Workplace Strategies Watercooler 2026: Effective Investigations in the Age of AI and Remote Work

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Bethany Wagner: Hi everyone. We are coming to you live from Austin, Texas. We are at 2026 Workplace Strategies. I am Bethany Wagner. I’m a shareholder in the Pittsburgh office, and with me today are two of my esteemed colleagues.

Cynthia Bremer: Hi, I’m Cynthia Bremer, a shareholder in our Minneapolis office.

Scott Preston: And hi, I’m Scott Preston from the Indianapolis office.

Bethany Wagner: And the three of us along with our colleague, Eva Turner, just presented a three-hour session on effective workplace investigations in the age of AI and remote work. And of course, we are not going to repeat that three-hour session here in this podcast, but we are going to discuss some of the highlights and some of the hot topics from that presentation this afternoon. So, let’s do a fun Q&A. My first question is for Cynthia. So, let’s just go real broad here, Cynthia. Why are investigations so important these days?

Cynthia Bremer: I would say first and foremost, people expect them to be done. So, when you have that expectation of employees because it’s outlined in your handbook, written policies, new training, orientation when they’re brought on board to an organization, they really have an expectation that if they raise an issue, there will be an investigation. So, I’d say first and foremost, that’s the expectation. So, employee relations, human resources, and in-house legal really need to respond to that.

I’d say the second reason is we want to nip problems in the bud. As your outside defense counsel, for sure, we’d like to stop problems from getting any bigger. So, I think investigations are one of the best ways really to stop problems from brewing and getting worse and really impacting employee morale and ultimately potentially leading to conduct that’s even worse and could result in liability. And then, of course, there’s the regular things that you probably think of in this space, which really is avoiding liability and litigation.

Let’s just assume worst case scenario, the person is no longer with the organization and brings a claim against the organization. I think well done investigations are a very good way to prove that you’ve done the right thing, and in some circumstances can give you a defense to liability. So, all of those reasons and I’d say probably many, many more.

Bethany Wagner: Cynthia, you conduct a lot of investigations. You sit on the firm’s workplace investigations and organizational assessment of practice groups steering committee with me. So, I know that you do a lot of investigations, and I know that you’ve done a lot of investigations over the years. Have you noticed whether there have been any emerging trends with respect to various complaints being filed or maybe what has changed with workplace investigations and the types of complaints that we are seeing? What are your thoughts on that?

Cynthia Bremer: That’s a great question. And I would say having done this for a number of years like you, Bethany and Scott, I know you have as well. I really have seen a couple of significant changes in the trends. The first is really just an uptick in the volume overall. And it speaks to employers I think doing the right thing and engaging in policy roll-outs and training, informing employees of their rights and really social media and all the other things available online for people to access in terms of resources have informed people that they do have rights and I think they know that. So I would say just a significant increase in volume, certainly for our practice group over the last six years since we created it. And I think that trend is true overall.

I’d say they’re also more complex in many ways. There is AI, there’s remote work components. Both of those we spoke to in more detail during our three-hour session today, but I’d say those two issues also have added a certain level of complexity to investigations. While remote work may have seemed very strange back in 2020 and lots of organizations found it difficult to conduct business via Teams and Zoom and other online platforms, frankly, that’s become much more common now in investigation. So, I’d say that is a second change.

And really, the third is the types of complaints that we’re seeing. I’ve investigated a lot of complaints recently that were really more about culture of the organization. What were the expectations of people? Bullying, the concept of things just being unfair versus maybe what was complained about in years past, a very specific allegation that was tied to one person or one alleged conduct that occurs.

Now, it’s more of a cultural kind of question or concern that’s raised and an organization is left with perhaps a larger task at hand to really dig into what is behind that complaint and is it a bigger complaint that’s more systemic in nature and really needs a good, detailed investigation.

Bethany Wagner: Scott, I’m going to throw it over to you now. Also, like me, you litigate cases in addition to investigate complaints for our clients. And I actually think that being a litigator is very helpful from an investigation standpoint, because when I conduct investigations, oftentimes I think, “How is this going to look from a litigation perspective? Can I defend the decisions that I’m making? What will I say if I’m asked why I didn’t interview a certain person or why I didn’t ask for a particular document or why I didn’t do something in person versus remote?” Every decision I sort of look at through the lens of how’s this going to look in litigation.

And so, I want to ask you a broad question as well. From my standpoint, I’ve had more cases over the years that have one of the allegations or part of the complaint stems from improper investigation or, in other words, the investigation was flawed in some way. Number one, are you seeing that? Number two, what are some of the general themes or trends from these investigations that are being included in complaints now?

Scott Preston: I have seen that, Bethany. And I think the number one issue that I see is when non-lawyers conduct the investigation and perhaps, they pick the wrong investigator or someone that may be biased in the investigation or potential bias. And then the complainant feels like the dice were loaded or the books were cooked and they didn’t get a fair investigation. Then you see in subsequent litigation allegations that to prove discrimination or as evidence of discrimination of a sham investigation that the person complained but nothing was taken seriously. Or perhaps the person that was responsible for the discipline of the employee was also conducting the investigation.

So, picking the wrong investigator leads to more problems, I think, than when you have outside counsel or in-house counsel leading the investigation to help alleviate those stressors. I also think that with AI, one of the issues that you see more and more and the issue that’s keeping me up at night is fabricated evidence by a complainant to support their claims. And you’re wondering, “Is that legitimate evidence, or is that AI created evidence?”

