Xan Raskin, Esq., SPHR, and founder of Artixan Consulting Group, shares tips and techniques for preparing comprehensive and legally defensible investigation reports.
- Essential components for workplace investigation reports
- Options for report organization & structure
- How to avoid common workplace investigation report pitfalls
- What to do with notes and supporting documentation
- Communicating the report to management and/or third parties
Watch the Webinar
Full Transcript for Your Reading
Hello everybody. Welcome to our webinar titled How to Write Stellar Investigation Reports. Today we’re going to give you some great tips on how to summarize your investigations into concise and clear investigation reports and Xan Raskin will be the webinar presenter.
My name is Joe Gerard. I’m the Vice President of Sales and Marketing with I-Sight. As many of you know, we provide case management software for investigations. Normally we work with the HR and ER teams along with compliance or corporate security. Our customers include big companies like All State, BP, Coca Cola, CVS Pharmacy, JP Morgan and more than 300 other companies.
I’d also like to invite all of you to attend one of our 30-minute demonstrations that we’re going to be holding next week. You can register at our blog, www.i-Sight.com and I’ll also be sending out an email after the webinar with details on how to register. That email will also have contact information for Xan if you’ve got any follow-up questions or if you would like to speak with her you could do that as well.
One last thing before we get started is related to questions. As we go you have the ability to pose questions as we’re moving through the presentation using the Questions Box over on your control panel. I would encourage you to submit questions. I’ll either ask them as we go through or if we have time at the end we’ll be able to present some questions for Xan as well at that point.
At this point I would like to introduce our presenter Xan Raskin. Xan currently runs her own consulting firm in New York City called Artixan Consulting. They specialize in helping companies conduct investigations but also to do training for anyone that has investigation teams. She had a long career in the HR legal space before starting her own firm. She was a principal legal counsel at PepsiCo and then a VP at Bristol Meyers Squibb. She has also co-authored a book titled Issues in Employee Leave and we’re really excited to have her with us today to help us all improve our investigation reports.
Thanks a lot for joining us. At this point I’ll hand it over to you.
Xan Raskin: Good afternoon everybody. I want to thank you all for being here and of course to Joe and i-Sight for sponsoring this webinar on writing workplace investigation reports. As you mentioned, I’m Xan. I own a human resources consulting business in New York City. I really have 360 degree view into investigations. I used to litigate, I was an in-house attorney and now I’m an internal expert to companies conducting investigations.
I’ve done a lot of workplace training although this is my first webinar so bear with me. It’s important to think that you come away thinking that this was interesting and worthwhile but let’s be honest. I’m sure most of you would agree that writing the investigation report is just not the sexy part of the process. You may think it’s not as strategic as the important planning stage on how to approach the issues and it’s certainly not as interactive as conducting interviews where you get to hear all of the juicy stories.
How do I make talking about the writing of the report interesting for you especially since you can’t see me and I can’t see you? I am hoping to show you today that the report itself is in many ways the most important part of the process. It’s what you can use to show all the hard work that you’ve done and if it isn’t done well it can really send everything else down the drain. While it may not be the most sexy part, writing the investigation report really is critically important.
Here’s the agenda of what we’re going to cover during this webinar. You’ll not that the slides are pretty text heavy and I do that so you can refer back to them later. Because of this, with a few exceptions for some of the more important concepts, I’m not someone who’s going to read out the slides to you. I’m sure that will put you to sleep. Some of them may go a little bit more quickly by than you may want and I’ll be talking about some other related things while the slide is up but as I mentioned you will have them later as well as the audio broadcast.
I’m going to assume that most of the participants on this webinar have at least some basic understanding of workplace investigations and I’m sure some if not many of you have even more experience than I do. Because this webinar is focused on the writing of the report, I’m not going to go into any discussion about the specific laws that are relevant to workplace investigations or the steps to take before writing the report. I’m sure there are other webinar sessions that i-Sight has in those areas and if not and you want them maybe you’ll be seeing me again in the future.
Today I’m focusing on mainly investigations into claims of discriminations and harassment as that’s my area of expertise but the recommendations today for writing the report really apply equally to investigations and to all sorts of workplace misconduct such as employee staff, misappropriation, conflict of interest, etc.
