the costs and benefits of drafting a final report of investigative findings to memorialize in writing that the employer took the situation seriously, responded immediately and appropriately, and had a documented good faith basis for any actions taken during or as a result of the investigation.

Because virtual investigation may be a large part of the new normal, it is important the employers take the time to get organized and develop a plan to handle remote internal investigations now. Hopefully these tips help employers as we all try to navigate the new normal.

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Emily M. Wajert is an associate at Kramer Levin Naftalis & Frankel LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 935 F. 3d 20 (2d Cir. 2019).

[2] 368 NLRB No. 144 (2019).

[3] 362 NLRB 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C. Cir. 2017).

[4] Lyrics from "What Comes Next?" written by Lin-Manuel Miranda for "Hamilton."

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