Conducting investigations during the COVID-19 lockdown has presented some challenges. It also has taught in-house counsel some lessons about how to handle a remote investigation, which may be transferrable to the after-COVID world. Here are some key points and tips, primarily from a US perspective.
1. Standard Introductory and Closing Remarks. Expand your set of standard introductory and closing remarks for interviews to include contingencies for remote interviews. These include:
- Expectations regarding recording. (See next section for detailed explanation)
- What should a witness do if there are technical or connection issues.
- Confirming the absence of anyone else in the room where the witness is located.
- Confirming that the witness has received any documents sent in advance, and expectations about confidentiality and destruction or return of the documents after the interview.
2. Document Handling. Consider how you handle documents based upon the sensitivity of the information contained in the documents. Options include:
- Screen sharing: to maintain control over the document and avoid unauthorized duplication.
- Shared drive or third-party storage system: remember to restrict the witness’s ability to download – set to “view only”.
- Emailing: either in advance or in real time, but email communication provides greater opportunity for forwarding and copying.
REMEMBER: No matter how you handle the documents, there is a significant possibility that they will be copied via a screen capture or a photo.
3. Logistics and Expectation Setting
- Physical space and equipment: make sure your witness has a computer and a quiet space – if the witness will be using a mobile phone, consider how that may affect your ability to share documents or otherwise control the interview.
- Access to a computer: If you prefer the witness to be on a computer (laptop or desktop) rather than on a mobile phone, you may have to make arrangements to provide the physical equipment at your office or at a third-party location. Plan for that in advance.
- Simultaneous vs. ordered: Consider having multiple investigators to do simultaneous interviews if you want or need to decrease the possibility of collusion among witnesses.
- Consider whether you give the interviewee advance notice of the interview or not. If you want to keep it to last minute notice, consider coordinating with the interviewee’s supervisor/manager.
4. Recording Concerns
- Confirm applicable policies and procedures in advance. If you don’t have a specific policy concerning the recording of business meetings, consider implementing one.
- Explicitly confirm expectations for absence of recording by either party and consequences for violation: ask the question: “are you recording this call?” and get a “no” answer.
REMEMBER: Even covert or unauthorized recordings may be used as evidence in employment claims, so approach as if it may be shared later. While you may be able to take disciplinary action against an employee for violating your policies against recording the conversation, many courts and arbitrators will allow the unauthorized recording as evidence in a hearing, or as rebuttal to contradict later testimony.
5. Participation of Union (Or Other) Representation
- If a union representative is required under the 1975 US Supreme Court decision in NLRB v. Weingarten, make sure to give sufficient notice and provide the union representative with the necessary links, etc. Give the same initial instructions about recording and confidentiality to the union representative.
- International distinctions: outside the United States, a representative from a works council, or a co-worker, may be permitted to attend the investigation meeting. Check local laws.
6. Interview Warnings or Disclaimers (e.g., per the rules arising from the famous cases of Upjohn and Johnnie’s Poultry): If you would normally get a sign-off from the witness that they received instructions/disclaimers concerning the interview, consider how to manage a remote acknowledgement:
- Use a commercial e-signature system such as Docu-sign.
- Have the witness sign a document you send in advance or simultaneously with the interview, then ask him/her to take a photo of that document and email or scan it to you.
- Send the witness an email containing the statement and have the witness send a “reply” email acknowledging receipt and agreement/understanding.
- Have the witness orally acknowledge the warning/disclaimer and record the answer in your notes.
It requires additional forethought, but keeping these tips in mind will help in-house counsel maintain a comprehensive approach while handling remote investigations.
Authors: Kevin G. Chapman, Associate General Counsel, Dow Jones & Company, Aida Babalola, Senior Legal Director, Global Employment Law, PepsiCo, Inc., Leilani Harbeck, Senior Counsel, Conagra Brands, Inc., Lesley Marlin, Senior In-house Counsel, Northrop Grumman Corp.
-Presentation Material of “Investigating and Defending Harassment, Discrimination, and Retaliation Claims In the COVID-19 Era” from the ACC Annual Meeting 2020"
-“Seeing Clearly: Practical Advice for Internal Investigations”, by Monica Allen, Steve Bishara, and Matthew Schelp, ACC Docket, April 2018, volume 36, issue 3, pages 24-32.
-“Workplace Investigations: the Role of the Office of the General Counsel”, by Nicole Broley, Jane Sinclair, and Ken Fredeen, ACC Docket, volume 34, issue 4, May 2016, pages 36-41.
-“HR Investigations and the Preservation of the Attorney-Client Privilege in the Context of the Faragher Defense,” ACC Guide by Lori A. Bowman, Charles B. Baldwin and Jonathan S. Longino, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C. (2013)