HR and Employee Relations investigators are increasingly managing investigations in the virtual space. Sometimes the issue is simply logistics in interviewing field employees or simply the costs associated with corporate travel. And, in during the COVID-19 pandemic, the issue has been a public safety issue in requiring social distancing.
If you are an HR or Employee Relations’ professional with responsibility for conducting investigations virtually, here 4 best practices to help you do a great job:
Ensure there is an organizational policy on employees cooperating in internal investigations
Ensure you have a copy of the policy requiring cooperation and be ready to quickly email it to an employee, prior to conducting a telephonic interview or via Zoom or GoToMeeting. Some employees may try to avoid investigator’s requests for participating in an investigative interview. Therefore, in having a cooperation policy, it gives the investigator the leverage that is needed to garner the employee’s cooperation. If you are interested in a sample policy on cooperating in internal investigations, just email me at Info@HR-investigations.com
Establish opening and closing protocols for investigative interviews
This is a best practice regardless of whether the interview is conducted virtually or in person. Opening protocols are the specific bullet points the investigator covers to lay the groundwork for the interview. For virtual interviews, it is essential to also discuss recording and the need for the interview to take place in a quiet space without children or family members in the room. The closing protocols are the bullet points an investigator must share to wrap up an interview and discuss next steps. Closing protocols tend to be very organization specific, as processes vary from one organization to another. However, some standard closing protocols include discussion of confidentiality, signature (if required) of the interview conversation or prepared statement, discussion of any interim remedial action steps, or in the case of a subject it may require placing him/her on an administrative leave or a suspension, depending upon the circumstances. Additionally, closing protocols often discuss the next steps in order to set expectations, especially with Complainants.
Below are a few examples of opening protocols that are typical in employee misconduct cases:
- Thank the individual for meeting with you
- Explain your role and responsibilities as an (insert role) with the organization.
- Explain organizational process regarding internal investigations and clarify importance of not having others in the room, such as friends or family members
- Explain the requirement for him/her to cooperate according to organization policy.
- Discuss the necessity for truthfulness and candor.
- Explain the need to take notes.
- Discuss the organization’s non-retaliation policy and provide a copy of the policy.
- Discuss the recording or no-recording of the interview.
- Affirm that he/she believes that you can conduct a fair and impartial review of the matter.
- Discuss confidentiality. Explain the involvement of others will be on a need-to-know basis.
- Provide a copy of any applicable organization policy.
3. Determine requirements from legal for recording of interviews
When conducting interviews virtually, the subject will undoubtedly come up, “Are you recording this?” The answer regarding whether you will or won’t needs to come from your legal counsel. With Zoom and GoToMeeting applications, it is quite easy for an investigator to record the interview. However, just because you can doesn’t mean you should. Consult legal to determine if you will record. And, if you do, whether or not the interviewee will be entitled to a copy of the electronic file. This is particularly important when conducting interviews with employees who are part of a collective bargaining agreement (unions). It may be that recording is strictly prohibited. Or, it may be that if you do record the union member will be entitled to a copy. Also, be mindful of the individual states having one-party consent or two-party consent laws. You may be in a state that is one-party while your employee may be in a two-party consent state. Consult with legal and get clear guidance so that you can include that directive in your opening protocol.
4. Determine if a written statement will be prepared for signature, or if a document of conversation will be prepared, and if a signature will be required
This is another aspect of conducting investigations that applies to both in-person interviews as well as virtual. However, the issue of obtaining a signature becomes an added step when interviewing virtually. So, let’s first talk about the difference between a written statement and a document of conversation. A written statement is one that the investigator prepares, in first person language as though the interviewee had written it him/herself and is a summary of the conversation. This does take a bit more time to prepare; however, many organizations (especially those with unions and public sector employers) make it a requirement that a written statement be prepared, presented to the interviewee, and that a signature be obtained. Sometimes, investigators will encounter a particularly difficult interviewee who refuses to sign the statement. In that case, be prepared for how to handle it. I recommend discussing with Legal what your organization’s protocol is when that happens. In the case of a document of conversation, this is simply the investigator sharing the summary of what was discussed, but it isn’t nearly as “pretty” if you will as a signed statement. In a lot of cases a document of conversation is simply a number of pages of the notes the investigator took in response to each question asked. On the last page, the interviewee then acknowledges with a signature that this is what was discussed during the interview. In the case of working virtually, both a written statement as well as a document of conversation can be presented via a DocuSign system. This type of system is quite effective, but it will take a few moments to get the document loaded into DocuSign and sent to the employee for e-signature. Also, a good recommendation is put placeholders on the top of each page for the interviewee to e-initial. Again, this is a great best practice in union shop environments and will avoid challenges at a later date about the validity of the body of the document, should the case wind up in arbitration. E.g. “hey, what I said on page 4 isn’t what I said…” Well, if the interviewee initialed each page in DocuSign, that individual acknowledged that that was what was said during the interview. Also, be clear on whether or not a signature will even be required. My best practice: do everything you can to get a signature. In my internal investigations training programs, we discuss in-depth the strategies for documentation.
Overall, conducting interviews virtually can be a good strategy for organizations in moving swiftly to talk with individuals involved in investigations. However, the downside is simply the lack of personal interaction and rapport-building that is more effective when meeting with people personally. The upside is when interviewing subjects virtually, as the safety factor definitely goes up. Often, subjects can become incredibly aggressive and even combative because they simply don’t like the line of questioning that is getting closer to the truth. In those situations, investigators can encounter personal safety issues. So, working virtually does provide that added measure of safety. However, in my final words here… always, always make sure you have a sterile environment behind you when interviewing virtually! Don’t have photos of your children behind you on a bookshelf, or a plaque that says, “My daughter is an honor student at Eagle Ridge Elementary School” or other personal information. This goes for your social media profiles too. The reason is that if you interviewed an angry subject who has now been suspended (and termination of employment is coming) the last thing you would want him/her to know are your personal vulnerabilities, such as your kids and family. Don’t give bad actors information on how to get to you… So, be smart and keep a low profile! And, if you’d like to know more about conducting HR investigations, please check out our internal investigations training programs. We provide instructor-led classroom training as well as virtual training programs.
Until next time…
Natalie Ivey, MBA, SPHR, SHRM-SCP
President & CEO
Results Performance Consulting & Investigations