Part of the reason is that employers need to rely on investigation reports in those kinds of circumstances as well for the same reasons especially if an employee is terminated as a result of an investigation into other kinds of misconduct because those employees can then bring wrongful discrimination claims or related claims against the company even if the underlying investigation has nothing to do with harassment or discrimination.
I want to start first with a little bit about the legal landscape and why the written investigation report is so important. For those of you who aren’t aware of the EEOC which is referenced on this slide, it’s Equal Employment Opportunity Commission. It’s part of the US Department of Labor. It’s the administrative agency that’s charged with administering and enforcing most of the federal employment discrimination statutes in the US. They have regulations and compliance guidelines and they do everything from receiving and processing discrimination charges, making merit decisions, settlements, resolutions [inaudible 00:05:22] or prosecute.
The takeaway from this slide on a legal landscape that you see should be that employee complaints can be very costly, very time consuming and what’s not on this slide is that they also have a significant on reputation as well as employee morale. Just to pull out one of the statistics, employers paid over $300 million back to settle EEOC charges last year in 2011. That doesn’t include any amount they paid to settle actual lawsuits or in verdicts after trial. This was just at the administrative agency space. It’s very expensive here.
The first point is that it can help you avoid claims all together. It’s a document that employers can rely on to take action where appropriate to remedy misconduct and it also provides a written report in the event of future misconduct by the same employee. The obligation of a company if they find misconduct is to make it stop and not continue. They don’t always terminate employees as a result of misconduct as you all know. Having the report is something you can rely on if down the line there is further misconduct.
In addition to avoiding litigation all together, effective workplace reports can help you reduce the cost and duration of charges and litigation or in limiting liability, particularly for punitive damages. In the unfortunate case that an act of discrimination does transpire in a workplace, companies can limit liability by providing sufficient evidence that a good-faith effort was made to enforce an anti-discrimination policy.
What does that mean? You have to adopt a policy, you have to effectively police the policy but you’re also required to have thorough and accurate documentation of all actions that you took pursuant to the policy which includes the writing of the report. This can potentially save employers from significant costs associated with lawsuits.
On the slide in the last bullet, what’s really important when you think overall about the importance of the report is that a judge or jury could look at it and take away that you took the issue seriously, that these concerns were looked into promptly and thoroughly, which is a term of art, that you responded appropriately and had a documented good-faith basis for anything that you did on the basis of the investigation report.
There are two side benefits for workplace investigation reports that I wanted to put out as well. The first is that it can help you if you’re the investigator to remember the steps you took if you’re questioned about it months or years later. I’ve seen HR professionals who conducted investigations be on the stands and whether you’re an expert investigator or not it’s hard to remember everything that you did a few years ago, especially if you’ve done many of them so having the report in front of you as an exhibit to help you recollect the steps you took can be essential.
Lastly it can be used as an effective negotiation tool in settlement discussions. This is what I call my wrap-it-up-in-a-bow anecdote. I’ve had conversations with plaintiff’s attorneys. They pick up the phone and call you. They say “You just fired my client. It’s because of his age, race, gender or what have you and we want $500,000.” If I can say back to them “That has nothing to do with why we fired you client; in fact your client stole from the company,” or “Your client discriminated against his direct report and we did a prompt and thorough investigation. I’m looking at the report now and you’ve got serious problems on your hands.”
Sometimes it makes the plaintiff’s lawyer back off. They realize it’s not worth their effort. It might make them reduce their demands or it might not have any effect at all. It is a double-edge sword so you need to be careful about the use of the report at this stage. That’s because the work product in an investigation, particularly the report-and a detailed one-can provide a virtual roadmap to the adversary of all the wrongdoing you uncovered in an organization. It also might bring the investigation itself under scrutiny.
For example, the plaintiff’s lawyer will look at the report and say “Hey wait a second. You didn’t talk to ________ and ________, and you should have. It can totally derail things. You have to be very careful and strategic about whether or not you use the report at an early stage in settlement discussions. I personally have never turner over the report to the other side but I’ve definitely given them enough information to make them think twice about pursuing a client claim.
I’m now going to turn things back to Joe and hopefully we’ll have our first poll question.
Joe: I’m just going to go onto the first poll question. Our first question today is: ”Does your organization require written reports be prepared at the conclusion of a workplace investigation? Yes, no, it varies, depends on what type or don’t know.”
