We are a week into our new shared reality of sheltering in place, limiting our excursions outside to what is essential, and practicing social distancing, while banding together in community to face an unprecedented pandemic. Our primary concern, and yours, should be the health and wellbeing of loved ones and those in our community who need our support.
And yet, despite significant disruption, for many of us work continues and will require agility and out-of-the-box solutions until we return to a more recognizable routine. At this point, we do not yet know when life and business might revert back to normal.
In the meantime, in the world of investigations, we anticipate some changes in the volume and types of complaints employers are likely to receive from employees. Further, COVID-19 demands some adjustments to our usual investigation procedures.
Volume and types of complaints resulting in investigations
It is likely that employers initially will receive fewer complaints as employees adjust to unprecedented disruption and focus their energies on coping and caring for themselves and their families.
That said, unsettled employees are more likely to raise complaints. Employees are struggling with widespread uncertainty and anxiety; they may be more likely to come forward with complaints now than at times of financial security. And employees who previously may have been reticent to raise a complaint may be more willing to complain if they are laid off or experience a significant reduction in work hours.
Businesses forced to lay off employees or reduce work hours may see increased claims of discrimination or failure to accommodate disabilities. Employees may allege discriminatory motive in decisions to keep one employee rather than another or to offer one employee more hours than another. Employees also may question whether discriminatory motive impacts decisions to permit some employees but not others to work remotely.
Because many employees will work remotely from home rather than in their usual workplaces, we expect employers will see fewer claims of sexual and other types of harassment. However, some claims of harassment or bullying could arise based on written, voice or video communication between employees. For example, some employees working from home may engage less professionally on video platforms than in person, creating the potential for harassment claims. Or, the stress many are experiencing could cause some employees to report perceived excessive demands from a supervisor as bullying or harassing behavior.
Adapting investigations to COVID-19 realities
Investigators typically prefer to conduct interviews in person where feasible. However, social distancing and shelter-in-place orders make in-person interviews impossible or ill-advised. Conducting interviews via video allows investigators to assist employers in meeting their obligation to promptly respond to complaints of unlawful conduct.
Well before COVID-19 became our new reality, investigators routinely conducted interviews via video for a number of reasons – to accommodate schedules, because of distance, or to protect employee privacy. Platforms like Zoom, GoToMeeting, BlueJeans, Google Hangouts, Skype or even WhatsApp and FaceTime facilitate effective remote interviews for many investigations (our preferred platform is Zoom). In one of our recent investigations, a number of witnesses resided in Central and South America, spoke Spanish, and were accustomed to texting rather than email. We used WhatsApp to arrange video interviews and we conducted interviews via Zoom, with a Spanish interpreter present in the video conference.
Video-enabled apps provide flexibility for witnesses, who need only wi-fi, a phone and preferably a pair of headphones to participate. However, when conducting interviews via video, investigators should take certain precautions to protect the integrity and confidentiality of the investigation, and the privacy of those involved in the investigation. For example:
• If HIPAA is a concern, investigators should confirm that the video platform they use is HIPAA compliant.
• Investigators (or those arranging interviews for the investigator) should send calendar invites using a “private” setting to prevent visibility for employees with shared calendars.
• Investigators should communicate in advance with clients about parameters for video interviews. In particular, investigators should inform their clients if a third party (such as an attorney, union representative or person of support) is expected to participate in a video interview. Investigators should also discuss the issue of recording video interviews with their clients (it is not our practice to record video interviews or to allow witnesses to record).
• Investigators should communicate in advance with witnesses about procedures for video interviews. Importantly, investigators should set expectations that the witness should participate in a video interview from a private location, preferably one in which the witness will not be interrupted. That said, investigators should understand that an interview from home is susceptible to disruption and should approach any unpredictability with flexibility and good humor.
In fact, flexibility and good humor can be useful tools for investigators in building rapport with witnesses over a video platform. Although today many workers are accustomed to communicating via video platforms in their work and personal lives, those witnesses less accustomed to communicating via video may find it challenging to develop confidence and trust in the investigator’s neutrality and role. Effective investigators are adept at connecting with witnesses and earning their trust whether in person or by video.
Finally, it is important to note that video interviews do not negatively impact an investigator’s ability to make reasoned and well-supported credibility determinations. Contrary to popular opinion, a witness’ demeanor or facial expressions are not relevant considerations in determining whether the witness is credible. In fact, studies show that most of us do a reliably poor job of assessing whether a particular person is truthful or lying based on our gut reaction or response to that person’s demeanor. Rather, investigators use objective factors to determine whether a witness is credible – such as motive, plausibility, and the existence or lack of corroborating evidence. For this reason, even if video diminishes an investigator’s ability to experience a witness’ demeanor or facial expression, a video interview need not impede an effective credibility determination.
In short, video interviews are an effective tool to gather information needed to reach factual findings, and our firm is well-versed in communicating with witnesses over video platforms.
