Handling Workplace Investigations in the Era of the Hybrid Work Model

The return to the office – post-pandemic – has not been a one-size-fits all scenario.  Across the nation, organizations large and small are offering employees flex schedules and hybrid working models, allowing them to work two or three days in the office and the remaining days remotely.  Other companies have provided for a substantial number of employees to work remotely full time.  These new models are likely to remain the norm for the foreseeable future.

When faced with an investigation involving some employee witnesses who work on-site and others remotely, or a combination of both, needless to say, challenges are likely to arise.  How do you ensure your workplace is prompt, thorough, and impartial in the new hybrid world?  This blog identifies issues that may arise for external workplace investigators within the hybrid model and offers key strategies to navigate the investigation process.

  • Evaluate the Company’s Work Model at the Start.  It’s important to pause at the start of your investigation and assess the organization’s work model.  The company may have written policies pertaining to a hybrid, flex, or remote work model and if so, it is helpful to review the policies to get a sense of not only schedules, but also expectations and culture. A few types of hybrid work models you may come across include, but are not limited to:
    • Office-Occasional: Employees work in the office one or two days a week, allowing them to attend important team meetings face-to-face;
    • Office-First: The organization prefers that most people work from the office, although they still offer a remote policy;
    • Flexible Schedules (Manager-led): Managers determine who works from home and who works in the office; and
    • Flexible Schedules (Employee-led): Employees determine their days to come into work, or choose from preset options.

Understanding the specific hybrid or remote model implemented by the organization is a good start to preparing your investigation plan and establishing next steps.

  • Consider the Appropriate Interview Format.  In consultation with the organization, consider the best format for the investigation. Although in-person interviews are widely recognized as the optimal approach, many employers now rely on or prefer remote investigations, which serve as a practical option for an organization with a hybrid model. Remote investigations are convenient, efficient, and allow for investigators to conduct prompt interviews of witnesses regardless of their location.  At the same time, remote investigations can present privacy, confidentiality and data security challenges that should be weighed against the practicality of the remote process.  If in-person interviews are preferred, analyze the specific facts and circumstances of the complaint when addressing format – for example, if conducting in-person interviews, it may be prudent to schedule interviews such that you avoid relevant parties or witnesses running into one another unnecessarily.  If using a virtual format, consider how addressing sensitive topics via videoconference could be compromised and reflect on how best to build rapport.  If warranted, take time to discuss a hybrid investigation option with the organization – in which you conduct critical interviews in-person and witness interviews remotely.  If conducting both virtual and in-person interviews, account for as many differences between the two formats to avoid the perception of bias – for example, if water is provided to in-person interviewees, ensure virtual interviewees equally have the opportunity to get a glass of water; inform interviewees in both formats they may leave the interview to take a break at any time. Taking time up front to consider logistical, scheduling, and other process issues in order to determine an appropriate format will help down the road.
  • Strategize with Purpose and Intent.  As with all investigations, it is necessary to prepare a well-planned investigation strategy.  And even more so when dealing with employee witnesses with varying schedules and in different locations.  With in-person interviews, consider any office reconfigurations or adjustments made as a result of the pandemic that may impact privacy and confidentiality, for instance Plexiglas dividers or the proximity of employees’ workspaces to one another. Also consider scheduling logistics and whether relevant employee witnesses will be in the office on particular days.  Is a critical witness only available in-person on Wednesdays and every other Friday? Are any relevant witnesses working remotely in a different time zone? Be aware of the organization’s COVID policies that will impact any in-person interviews.  It can be helpful to prepare a separate chart to help you keep track of each employee witness, their schedule, the status of their interview, and whether the interview will be conducted in-person or virtually.  An example may look something like this:

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  • Be Mindful of Evidence Collection.  As workplace investigators, we know how important it is to collect relevant documentary and physical evidence.  Beyond emails and text messages, hybrid workplaces often incorporate communication platforms such as Slack and Microsoft Teams.  Ensure that you verify whether any potential evidence is memorialized in any of these additional messaging mediums.
  • Remember Procedural Fairness Still Applies.  Regardless of the investigative medium or format, it is important to conduct an unbiased and impartial investigation using best practices.  This means maintaining procedural fairness and integrity throughout the process by treating all parties fairly and providing them equal opportunity to disclose information and responses to you. Additionally, it is important to document any methodology determinations, specifically the decision to conduct all or some interviews virtually and the reasons in support of the decision, in your ultimate report. This will memorialize the consideration given, confirm consistency of the format, or explain any discrepancies.

By moving through an investigation involving hybrid workers methodically and with intention, you will have the tools you need to act promptly and efficiently, gather the relevant facts, and make well-informed decisions.