I think for most of our clients one of the big reasons they implement case management and try to have consistent processes is to be able to produce more consistent and concise investigation reports.
It looks like most of the people have voted. I’m not sure if you can see the results or not but about 68% are saying that yes, they are required to produce a report. About 18% say it depends on the type of investigation. We’ve had almost everybody vote so I’ll close off the poll and we can move on from there.
Xan: Okay. I think that’s great because I have seen a number of cases where my clients have not done investigation reports and it’s really come back to hurt them. I think it’s great news that at least in some form or another most of the participants do complete these kinds of reports.
This next slide is one of the slides that I do read off of because there really are three critical components of a workplace investigation report. The first is that it’s organized and not just organized in terms of format which we’ll talk about later; it’s organized so that anybody internally or externally-the externally part is very important-can read or understand the report without having to reference other materials. It’s all in.
Secondly, it documents the findings of an investigation in an objective and accurate manner and provides decision makers with sufficient information to determine whether they should take further action. Finally a report clearly indicates whether the allegations were substantiated, unsubstantiated or whether there’s something missing that makes that kind of a determination difficult or impossible to reach. We’re going to go through this in a little bit more detail later but these are really the three most critical characteristics.
The next two slides are an overview of what actually goes into the report. We’re getting to the nuts and bolts. I’m going to go relatively quickly through these because we’re going to go into each one of them in more detail. At the end of this presentation there is a sample outline of a report with the headers. I know it’s sort of hard to visualize here but the key is really that each of these needs to be covered thoroughly in your report. There really aren’t any magic words that you have to use.
Just take a look at these first components. Here is the second set of components. I think it’s important to mention that although these are really the key areas you have to hit there is a strategic component here in terms of deciding on how detailed and specific you really want to be in documenting the investigation.
You need to keep in mind that all non-privileged documents memorializing the investigation will likely be produced later in discovery if litigation results and there can be drawbacks to making very detailed and copious reports especially if there are inconsistencies uncovered or a lot of misconduct is uncovered or other inconsistencies in other investigation materials.
The flip side-and I talked about this in terms of the settlement negotiations-is that well-drafted reports regarding the investigation as well as a description of the reasons a company might have taken certain actions can protect the company in future litigations we talk about. There’s really no bright-line test on how much detail to include but I will be giving some tips today along the way. We now have our second poll question.
Joe: One of the things I was going to say is that it seems like with our clients the level of detail is the big area that is case specific where often times a lot of our clients will have a review process where the investigator makes some kind of recommendation. Before that they actually prepare the investigation report and sit down with the investigation manager or legal counsel before they actually prepare that final report that will be consumed by other parties later on and say “What do we want our formal recommendation or outcome to be?” I don’t know if you’ve seen any of that as well.
Xan: I have seen it. A little bit later in the presentation I talk a little bit about verbal communication back to the company whether you’re an internal or an external investigator prior to writing the report and what kinds of things you want to talk about and that’s certainly one of them.
Joe: I’ve launched the next poll where the question this time is: “Who inside of your organization is responsible for drafting these investigation reports for complaints of discrimination, harassment or misconduct?”
I think obviously discrimination or harassment a lot of times comes through HR but certainly other types of misconduct might come through internal audit, legal or different groups like that. It looks like just about everybody has voted already.
It looks like about 80% have responded that Human Resources would be the department responsible for these reports and then it’s split evenly across all the four others. We’ve had just about 80% vote now so I’ve going to close it off but it looks like Human Resources is the group that’s responsible.
Xan: Okay. I’m going to move through the next couple of slides a little fast just to make up some time but we’ll certainly have some time at the end for questions if there are certain areas I give a little bit of shorter attention to.
In the actual written report the first section that I do and that I recommend is an introduction or an overview. For me it can be a paragraph or maybe two paragraphs tops. These are the critical areas to include: How and when the problem or complaint arose and when it came to the company’s attention. Lots of companies have hotlines, it could have been a meeting with HR or it could have been an anonymous complaint. It’s important to characterize what kind of an issue it is, how it arose and when the company found out about it because sometimes the timing of that is relevant to the actual complaint.
