Internal Investigations and Compliance in a Post-Pandemic Environment: Risks and Opportunities

The COVID-19 pandemic has presented not only novel challenges, but also opportunities for companies hoping to enhance or regain productivity while preventing wrongdoing and maintaining robust compliance functions. As workplaces reopen, historical challenges will persist and new risks will emerge. To be best positioned during this transition phase and beyond, companies should embrace the opportunity to evaluate their existing compliance processes and make the adjustments now that are necessary to adapt to a risk landscape that will likely never again be the same.

Empower Legal, Compliance, and Investigative Resources

Responsible companies will not be receptive to attempts to excuse misconduct due to the pandemic, nor will regulators. After all, there will be no “pandemic defense” to wrongdoing, and hindsight tends to be unforgiving—particularly through the lens of regulators looking at current events months or years from now. And as businesses emerge from state stay-at-home orders, an increased focus on productivity threatens to exacerbate the already heightened risk environment. It is critical that compliance, legal, and internal and external investigative resources be empowered to mitigate these risks effectively. Some immediate mitigation actions to be considered include:

• Conducting mandatory training on the enhanced risk environment and compliance best practices.
• Assessing existing policies and procedures, including those specific to internal investigations, and revamping them as needed to address the new landscape.
• Documenting in real time any deviations from existing policies and procedures.
• Taking stock of all ongoing investigations and evaluating whether compliance issues have occurred over the course of the prior months, while attention may have been diverted to other pressing matters.
• Encouraging internal reporting and reexamining compliance monitoring plans to ensure that they are responsive to current and prospective risks.
• Continuing to closely monitor updates and guidance from regulatory authorities.

Embrace Technological Innovation and Adapt to Remote Work

Just as remote depositions are increasingly commonplace in litigation, so too are remote interviews becoming the norm in internal investigations. This is unlikely to change, as many businesses have realized the cost savings and flexibility offered by remote work. A thoughtful integration of technology and compliance is thus vital to effectively managing internal investigations and compliance risks moving forward, particularly as the barriers between home and work continue to erode. Some practical considerations in this regard include:

• Updating data retention policies to account for significant numbers of employees working remotely.
• Issuing (or reissuing) guidance regarding the use of personal electronic devices for work.
• Establishing protocols for terminating remote access and recovering company information and devices.
• Educating employees on cybersecurity risks and best practices.
• Investing in technology, including videoconferencing software, that securely facilitates remote communication and document collection and review.
• Taking into account the remote environment when conducting interviews, which should include confirming that an interviewee is not recording the conversation and is not joined by any unexpected third parties.

This blog addresses just a sampling of the types of risks and opportunities for internal investigations and compliance in the post-pandemic environment.