Workplace investigations are evolving rapidly. Continued use of hybrid and remote work environments, expanding digital communication, and evolving expectations are fundamentally expanding the nature of concerns reported, as well as how organizations should respond. For employers and their advisors, these developments raise a critical question: How do you maintain a thorough, unbiased, and legally defensible investigation process in a digital-first world?
Understanding technological trends allows organizations to adapt their investigation practices proactively before issues arise.
1. Investigations in a Hybrid and Remote Workplace
Traditional in-person interviews and on-site document reviews are no longer the default standard. Investigators frequently conduct interviews over video platforms, review files stored in cloud systems, and coordinate investigations across multiple offices or time zones.
While remote investigations offer unparalleled flexibility, they also bring into play additional considerations—particularly when it comes to interviewing witnesses.
Video Interviews
Traditionally, employers believed that interviews must be done in person to create rapport and assess body language. While this may have made sense when the alternative was a phone call, conducting interviews via video can be as or more effective than in-person for a few reasons. First, many investigators have found that nonverbal actions like fidgeting, throat-clearing, or avoiding eye contact are highly unreliable indicators of lying; more often, they are simply signs of natural stress or nervousness.
Additionally, research shows that neurodiversity can heavily influence eye contact, movement, and emotional expression, so relying on body language can often be misleading. Next, while in some cases, it may take a bit more time to establish witness rapport on camera, remote interviews allow a witness to speak from home or another place in which they feel comfortable. Part of that comfort may be eliminating witness concern about what other employees might think if they see them heading into a closed-door meeting with an investigator. Ensuring that a witness feels comfortable in their physical location goes a long way when attempting to build rapport with them. Additionally, off-site remote interviews with witnesses can minimize gossip about an investigation and are often more affordable for employers.
Key Solutions for the Remote Interviewer:
- Shift Focus from Demeanor to Content: Stop trying to read physical cues to determine witness credibility. Instead, evaluate the substance of the testimony in terms of whether it is objectively credible. For example, consider whether the evidence is corroborated, whether the witness is internally consistent in their interview, and whether they have a potential bias either way.
- Set Remote Ground Rules: Maintain confidentiality by requiring witnesses to confirm at the start of the video call that they are in a private space, using a secure network, and wearing headphones if necessary so conversations cannot be overheard by third parties in shared living or co-working environments.
2. Navigating the Digital Evidence Avalanche
Today’s workplace communications occur not only through email, but via messaging apps, video calls, texts, collaboration platforms, digital voicemails, and more. As a result, investigators should expand their traditional documentary focus to include modern types of digital evidence. For example, they may find it helpful to review chat histories, screenshots, shared files, system access logs, video or transcripts from meetings, AI platform inquiry logs, and related potential evidence.
While these sources may provide valuable, objective insight, they can also create distinct procedural hurdles. For example, digital records can be massive, making it difficult to isolate relevant data. And, even if it is possible to isolate the needed data, it may be overly burdensome for a company to do so and collect it. Additionally, messages taken out of context can easily be misunderstood if investigators do not review the surrounding communications.
Strategic Framework for Digital Planning
To effectively manage digital evidence, internal investigators should:
- Define Scope: Clearly defining the scope of your investigation and the information that is actually needed to assist with reaching a determination goes a long way toward preventing fishing expeditions likely to result in a deluge of data.
- Data Retention & Preservation: Know your organization’s data retention policies. Crucial evidence can be quickly and automatically purged by software systems if immediate legal holds are not placed on relevant accounts.
- Forensic and Analytical Expertise: Determine not only who has the technical capability to collect and review electronic evidence, but also consider whether that person is unbiased and understands the need for confidentiality. If there is no such person, investigators may want to consider using an external provider. Utilizing objective, qualified professionals helps ensure the digital data is extracted in a forensically sound manner that will be viewed as impartial and reliable.
3. Moving Forward
Adapting to digital trends is not just about potentially broadening your search for evidence on a case-by-case basis. It is about refining your standard investigative process to include determinations of what specific relevant digital evidence may exist and how much would be reasonable to request, while still meeting the requirement that investigations be thorough.
Additionally, abandoning overreliance on body language and anchoring investigations in objective evidence better reflects the current trend away from assessment of demeanor. Investigators should focus on non-subjective factors to evaluate witness credibility. Making these types of modifications to your investigative process can help to ensure it is thorough, unbiased, and legally defensible.
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