I include the identity, position and department of the employee or employees who initiated the complaint and of the individual or individuals who are accused of misconduct. I don’t rely on any written complaint that might give me that information and not put it in the actual report but I put it in the report. I’m going to talk a little bit later about whether you should have attachments to the report or not. Regardless of whether you have attachments or not, I’d make sure all of the critical information is in the document itself [inaudible 00:16:26].
Also include the names and titles of the investigator and a brief summary of the investigative process used. That means it could be as simple as a couple of sentences such as “I reviewed a number of company documents. I then had in-person or telephonic interviews, etc. I reviewed computer records.” Just include an overall review of the process. Sometimes there are multiple investigators involved and they each handled different pieces. This is where you would sort of overview that piece.
Joe: Would you include a couple sentences on the scope? I know a lot of our clients will have a sentence or two where they describe the scope of the investigation and that they tried to keep it limited to X rather than falling down every rabbit hold that popped up.
Xan: Absolutely. I usually put that in the bottom bullet under the High Level Summary of the Complaint Allegations.
Xan: To me that’s sort of synonymous with scope and saying “This is what I looked into.” That may be different than the complaint allegations. I have had investigations where it was determined that the complaint was bringing up issues that had already been fully looked into as well as new allegations so I dropped a footnote and said “It’s been determined that these allegations are not going to be investigated because they have already been fully reviewed. See report ________ to distinguish what’s being looked into and what’s not.”
You’re absolutely right. Scope is really critical as well as the timing of when the investigation began and when it was completed because under the employment discrimination laws, as I mentioned earlier, prompt and thorough is a requirement although there’s a lot of argument over what prompt means. You want to show what the time frame of the investigation was and if there was reasonable delay I often drop a footnote explaining what the delay was as well. Sometimes somebody on a leave of absence and you have to wait for them to come back to interview them.
Joe: Is the interpretation of prompt based on scope I assume? If I’m investigating one person and one of their employees or one of their staff versus a more involved investigation, how is prompt interpreted? If people are doing this in a month, is that good enough or is a year good enough?
Xan: There’s no bright line. It’s been a while since I’ve looked at the case law but I do recall cases where waiting a few months before starting the investigation has been problematic because it gives the impression that you just don’t care about it and you don’t understand the level of urgency. Most of the stuff out there is on the initiation and not how long it took. What they’re really looking for is whether you’re shirking your responsibilities by sort of sitting on it and not actually looking into it unless you have good reason.
Joe: That’s a great takeaway for people that is really focused on as soon as you find out about it you want to initiate that investigation. Even if it takes you time to ramp up the investigation you want to show that you reacted as quick as possible.
Xan: Exactly. Even if that means you were just in the planning stage and you haven’t necessarily talked to people yet but you’ve started the work, that’s what’s really important.
Joe: That’s a good nugget.
Xan: The next part of the report that I include is the documentation of evidence and that starts with the documentation of interviews conducted. I include a laundry list of the individual, the date I interviewed them, whether it was in person, telephonically, etc. and what their title was at the time I interviewed them. Sometimes it doesn’t include current employees. It might be vendors or former employees and I indicate that as well.
The next two bullets are really what I would drop footnotes on. That is if anyone refuses to be interviewed or couldn’t be interviewed and why. For example, they were on a leave of absence or they were terminated. In many cases I have to re-interview certain individuals because I need to double check something or additional evidence came up that they were an eyewitness to or I might have information and I will note that they were re-interviewed and when and sometimes, when it’s helpful, why they were re-interviewed.
Joe: Xan, do you ever include locations? I know I’ve talked to others that sort of feel that the location you choose for interviews matters. If I interview you outside your boss’s door versus taking you to an off-site boardroom somewhere it might affect how that interview data is interpreted later on.
Xan: You’re right. We could spend a lot of time talking about how to set up an interview so that you get the most effective objective information but if you haven’t interviewed everybody off site in a separate location it’s worth throwing that sentence in either in your intro or in your documentation of interviews. I think it can add credibility to the objectivity in the interview.
I then document anything else I looked at as part of the investigation, so all other evidence. I list relevant policies, any pivotal documents related to the complaint and an employment discrimination matter is often overcharge, salary history or performance reviews. I don’t personally take signed statements of witnesses but it is a common practice among investigators so if you have signed statements you should list them in this section. If there are dates of the documents available whether those are emails or policies, I include that on this list part as well.
