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Janene Marasciullo Quoted in “Rise to the Challenge of Remote Investigations”


Janene Marasciullo, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in SHRM, in “Rise to the Challenge of Remote Investigations,” by Allen Smith.

Following is an excerpt:

Investigating workplace issues is rarely easy and doing so remotely can be even harder. Some employers insist on in-person investigatory interviews, even as telecommuting has increased during the coronavirus pandemic. But many now rely on remote investigations, which bring unique challenges: stilted conversations, difficulty making credibility assessments from afar and at-home distractions.

“It is harder to establish rapport with anyone when you are not meeting face to face,” said Janene Marasciullo, an attorney with Epstein Becker Green in New York City. “Likewise, it may be difficult to ensure confidentiality of any communications because you and the person you are interviewing are not together, and the person you are interviewing may not have sufficient privacy to speak candidly.”

It’s also harder to assess credibility without being able to see someone’s body language, she added. …

Assess Credibility

If interviewing in person isn’t feasible, videoconferencing, rather than conducting the investigation by phone, can help with credibility assessments because it allows the investigator to see the interviewee’s facial expressions, Marasciullo noted. That will help the investigator know if an interviewee is uncomfortable with a particular subject. …

“Videoconferencing also helps the investigator to distinguish between situations where the witness has finished his or her answer from situations where the witness has paused to collect his or her thoughts or [to] regain his or her composure,” Marasciullo said. “It is particularly important to make sure that the witness has finished his or her answer before asking another question.” This can be hard during telephone conversations but interrupting witnesses tends to chill communications, she cautioned. …

Minimize Distractions …

Marasciullo recommended that, when scheduling a time to talk, employers ask interviewees when they can speak confidentially and without distractions. …

“It is harder to take a break when an interview is being conducted by telephone or videoconference as opposed to an in-person interview,” according to Marasciullo.

The investigator should indicate upfront that he or she will take notes to ensure an accurate record of the conversation. “If the investigator needs to pause to finish notes, the investigator should tell the interviewee so he or she does not become uncomfortable during a prolonged silence,” she said. …

When sharing sensitive documents, use a videoconference service that allows the investigator to share his or her screen with the interviewee to avoid delivering copies of the confidential documents by e-mail, Marasciullo recommended.

Uphold the Attorney-Client Privilege

Be careful not to inadvertently waive the attorney-client privilege, Marasciullo cautioned.

If the investigator will be working with an attorney, for example, the two should not use any chat function associated with the videoconference tool, she said, to avoid any possibility that the interviewee might see the communications. Such communications might affect the interviewee’s answers, offend the interviewee or result in a waiver of the attorney-client privilege.

Investigators also should avoid using the recording function when using videoconference services because that, too, may lead to a waiver of the attorney-client privilege, she added. In many states, it is illegal to record conversations without the consent of all participants. Moreover, interviewees may be less candid if they know they are being recorded.