As the COVID-19 pandemic carries on in Canada, it is becoming apparent that virtual workplace investigations may be here to stay for longer than we anticipated and most likely permanently. For many workplace investigators, virtually investigating was a new way of doing things and with nearly eight months under my belt, I have learned a few things along the way.
The benefits & drawbacks
Conducting virtual workplace investigations is often more time efficient and less costly. Travel time, mileage, parking and hotel stays are dispensed with and interviews are easier to squeeze into your calendar when you don’t have to actually attend at the workplace or meeting spot. However, some parties to an investigation may be less comfortable using and communicating over technology and it could hamper the investigator’s ability to read body language and develop a rapport without face-to-face interaction.
Picking and optimizing your platform
Video conferencing is almost always a better option than telephone calls, unless the witness is a minor one and/or is speaking to a discrete issue in the investigation. Many video platforms are available, but I prefer to use one that: allows more than two attendees (for support persons attending with a witness); provides a mechanism to share documents while conferencing; has a record function; and has a mechanism to control attendance with passwords and waiting rooms. As the investigator, you need to be familiar and comfortable with the platform, but I caution against choosing one that you’re comfortable with, but your witnesses are not. Do you prefer Zoom but the workplace you are investigating only uses Teams? Consider how much more comfortable it will be for your witnesses if you use Teams. It might be worth the investment to become adept with another platform by conducting a few test runs with colleagues or friends.
Setting yourself up for success
Ensure you have a quiet and private space to conduct your interviews and that you have a professional looking background. This may mean turning off your email alerts, ringers and making sure pets, family members or co-workers do not intrude on these confidential meetings. Advise your witnesses in advance to do the same. This can be particularly important to avoid co-workers or family members entering the witness’ space while they discuss confidential and sometimes sensitive information. For this reason, it is recommended confirming at the outset of the interview that the witness is in a private setting with no one else able to hear (unless of course, they have requested a support person be in attendance). In advance, also ensure your witness does not have any conflicting obligations like childcare and if that is the case, try to book interviews around that (consider scheduling in the evenings or weekends). You should also take measures to ensure your internet is functioning optimally and not being drained by teenagers streaming and gaming in your house!
Even the best laid plans can go awry, so I suggest you have a back-up platform that you can use if the planned one is causing problems. More than once, I have encountered this issue but solved the problem by quickly setting up a Zoom conference instead and moving onto that platform within minutes. If internet is an issue for you or your client, consider delaying the conference or if it’s urgent, try turning off cameras. If all else fails, consider completing it by telephone. I have now gotten in the habit of booking more time for virtual interviews to allow time for technological difficulties should they arise.
Share documents in advance
My practice is to have my witnesses review and sign a Confidentiality Agreement in advance of our interview. For in-person interviews, I ask the witness to bring it along with them to the interview, but for virtual interviews, I ask for it to be sent along electronically (scanned, faxed, photographed) in advance, if possible. Where you need to refer the witness to documents, you could consider either sharing your screen for the witness to see the documents (ensuring you are not sharing any other private and confidential information), or instead provide them in advance by email and ask them to have them available during their interview. This also makes it important to properly label and/or number your documents for easy identification where you cannot just hand the document over to the witness.
I have been pleasantly surprised that I have not felt that my ability to assess credibility in a virtual setting has been compromised, when compared to an in-person one. Most witnesses are visible on screen from their chest up, so facial expressions are still very apparent and depending on settings, I sometimes have an even closer view of their face than in a meeting room. Virtual interviews still allow an investigator to see most forms of fidgeting, lack of eye contact, facial expressions, raised voices or angered tones, stammering, etc. Some witnesses even seem like they may be more comfortable speaking from their own home than from a corporate boardroom they rarely enter.
An important COVID-specific challenge with interviews is that depending on your region and/or the personal comfort level of the participants, you and your witness may be required to wear a mask when attending an in-person interview, either because of local laws and/or the building rules. Consider whether you would prefer to conduct your interviews virtually in such cases.
We are in an ever-changing workplace and legal landscape right now so remember, above all else, be patient and be flexible with virtual investigations.
Does your organization require an external investigator to conduct a workplace investigation or do your internal investigators need support or assistance in conducting investigations? Contact the Siskinds LLP’s Labour & Employment Group today.