As we move forward in the COVID-19 pandemic, it is important employers remember they must still ensure their workplaces are free of discrimination, harassment, and other prohibited behavior. One question I have been asked by employers is whether or not they still need to conduct workplace investigations. And if yes, how.
Employers Often Have a Duty to Investigate
Employers should remember it is critical to investigate complaints or actions. Many times, once a complaint is made by an employee, a duty arises requiring the employers to launch an investigation and then take prompt remedial action. Failure to do so can be quite problematic.
First, it could result in the loss of certain affirmative defenses by the employer. For example, a properly and timely-completed investigation can be used as an affirmative defense to a hostile work environment charge. Second, failure to investigate certain claims may be enough to allow a jury to impose liability on the employer. Third, delaying an investigation may lead to a loss of evidence. Fourth, the jury wants to see that the employer took the complaint seriously.
I am a huge advocate for face-to-face interviews because they are often crucial for determining credibility. It remains my preferred method of conducting interviews. However, when social distancing, employers may wish or need to avoid in-person interviews. There are several platforms that will allow you to effectively conduct a remote interview including Zoom or Skype.
To be effective, set specific boundaries and rules for the investigation. Set aside the amount of time you would take for an in-person interview. Ensure witnesses have software or app downloaded that will allow them to be present by video rather than just appearing audibly.
Many of the software programs allow for the recording of meetings. This is helpful to have a record of the interview and lessen the need to take contemporaneous notes. Of course, make sure you are complying with any privacy laws, and obtain the interviewees consent before doing so.
Additionally, remember tele-workers are frequently surrounded by their family. Explain the need for privacy and require an interviewee to go into a quiet room. Set the expectation of privacy early on, and place the responsibility on the employee.
Finally, verify whatever video conferencing platform you use is properly encrypted. My partner, Maria Crimi Speth, recently authored an article highlighting Zoom’s security, legal and privacy policies.
We are in unprecedented times. That, however, does not exempt employers from their legal responsibilities. Video interviews are a great way to ensure employers can properly investigate employee complaints.
About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.
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