03-03-2021
By Amy Nickell Jacobs, Esq.
The impact of COVID has been far reaching. A significant shift for EPS and its consultants has been the need to provide services virtually for our clients, including investigations. In person interviews have been a hallmark, and staple, of EPS investigations for 25 years. Nearly a year into the COVID era, a time period in which EPS has delivered almost 100 virtual investigations, we share our impressions and guidance for adapting to this new investigation approach.
Virtual investigations done via video conferencing have distinct advantages. First, flexibility. The investigator and the witnesses have more flexibility as to both time and location of the interview. Additionally, conducting an investigation with witnesses in a myriad of locations - working from home, on a job site, in the office, in a manufacturing facility - eliminates both the time and expense associated with travel necessary for in-person interviews. This leads quickly into a second advantage, efficiency. Both investigators and witnesses can often begin interviews much more quickly when the need for travel and commuting and other logistics on both sides is eliminated.
There are, of course, some clear disadvantages to virtual interviews and some aspects of virtual investigations that are simply different from their face-to-face alternatives. In person interviews can provide subtle clues that may not be recognizable via video conference as a virtual interview will have, by its very nature, a degree of remoteness not found in a traditional face-to-face meeting. A person’s demeanor when they first enter the room, their comfort or discomfort interacting with the investigator, and their body language during the interview can all be visual clues that will still be noticeable in a call, but not to the extent available in an in-person meeting. Additionally, the investigator does not have the same degree of control over the circumstances of the interview. The witness is required to take responsibility for their technical participation, and that ability may be limited, or even presented as limited when, in fact, the technology may be readily accessible. The witness has the ultimate responsibility for the privacy and context of the interview area, ranging from interruptions from family members and pets to outside ambient noise. This shift of control from the investigator to the witness in the physical location may impact the effectiveness of the interview, as well as the investigator’s potential ability to assess the credibility of the witness.
Traditional investigations often take place on site at the employer’s location. The physical layout of the work area may be an important consideration when evaluating the complaint. Because this information is not as easily (or at all) observed in a virtual investigation, the investigator may otherwise need to assess the work area as it relates to the substance of the complaint. Requesting a virtual tour of the facility in question by a company representative is a good alternative to physical presence on the premises.
Given the restrictions on personal interactions and travel, as well as the range in individual tolerance level for potential COVID exposure, the pivot to virtual investigations has been, on balance, an advantage for our clients and employees involved in an investigation. EPS consultants, all licensed attorneys, have performed thousands of employee complaint investigations and have extensive experience trouble-shooting obstacles in investigations, and this experience has transferred well to the COVID obstacle of limited, if not zero, face-to-face interactions. There are, however, important things to consider when embarking on a virtual investigation.
Choose Your Platform
First, establish the appropriate platform for the investigation. There are many options – Zoom, Microsoft Teams, Skype, FaceTime, and Google Meet are just a few examples. The client may have a preferred platform which the investigator should access and learn how to use. No matter the choice, the investigator and witness both must be able to adequately interact with the technology. It is possible that individual witnesses may have different skill sets or access to limited technology options, thus requiring a different platform for their interview. For example, Teams may work for some witnesses while FaceTime could be the best application for a witness who needs to conduct the interview on the phone in the car. Discuss technology with the client at the outset, but be prepared to adapt to individual witnesses and circumstances.
Communication, Scheduling, Confidentiality
Second, make expectations clear in your scheduling outreach with the individual witness. Whether you make initial contact by phone or email, clearly state your request for a video call at a time when the witness can be a in private area and have the ability to talk openly. Include a statement in your initial contact with the witness about working together to ensure a video call to forestall a situation where the witness does not know how to connect via video. If this occurs, the investigator has to decide between continuing without video, or rescheduling for another time. An audio only call with a minor, peripheral witness may be sufficient, but it is not the preferred circumstance for a complainant, respondent, or key witnesses. Video allows the investigator to establish a more personal connection with the witness, and observe facial gestures and reactions as part of the conversation. It allows clearer understanding of the witness’ verbal response as well. Video is also important to minimize the possibility of the presence of an unidentified third party in the room. It is key that the interview involve only the witness and the investigator, unless agreed to and coordinated in advance.
This raises the question of how to accommodate legal counsel for the complainant and the respondent. If the client allows legal representatives (or other third parties) to attend the interview, the best approach is to insist that the legal representative attend via video as well. This is necessary even if the third party is physically present in the room with the witness. The investigator has the right to observe any silent or written communication between the witness and the lawyer, especially if it appears that the lawyer is coaching the witness.
When scheduling, emphasize the confidential nature of the interview to highlight the importance of a private location. This may be difficult for some witnesses, many of whom will be in a work-from-home situation that does not provide much privacy. Awareness and empathy for individual remote working circumstances is a must. Be prepared to schedule outside normal business hours, or make other alterations, to accommodate any specific surroundings. The possibility for an unexpected interruption (family member, ambient noise from inside or outside the location, barking dogs, ringing doorbells) during the interview exists for both the investigator and the witness. A little grace all around is a helpful thing. As a courtesy, give the witness an estimate of how much time you anticipate needing.
Interview Preparation
Before you send the electronic invitation with the meeting link, review and adjust any appropriate settings for the interview. Technical considerations include the use of a password or waiting room, audio and video settings, recording options and others. A technical practice session prior to your first witness interview with a colleague is worth consideration.
If available, waiting rooms are generally preferable to a password for managing participants’ access to the call. Use of the waiting room puts the start of the interview in the control of the investigator instead of the witness, and does not require the witness to keep track of a password. If a password is enabled, be sure to provide that information in the invitation to the witness as well as in any confirmation communications.
Understand the video and audio options available in your chosen platform. There are often settings that help address lighting and ambient noise concerns. Disable any recording or chat options for participants. Understanding and setting these items in advance will prevent last minute scrambling and avoid wasting valuable interview time on technical issues.
Interviews often include questions about documents and videos. While document and video sharing is available on most applications, it is easier on some than others. Learn how to manage documents well in advance of the interview and have documents ready to share before starting to preempt looking for them during the interview. Again, a practice session with a colleague is highly recommended, but always be prepared to use an alternative, such as texting or emailing to the witness in the event screen sharing does not work. Preparation is key in minimizing technical glitches during the interview.
Managing the Interview
Expect the unexpected in the interview. You may need to work with a witness at the start of the interview to address technical issues. As mentioned above, some witnesses may have difficulty getting the video or audio to work. It’s important to have a strong working familiarity with the platform so you are better able to help troubleshoot.
Confirm that the witness is in a private area and can talk freely. Invite the witness to ask for a break if any need arises. The witnesses’ lighting or positioning in the room may inhibit a good visual connection. Help the witness correct any problems so that you can see him or her clearly. This might include moving away from a window, closing curtains, or simply shifting the positioning of the camera.
Be sure to consider your own virtual circumstances. Ensure that you are well lit, with minimal distractions in the background. Take steps to minimize ambient noise in your own setting. Consider raising your monitor to provide direct eye to eye contact with the witness. Dress professionally. Water and computer charging cords should be nearby.
The virtual investigation is a necessity in the COVID era. It is also highly likely that it will continue to be a key tool for employers even as COVID risks decline. Thoughtful and experienced preparation will certainly ensure that this type of investigation will endure as “the next best thing to being there” and in certain circumstances, perhaps even better.
You can listen to our conversation about our experience in delivering virtual investigations or watch our conversation on YouTube here.