And then in litigation, you have federal judges now around the country issuing standing orders that you have to disclose any use of AI in litigation. So, I think it all sort of ties up and wraps up together that creates potential liability for clients and exposure. If you have a flawed investigation that can really go and they can sort of beat that drum for quite some time.

Cynthia Bremer: I think those are great points. I would add one other thing, Bethany, and that is having litigated a number of these myself and seen especially experienced HR investigators be deposed in these instances and look back at their files and have a lot of regret. You can see it on their face. You’ve produced their file. They’ve found it after searching high and low for the most complete file record that they have and they produce it and now they’re having to answer questions about it.

I would say what I’m seeing is really just that lesson that we all learn time and again, which is have a good process, follow the process, document why the process happened the way that it did and make sure that your file is in good shape before you put it on the shelf or in a digital space to keep, make sure that it’s in good shape, because it’s always that investigation it seems where you’re not thrilled with the process that you used, the number of people you spoke to, how long it took you, or really the conclusions that you reached or didn’t reach, that seems to be what ends up being litigated.

It is uncanny how that happens, but it certainly does happen. And you can see from the human resources person’s perspective, how challenging that is to now try to recreate in their mind under oath, maybe for the first time in two years since they took those notes, what those notes really said.

Scott Preston: Yeah, because it’s not instantaneous.

Cynthia Bremer: It’s not instantaneous. So, to have that and try to have that kind of recall, especially when the documentation isn’t strong and isn’t complete is always challenging. So, I would say just kind of always a great best practice is to audit that. What is going to be my process? What am I going to use as an organization? And just look back even.

I certainly helped lots of organizations do this in the last couple of years, look back and randomly select some files for audit and just look at them independently and say, “Was the process followed? Was it a good process? Do we know what process was followed based on the documents that were kept?” And having kind of now the benefit of the last two years of all this learning and all these investigations we’ve conducted. Do we still feel like the conclusion reached here is the right one?

I think there are really good opportunities there to audit practices and learn from them, because again, I feel like for whatever reason, it’s that investigation that wasn’t maybe documented as well as they would have liked that ends up being part of the litigation.

Bethany Wagner: You both highlighted something that I have been thinking about and we talked about in our larger session today, which is so you get the complaint in and you have to put together your game plan, right? How you’re going to conduct this investigation, what are the steps, what’s the scope. But there are so many critical parts to the complete investigation that like you can’t turn your brain off at one point, right?

But just to go back to the beginning, which both of you touched on is, who is the right investigator for this? Because if you have an allegation that is particularly egregious or it involves allegations against a member of the C-suite or there are several allegations, I think one of the first steps that you need to take is consider who should do the investigation. Should we have someone internal do it? Can someone from an internal perspective conduct the investigation, right? I mean, if you don’t want someone’s first time conducting an investigation to be against the president of the company, so I think that’s a critical piece that is missed sometimes.
I’m going to put you both on the spot. What are some of the other critical pieces or critical parts of the investigation that you think maybe are overlooked sometimes? Scott, I’ll let you go first. Not to put you on the spot.

Scott Preston: I mean, I think there are a lot of issues that are best practices that maybe aren’t followed. For one, I think you talked about it is not picking the right investigator. You start with that. The other one is maybe reaching a conclusion in your mind and then driving that conclusion subconsciously to get to where you want to go as opposed to trying to keep an open mind and an unbiased investigation and just follow the facts, right? Be Joe Friday from Dragnet, right? Just the facts, ma’am. And that to me is sort of one of the traps of the unwary, I would say, in conducting investigations.

Cynthia Bremer: I would say for me, it’s a failure to close out the investigation with the person who’s raised the complaint and really who the complaint is about. And at least having those two people know that the investigation process happened, it was completed, a conclusion was reached. Regardless of what the company does next and how much information it chooses to share for its own reasons, I think it’s really best practice if possible to have that kind of closeout.
I would say the second piece is not following up. So, you’ve conducted a very detailed investigation probably. You’ve done all of the excellent work, even did the closeout, but it’s really important, I think, to follow up and to provide an opportunity for people to raise issues in the future and just know that they don’t always come forward, right? We all know that. So, I think it’s important best practice to at least consider follow up a couple of times preferably over one time, but at least one time and then document that just like you would the rest of the process. That you made that reach out, that you asked the person how things were going, that they confirmed everything was okay and that you can now close the investigation finally. And use that if and when it’s necessary if the person has a later complaint that they feel they’ve been retaliated against. You have evidence that at least at that time they did not share that with you. I think that’s really powerful and important.

Scott Preston: I also think the chronic complainer, right? Where you have someone that’s a chronic complainer constantly raising complaints and there’s fatigue in having to investigate another complaint by that employee. It might not be the first three or four that are complete nonsense, but it might be the fifth one that’s packed with issues. That when it gets brushed over because it’s the same chronic complainer, that’s when problems can really ensue. So, you have to take them all seriously.

Bethany Wagner: Yeah. We talked about that in our session as well, right? So, you’ve got to take all concerns seriously. I think what might change is the level of response or the breadth of the investigation, but it’s that critical first step in at least addressing the concerns, which was one of our top investigation mistakes that we discussed, right? Ignoring complaints and that can definitely be a reason to do that, complaint fatigue.

Thank you everyone for listening to us today. And if you are interested in the topic, we would love to have you at one of our longer sessions, our three-hour sessions on conducting effective workplace investigations. Three hours, we could talk for a week on it though, for sure.

Scott Preston: Time flies.

Bethany Wagner: Time flies when you’re having fun. All right. Thank you.

Scott Preston: Thank you, Bethany.

Cynthia Bremer: Thanks.

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