Around 42% of workers are working remotely during the pandemic.
This has shifted employment problems from the office to the home and is causing companies to carefully review how they are managing remote workers. Unfortunately, many workers aren’t following company policy and must be disciplined. Before disciplining these employees, companies need to conduct an investigation. Remote investigations are considered different from a typical in-person workplace investigation (guidance on those can be found here).
Setting up for the Remote Investigation
As with any investigation, the most important part is setting the framework to get the right evidence and collect all of the necessary information. In the work-from-home environment and use your own device workplace, there are a number of special considerations.
A business should check to see if employees signed an acknowledgement (ideally this would be in the handbook, but this may have been a new addendum given the impact of Covid) that the company has the right to save information and data from company programs, devices, and software. If your employee is using a company provided device, then all the data should be backed up remotely so that it is not lost should the employee attempt to delete it. This allows you to access data for the purposes of an investigation and for general company knowledge. Employees that are using their own devices may be required to install software on their computer/phone to create data that the company can access and monitor without affecting the personal use of the device. Essentially, companies that require or permit employees to use their own devices, such as laptops and phones, should ensure that those devices are set up to contain and share work data through whatever channels the company chooses to use. Some companies may have a remote desktop or other portal that shares information, while others may require individuals to log in to online programs where documents and other information can be kept. Companies must make sure that the data that will become the cornerstone of an investigation for a remote worker is not lost.
Checking what Misconduct Took Place
Before a workplace investigation there is always an incident, complaint, or a supervisor/member of management that has questions concerning employee conduct. The misconduct for remote workers is not the same as for workers that are working in person with each other in close contact. Issues concerning remote workers may be harder to determine. Among the differing issues of misconduct for these workers are workers that are sending inappropriate messages over text or other channels, not completing work in a timely manner, taking confidential information/trade secrets, visiting inappropriate sites on company computers, and that’s just to name a few.
There are a number of issues that are important to consider when conducting a remote investigation. These principles apply both when the investigation is being conducted for workers that all work at the same site and the investigator is remote, or when all parties are remote.
As with any investigation, the evidence is incredibly important. The evidence needed will depend dramatically on what company rule was violated. There are a number of questions that can be considered to help determine the best approach to gathering the evidence.
- What rules were violated?
- What means were used to violate the rules (computer programs, Slack channels, email, or other sources)?
- Who else witnessed the event? Who had access to the materials?
- Is the data saved somewhere that it will be preserved?
- Are there any witness statements about the event? Any formal complaints concerning the event?
- Is there any other information that will be useful?
Setting up Your Technology
Before getting into the heart of the important parts of the investigative process, investigators need to make sure that they have the right tech to conduct the investigation. Many companies will conduct investigations over the phone, which is ok but is not the most effective method.
As with everything else today, people are moving their investigations to Zoom, Microsoft Teams and other video conferencing services. To conduct an effective investigation through these services, companies must remember a few points.
● Use a dedicated room or channel that is private and only for this investigation.
● Make sure that you practice the technology to ensure that it will work properly on the day of the investigation
● Work with the various people you will interview to ensure that they have installed the software properly, are set up to use the software (have login information), know how to use the technology, are using the technology in a quiet place, and the other basics of conducting the investigation remotely.
● If employees do not have computers or are working onsite, then make sure that someone at the facility has set up the computer and will be present to help you manage the interview. They should not be in the room but need to be around in case of technology issues.
● If any documents or video will be shared through the software, then you should make sure to practice sharing this information.
● Remind the person being questioned to look at the camera (wherever that is on the device) so that you can get the best view of them to judge body language and whether they are being truthful.
● Make sure that the employee is not wearing a mask or other face covering so that you can view their expressions.
Ensuring Proper Interview Setup
During the interview, investigators should have another manager or member of HR with them to take notes so that the investigator can be focused on the conversation and their questions. The investigator should also ensure that the person that they are interviewing is alone and there is no one else in the room with them, which can be accomplished by asking them to use their camera to scan the room. If it is a unionized workplace, then the company must allow the employee their Weingarten Rights; the employee may have a union representative with them.
Interviews should be conducted as soon after the incident as possible to prevent the remote worker from deleting evidence or developing a reason that their behavior did not violate company policy. Obviously, companies still need to do some investigative work (see the above section on gathering evidence) before they are able to interview employees including reading witness statements, emails, text messages, slack channels, reviewing information from computers, and any other documentary evidence.
Evaluating Your Witnesses
The EEOC has some great information on how to determine whether a witness is reliable:
● Inherent plausibility: Is the testimony believable on its face? Does it make sense?
● Demeanor: Did the person seem to be telling the truth or lying?
● Motive to falsify: Did the person have a reason to lie?
● Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
● Past record: Did the alleged harasser have a history of similar behavior in the past?
Many of these factors remain the same when an investigation is remote. Inherent plausibility, motive to falsify, and past record are practically unchanged whether the employee is working remotely or if the investigator is remote.
However, determining an employee’s demeanor can be tricky during a remote investigation. The employee needs to make sure that they are looking at the camera so that the investigator can view their expressions carefully. The camera should be angled so that their face is captured and is not cut off. The investigator should encourage them to center themselves on the screen so that they do not go off the screen during the interview.
Corroboration is also something that changes in a remote investigation. It may be the case that the workers were remote, and you need to gather evidence regarding their behavior. In a remote working environment people are often alone. In an office environment, there may be additional witnesses to an event. Investigators need to carefully consider what information is available in the remote working environment and may need to involve IT to gather the evidence that is needed for the interview and the investigation.
Workplaces will need to continue to conduct remote investigations even after the pandemic ends. The future of work is changing dramatically. After COVID-19, it is likely that there will be more remote workers. By acting now and reviewing how to conduct a remote investigation, investigators will be better prepared to continue conducting these types of investigations in the future.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
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