Conducting Workplace Investigations in the Time of COVID-19

By: Cereise Ross

In our last post, we reminded employers of their legal obligation to conduct investigations in certain circumstances, pandemic or not. But as we continue to adapt to a COVID-19 world, we have found some unique benefits and challenges in conducting a COVID-19 friendly investigation. This post canvasses some of those practical considerations, based on our firm’s experiences conducting socially-distanced investigations. As Khrystina McMillan – one of our senior litigators and workplace investigators – says:

During the pandemic, proper and careful use of technology can allow investigations to continue without undue delay, but investigators should remain flexible and sensitive to participants’ COVID-19 related considerations and anxieties.

Reliance on Technology: The Good and the Bad

Using technology to carry out workplace investigations is not unprecedented, but what is unprecedented is the extent to which investigators may now find themselves forced to rely on technology. The increased dependence on technology in workplace investigations raises both opportunities and challenges.

The Good – Opportunities for Efficiencies

Investigators who have adopted technology into their practices can be more efficient and less expensive. For example, investigators who meet with witnesses or parties virtually can save the costs and time to travel to/from in-person meetings and interviews. Indeed, given mask requirements for in person meetings, virtual interviews may be preferable as an unmasked virtual interview may better allow interviewers to assess the credibility of answers.

Although there have been discussions within the legal community about the effect of virtual examinations on credibility assessments, our team of litigators and investigators have found virtual interviews can be as effective as in-person. Proper preparation and a clear connection to see the witness/participant being interviewed help credibility assessments during virtual interviews.

The Bad – Increased Risks of Confidentiality Breaches

Because a workplace investigation is often a confidential endeavour, it is essential that use of tech aides, platforms and devices not create unnecessary risks of confidentiality breaches. Breaches of the confidentiality of a workplace investigation have the potential for devastating impacts on participants’ personal and professional lives and may compromise the outcome of the investigation.

One of the most apparent concerns of increased reliance on technology in investigations is that conferencing software with inadequate security safeguards can be hacked. Investigation meetings and interviews should be as private as possible and held in secure locations. Investigators should carefully research the virtual meeting software for use in investigations, with particular attention to cybersecurity features and protections (e.g. unique ID for each private meeting, participant management, and waiting rooms so hosts can approve attendees before they are able to enter the meeting). Investigators can also protect against data breaches with their own security measures, including: installing antivirus software and malware protection tools on their devices, password protecting virtual meetings, restricting the list of recipients of the private meeting details, and only sharing meeting IDs and passwords over private, secure networks.

Similarly, investigators should also be mindful of the potential risks with electronic document transfers. Before COVID-19, documents could be accessed on site of the investigation. As remote work continues, cloud storage, share files, and emails are the natural substitutes for hard copy or USB key transfers. However, it is essential that investigators ensure that their electronic document sharing methods are secure and that the participants are comfortable with these tools, especially when documents contain highly sensitive information. Where appropriate or necessary, investigators should consider taking advantage of password protection, expiry dates on access to share folders, limited access, and express agreement to use the technology.

Be Sensitive with Witnesses and Participants

Investigations must remain objective, efficient, thorough, and confidential – but this does not mean they cannot be compassionate of participants’ COVID-19 related obligations. More Ontario workers are reportedly feeling overworked and overwhelmed as the pandemic continues to affect workplace apathy and morale.[i] And we have all read about the extra pandemic burden on families, and women in particular, with respect to child care, education, elderly care, home maintenance, etc.  In short, while COVID-19 may not be relevant to the complaint, it can (and likely will) impact the investigation as participants are likely to be struggling with COVID-19 related anxieties and obligations. Where possible, flexibility and sensitivity should prevail.

For example, investigators should be sensitive to the mental health impact of the pandemic on witnesses and participants, particularly when assessing a witness’s credibility. The mental health impact of the pandemic may impact a witness’ memory, or his/her emotional capacity to recall difficult events. Investigators may consider implementing trauma-informed approaches to interviews and credibility assessments, even where the events at issue may not typically be considered traumatic.

Investigators should also offer more flexibility in scheduling the interviews to accommodate those working from home, or those with caregiving obligations, etc. Not just in terms of the time of day, but also in terms of length of the interviews. For example, a witness with young children at home may not be able to sit down for a 3-hour interview during the day, but may be better able to accommodate three 1-hour interviews. Such flexibility may ultimately help the investigative process by increasing cooperation from witnesses and participants, and avoiding undue delays in scheduling necessary meetings or interviews.

Takeaways

This article does not suggest workplace investigators throw out their playbook on how to conduct their investigations; instead, it is meant to highlight a few ways an investigation can be more efficient, secure and successful during the pandemic, including:

1. Increased opportunities for efficiencies through technology with lower or zero travel costs, and reliable assessments of witness and participant credibility.
2. Use technology cautiously and intentionally to facilitate the investigation. Explore added safety measures for electronic documents to maintain confidentiality.
3. Everyone is having a difficult time, and any added flexibility in scheduling could have a considerable impact on witness cooperation and completing the investigation without delay.

[i] Yadullah Hussain, “Posthaste: Six months in, we are mentally stressed, demotivated and can’t find relief at home — or in the office” Financial Post (14 October 2020), online: https://financialpost.com/executive/posthaste-six-months-in-we-are-mentally-stressed-demotivated-and-cant-find-relief-at-home-or-in-the-office.