The COVID-19 pandemic has caused innumerable disruptions in our everyday lives, and the workplace is no exception. With these disruptions come new and additional challenges that require us to adjust. Further, this new environment can be rife with new and additional risks. You can be certain that regulators are adjusting as well, and they will maintain their high expectations. As such, investigations of misconduct in the workplace must continue despite these new challenges. To keep up with these demands, compliance teams are shifting to virtual investigations. While this can be a tricky adjustment initially, it’s possible to conduct effective interviews regardless.
Here are seven things to keep in mind as you conduct your virtual investigations.
1. Stick to the Plan
Despite the challenges, virtual investigations will functionally remain the same. How you execute certain steps will surely change, however, the pandemic does not give you an excuse to skip any steps in the process. If you have a detailed investigation procedure, make sure you stick to it. It can be easy to skip or overlook a step while working from home. If anything, the current situation means the investigation protocols are even more important, and you should be extra diligent in documenting all the steps and findings in your investigation.
2. Be Diligent in Your Timeline
When investigations occur on location, outside of the main office, investigators push hard to ensure that all the interviews and document reviews are completed during their visits. Thus, these visits introduce definitive deadlines in completing these tasks. As we shift to virtual investigations, these constraints disappear. Therefore, it can become far too easy to push off an interview or two for a variety of reasons. While you must remain flexible, considering the distractions and difficulties when working from home, you should still continue to be diligent to complete your investigation in a timely manner.
3. Go Over the Ground Rules
Virtual investigations can be especially strange for the interviewee. To make it easier, go over the ground rules ahead of time to set expectations. Inform the interviewee of how the investigation is going to proceed. Make sure they are familiar with whatever platform you will be using, and that they have installed the necessary software and tested it beforehand. Make sure they understand the need for privilege and confidentiality. Remind them that the interview should not be recorded., and that this includes taking screenshots or downloading anything afterward. Have the interviewee certify to these rules with a signature to ensure they understand and accept them. This can even be combined with the Upjohn warning to ensure all bases are covered.
4. Control the Setting
This point is crucial and can often be overlooked. In normal times, it’s much easier to maintain control over the setting. You can just schedule a private meeting room and have the interviewee come to you. However, in a virtual world, the environment and setting are left up to the interviewee. Make sure the interviewee knows they should find a quiet and secure spot for the meeting. This can be difficult to do with pets and children at home, so inform the interviewee of this constraint ahead of time. When the interview begins, one of your first questions should be asking whether they’re alone and able to speak freely. If you have any concerns or suspicions of intimidation or retaliation, considering asking them to pick up the webcam and scan the room for you. While a scan like that is not always necessary, you want to be sure that you’re not only maintaining privilege but also ensuring that you’re obtaining the unfiltered truth from the subject.
5. Leverage Technology
While virtual investigations will never be the same as an in-person investigation, various technology solutions will help them get pretty close. A crucial aspect of an in-person interview is being able to see and read the body language of the interviewee. While that can’t be replicated perfectly, you can still utilize an interview platform that incorporates a webcam. Make sure the interviewee has their webcam on and make sure you have yours on as well. Further, make sure the meeting “room” is secure and restricted so that there are no unauthorized attendees. Make sure you know how to work the platform or have someone involved who does.
6. Ask for Help
Don’t be afraid to ask for help! You certainly have a variety of experts within your organization who can make your virtual investigations operate much smoother. First and foremost, make sure you discuss with IT how best to keep the technical aspects working properly. Nothing can torpedo a virtual investigation faster than a poor connection or an inability to operate the software. Go through a demonstration if necessary. Alternatively, enlist the help of someone who knows how to work the software and have them operate it for you during the interview. It can be difficult to handle questioning while also worrying about other items, so if you have a note-taker or witness attend the interview, have them also host the meeting and handle the technical aspects, such as sharing documents through a screen share.
7. Be Proactive
Finally, don’t forget to be proactive. Since remote investigations can be difficult, it’s even more important to prevent the misconduct ahead of time before an investigation even becomes necessary. Many incidents can occur because employees forget the rules or simply let their guard down. Don’t let that happen! Be sure to maintain a schedule of communications throughout the pandemic. Send email reminders based on recent trends—for example, phishing attacks are on the rise as of late. Allocate time for compliance reminders. Consistent and targeted messaging can make all the difference.
Successful Virtual Investigations
As you become more comfortable with the practice, virtual investigations will begin to feel more natural. As you hone your virtual skills, you’ll be able to add this arrow to your quiver in the future. This will allow you to conduct certain investigations in a timelier manner and in a more effective way. By keeping mindful of these key points, you’ll be able to conduct virtual investigations seamlessly and effectively.
Michael Volkov specializes in ethics and compliance, white collar defense, government investigations and internal investigations. Michael devotes a significant portion of his practice to anti-corruption compliance and defense. He regularly assists clients on FCPA, UK Bribery Act, AML, OFAC, Export-Import, Securities Fraud, and other issues. Prior to launching his own law firm, Mr. Volkov was a partner at LeClairRyan (2012-2013); Mayer Brown (2010-2012), Dickinson Wright (2008-2010); Deputy Assistant Attorney General in the Department of Justice (2008); Chief Counsel, Subcommittee on Crime, Terrorism and Homeland Security, House Judiciary Committee (2005-2008); and Counsel, Senate Judiciary Committee (2003-2005); Assistant US Attorney, United States Attorney's Office for the District of Columbia (1989-2005); and a Trial Attorney, Antitrust Division, United States Department of Justice (1985-1989).