Despite ongoing shelter-in-place orders around our state, complaints still arise that require workplace investigations. However, as Covid-19 continues to change our world, the nature of complaints is shifting, and new methods of investigation may remain for the foreseeable future.
We previously anticipated that with large numbers of employees working remotely and a shrinking economy, employees are more likely to raise discrimination complaints regarding layoff decisions, accommodation claims if ill or disabled, and claims of harassing conduct over messaging platforms or in video meetings.
Yet as employers look ahead to a gradual lifting of shelter-in-place restrictions and strategize to bring their employees back to work, further claims appear forthcoming. Once employees begin re-entry to the workplace, it may look very different than it did before they left. If the re-entry process is not carefully executed, it could spark claims related to workplace safety. Further, if employees report the workplace is not sufficiently safe or in violation of county or state orders, retaliation and whistle blower claims could arise. Moreover, social distancing requirements may mean staggered shifts to limit the number of employees in the workplace. As employers make decisions regarding which employees should return to work and which employees can more safely remain working from their homes, we are likely to see new types of discrimination claims. Lastly, reports of xenophobia and verbal and physical attacks against Asians and Asian-Americans should put companies on high alert for potential claims of harassment or discrimination from these employees.
In addition to these new claims, new methods of investigation appear likely to linger. Even after employers begin bringing some of their employees back into the workplace, it may be advisable for investigators to conduct some or all interviews via video rather than in-person. While investigators have typically preferred to conduct interviews in person, a number of us have questioned for some time whether in-person interviews are always preferable to a video interview.
Those of us who have read (or listened to) Malcom Gladwell’s recent book Talking to Strangers find support for what we already knew: a witness’ demeanor tells us very little about whether or not that witness is telling the truth. In this book, Gladwell makes the point over and over again that our ability to assess a stranger’s truthfulness in face-to-face interactions is not reliable, thereby making it extremely difficult to analyze credibility from our interaction with the person alone. He gives countless examples of how the value we place in personal interaction is flawed. In one particularly compelling example, Gladwell cites a study showing that a computer provided with raw data relating to criminal defendants in bail hearings made decisions that resulted in significantly fewer crimes upon release when compared with New York city judges who granted bail after meeting the criminal defendants at in-person hearings.
Although an investigator may sense that a witness’ testimony appears reliable at an in-person interview, it is often not until after the investigator gathers additional evidence from other sources (such as other witnesses and documents) that the investigator is able to determine whether the witness is credible. In addition, it is typically not until after a witness interview, when an investigator is able to review notes from that witness’ testimony, that the investigator analyzes important facts that are less prominent when engaging with that witness face-to-face: such as subtle inconsistencies or admissions related to key facts. Thus, an investigator’s ability to determine credibility, or reach an ultimate finding, is not necessarily impacted by whether an interview took place in person.
Building rapport with a witness is an important precursor to obtaining information from that witness. However, even prior to Covid-19, many witnesses felt very comfortable with video calls in the normal course of their work and personal lives. Now, individuals within every sector of the population are familiarizing themselves with online video interactions. With this new level of comfort connecting over this medium, more witnesses will likely be open to allowing investigators to effectively connect with them via video, making it that much easier for an investigator to build rapport with a wider range of witnesses.
This new normal may reveal that conducting interviews remotely is as effective as in-person, but more efficient and less costly. Video interviews eliminate travel time for investigators and are easier to schedule with busy employees, resulting in investigations that can be completed more quickly and at a reduced cost. Further, a new mindset about video interviews could give investigators the opportunity to conduct investigations outside of their geographic area (but within the state in which an investigator is licensed). As many sought-after investigators are often at capacity, this could create a larger pool of external investigators for employers.
Many uncertainties are ahead as we prepare for the time when we will be permitted to leave this new normal and be required to adjust to another. However, it seems likely that investigations into unique claims will arise, and the video interview could become the rule, not the exception.