I mentioned earlier that you should consider including important documents as attachments to the report. I know some investigators really like doing this and some are against it. I think that the document should stand alone on its own. For example, if there’s a particular provision of a policy that’s relevant I will cut and paste it and put it into the actual report and then I also will have a copy of the policy as an attachment.
I know that including all of this may be time consuming but it does ensure that everything is in the same place and it’s easy to access if and when litigation occurs, if an agency charge results or if there’s a reason to revisit the report. I know we’ve wasted a lot of time when I was in house trying to find the policy that was in effect four years ago or seven years ago because they change it all of the time. If you put it with the report you have it easily accessible. Joe, did you have a question?
Joe: A couple people have sent in questions asking about the signed statements you mentioned in passing. They’re asking if there’s a reason why you don’t do the signed statements. Is there something behind that or is it just something you don’t do?
Xan: I think there are pros and cons for signed statements. My personal philosophy on investigations is that everybody’s telling me the truth when I start. It’s just their truth. I have had a few occasions where I could absolutely tell somebody was outright lying to me. I know you’ve had a webinar on how to determine credibility and there are a couple of slides on that later on in deck.
At least when I was in-house counsel my companies were against signed statements because they felt that it sent the wrong message to their employees and requiring them to sign something scared the daylights out of them. If they knew they had to sign something they might not be as transparent but the flip side is true as well and they may be more transparent and more honest if they know they have to sign their name to it.
I think it really depends on the nature of the investigation and how many people are involved. I have gone back once or twice to get signed statements when there were no eyewitnesses to particular things but I personally am not sure how much it adds to a credibility position in those kinds of situations.
Joe: I agree because if in your investigation report the investigator is saying-hopefully you’ve got more than one person at the interview-those two people say this is what was said, I think the benefit you get out of having it a little less formalized probably outweighs the potential downside.
Xan: Yeah. I tend to keep my interviews impersonal, communicative and conversational. When I was in-house counsel-apologies to the outside litigators who are on this call-my employees would get scared when I would bring in outside litigators to do an investigation because they talked like lawyers and they scare people.
Sometimes you want to scare people but sometimes you don’t want to scare people or you want to at least use scaring someone as a strategy. I don’t like to get so formal with signed statements because I think it ratchets up the seriousness and the scare factor which you may want but I haven’t found it to be essential.
Next in the report is where the body of your report is. It’s the summary, the allegations and the factual findings. There are a number of different ways of doing this. I’m going to share with you what I found to be my best practice based on years of reading reports and years of writing the reports and feedback from clients on how they like to see it.
I break out each allegation and each allegation is followed by the response. By allegation I don’t mean “Suzie Q. discriminated against me.” That’s the allegation. Underneath “Suzie Q. discriminated against me” are all sorts of things the complainant will tell you that Suzie did. “Suzie did this and Suzie said that.” Each of those is listed out separately or I bucket them in category of statements made regarding pregnancy, for example, followed by the response.
That way, it’s easy for whoever is the decision maker or the reviewer of the report to see “Here’s what the allegation was. Here’s what the response was. Here’s what the next allegation was. Here’s what the response was.”
Joe: Is this the response from the subject of the investigation?
Xan: Yes. After that I summarize in my findings what I thought actually happened. It’s where I will say “Look, three eyewitnesses heard this statement and that’s why I believe that either accused is telling the truth” or “The complainant is telling the truth.”
There’s no magic art to this. I think the goal is to make as crystal clear as possible what’s being alleged, what the response is and other factual findings you’ve made and then we’re going to get to the conclusion but they should be separate. I also recommend including a chronology of events if you think it would be helpful especially if these are allegations that went over a long period of time and to highlight any factual discrepancies at this part of this process.
When I have done reports where I summarized each interview one at a time, I have gotten feedback that having an executive summary on top of all the interviews have been helpful as well. You have to be careful though because you want to make sure you’re not cutting it too short and make it clear it’s just a summary because reading through all of the investigation first just sort of thought wise is not how people think. They don’t want to know what everybody said individually. They want to know what was alleged and what you found.
Joe: One of our customers is the West Virginia Fraud Commission and they do investigations that will have hundreds of interviews and thousands of pages of documentation. Similar to you, they go with an investigation report that’s all in so you don’t need to go and reference other documents.
