The changing nature of how we work is resonating across all corporate functions, including those tasked with internal investigations. Conducting this assignment remotely, while not physically at the location of the inquiry or face-to-face, has always been part of the equation. However, it has become more relevant and necessary, and is now oftentimes the only viable option.
Mike Sulek, Compliance Lead Americas, Rio Tinto Group
While in most respects conducting investigations remains “business as usual,” the following offers an initial view of the new challenges and opportunities, including the increased value of careful planning, remote data collection, and leveraging site-based resources.
For the most part, we remain partially or entirely restricted from travel. Furthermore, most of us continue working from home rather than from our office locations. The nature and volume of allegations received by whistleblower hotlines may have changed. The principal goal and expectations for the investigative function, however, have not shifted. Whistleblowers, employees, shareholders, regulators, and society continue to count on corporations to promptly and diligently respond to concerns and allegations of misconduct. Corporate policies, standards, and procedures related to this task need to continue driving the investigative process. Any challenges such as delays, whether related to COVID-19 or not, need to be duly noted on the investigative file with full transparency, adequate rationale, and appropriate approvals.
The current limitations have had unique and likely long-lasting impact on the investigator role, some of which may appear as challenges in relation to collecting documentary evidence and conducting interviews.
Physical records may only be available at a site location which is inaccessible, and the most apparent solution is to ascertain whether the same can be obtained from another location or via a digital copy. In terms of electronic records, IT systems and adequate support may not be in place to facilitate efficient and timely collection and analysis from home locations, especially given data security concerns. Policies and standards may also not be entirely up-to-date to account for all legal requirements.
Remote interviews may also present unique challenges. Audio-only (telephone) interviews should be avoided if at all possible, instead employing video conference tools, if the gold standard of face-to-face interview is not feasible. Establishing rapport and trust, critical elements of any interview, is bound to be more challenging when both parties are facing each other across screens. This can be adjusted for by planning in additional time to establish these elements during the introduction stage. To create a comfortable and effective experience, the investigator needs to be particularly conscious of how they project their body language, tone of voice, pace of speech, and other cues, all across a monitor. Camera positioning and audio quality play an important factor, and need to be part of the planning process. Important cues from both sides of the virtual “table” can continue to be assessed despite the distance limitation. In addition, the investigator will need to consider alternate tools for presenting or sharing material for comment, or obtaining signatures.
The above, albeit not exhaustive, can be managed to a large extent with proper planning. This often-undervalued step in the process takes on even greater importance when dealing with remote investigations, as the investigation lead needs to diligently consider and account for both the known and unexpected challenges while at the same time leverage new opportunities of remote work. This step should also include ample consideration for adequate management of expectations of all stakeholders in light of what’s “new” in the process.
The challenges of collecting documentary evidence and conducting interviews may also present new opportunities, such as leveraging remote data collection and site-based resources.
Remote work has increased everyone’s flexibility, as we are no longer bound to the physical office environment. As a result, the individuals involved in an investigation— whether whistleblowers, witnesses, or reporters—are more accessible due to these elastic work arrangements. In addition to convenience, working remotely can create added control, comfort, and confidentiality for those considering raising a concern or collaborating with an investigation. Of course, this advantage needs to be balanced with assurance that these sensitive interactions, albeit within a private setting, can continue to take place discreetly and without distractions.
It is undoubtedly advantageous to have effective remote data collection capability from a long-term cost, efficiency, and increased confidentiality perspective. This includes the collection of documentary evidence from corporate information systems such as cloud collaboration tools, shared drives and emails, and also corporate devices such as laptops and cellphones. The challenges of COVID-19 present an opportunity, if not an imperative, to develop this vital capability. Careful consideration, however, needs to be given to ensure that the program can operate within both legal and policy confines, and that its deployment takes into account critical elements such as fairness, proportionality, inter-border data transfer, data privacy, and data security. Often, startup and upkeep costs can be offset by increased confidentiality, reduced collection and processing delays, and reduced need for travel.
Notwithstanding the requirement for the essential principle of confidentiality, the investigation manager can benefit from leveraging site-based resources to assist them with investigations. This can include reconnaissance, local data collection, and face-to-face interviews. Once these resources are nominated and in place, they can be activated as and when required to become an effective extension of the investigation team. Tailored governance needs to support this arrangement, along with sufficient training and oversight from the investigation manager, who maintains ultimate accountability. In addition to assisting in a reactive fashion, these resources can create a powerful network of support to the investigation function, risk identification and mitigation, and a trusted ally and link to the business. Overall, they can increase the effectiveness and cost efficiency of not only investigations, but also of sister functions such as ethics and compliance teams.
Regardless of what is to come, it is certain that internal corporate investigations will continue to require the careful guidance and the steady hand of experienced investigation professionals. Remote investigations increase the complexity of the task and, as a result, the investigation teams will need to plan for these new challenges and leverage new opportunities to ensure continued effectiveness of the endeavor. As we navigate forward, let us embrace flexibility and harness the opportunities to learn, adapt and further evolve corporate investigation programs, while staying true to their core goals and key principles.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or opinion of the Rio Tinto Group.
About the Expert:
Mike Sulek currently serves at the Compliance Lead Americas for the Rio Tinto Group (“RTG”), a leading global mining group that focuses on finding, mining and processing mineral resources. Prior to this position, Mike was responsible for leading the whistle-blower program and all related investigation activities across the Americas region for RTG. He has over 13 years of experience in public and private-sector investigation and compliance roles and holds a Master of Arts degree in Criminology, from the University of Toronto.