One of the things they do is exactly what you described. They have sort of an appendix, if you like, that has the full notes of every interview but in the actual meat of the report is just sort of bullet points like “When we interviewed Joe here were the three takeaways, the three inconsistencies or the three things that were sort of material.” Instead of having to read the 100 pages of interview notes you can just sort of get those three or four bullets for each person they talked to.
Xan: That’s a good option as well. The next step is your conclusions. Your primary question to answer if you don’t do anything else is “Was there a violation of company policies, guidelines, standard operating procedures, etc. or not?” You have to get to that answer and I’ve seen a number of investigation reports where you can tell the investigator is not sure so they don’t answer the question. We’re going to talk about what to do if you’re not sure. You have to answer the question; that’s why you’re doing the investigation. You apply the specific policies to the facts and I have an example later on.
The person who’s making a decision based on your report can’t really rely on it if you give conclusions but no explanations of how you got there. Trust me if you’re ever on the stand one day you’re going to be expected to articulate why you decided what you did so put it in the report. If there are any issues that can’t be resolved during the investigation, say so and explain why. I’m not a big fan of sort of ignoring the elephant in the room in a report.
Just to be sensitive to time I’m going to go a little bit quickly through documenting credibility decisions. In most cases you’ll have some corroborative evidence that you can cite in your report as to why who you thought was telling the truth or whether you thought there was a violation or not but if you’re making a credibility decision which is very frequent in employment discrimination cases because often there’s stuff said between two people in a room and nobody else was there, explain the basis of why you thought one side was more likely to have happened or have been said than the other.
If you absolutely can’t make a credibility call, I do recommend saying so in the report. Don’t be afraid to acknowledge that there is a gray area. That’s important for the decision maker to know as well. Below is an example I’ve given of how you can actually say “I can’t make a credibility call.” I know i-Sight already has a webinar on determining credibility so I’m going to move on from this.
Recommendations for corrective action in the next piece of the report but before you even get to this stage you really need to determine if this is supposed to be part of the investigator’s responsibility because sometimes it is in certain organizations but not in others. You really need to understand expectations before including any recommendations for corrective action in a report as this can create potential liability if a company chooses not to follow the recommendations for any reason.
To Joe’s point, this is an area where you might need to have a verbal conversation before putting pen to paper. If it is part of your responsibility, determine if corrective action is required first. If there’s no violation, there’s no corrective action needed. If there is a violation, as I mentioned earlier, whatever remedy the company puts into place has to be designed to prevent future occurrences of similar conduct [inaudible 00:31:00].
In most of my investigations I am asked “Are there changes we should or consider make even if you don’t find a violation?” That’s another thing I will verbally discuss before putting it in a report because it does become part of the document.
Often there are structural changes or you might need to retrain on a policy because there’s a lot of confusion out there so it’s something you should talk about before it actually goes into the document. The best practice is to include what remedy was implemented if there is going to be a remedy and when. I have seen this often added as an addendum to reports because often a lot of time passes between finishing the report and it circulating and people deciding what to do about it so you don’t want it to look like the investigation took a really long time.
One of my clients puts a little covered memo on top of the investigation report saying “This is the corrective action that was implemented on ________” and that becomes part of the final record. I think we’re ready for the next poll question, Joe.
Joe: Okay. I’ll need to pull that one up. This one says “How confident are you that your workplace investigation reports would survive judicial scrutiny?” This will be an interesting one. I’m just going to take two minutes. We’ve had a bunch of questions come in. A couple of them are sort of grouped together then we’ll get your take on what people are showing at the poll. It was around the interview process. A couple people asked “What do you think about taping interviews?” Another one asked about videotaping interviews. That’s from Mary Torango and Roger Lopez. They each asked a question. I don’t know if you have a take on that.
Xan: I personally do not tape interviews or videotape interviews. There have been times when I’ve had a second person sit in on the interview for a couple of different reasons. Sometimes it’s for note taking and sometimes it’s to watch. When you’re taking notes and asking questions you often miss body language, tenor and tone. I think if you have the resources it’s a good practice sometimes to have somebody with you.
I think taping or videotaping depends on what resources you have available and it depends on the seriousness of the allegations. Sometimes these are major government fraud investigations. I’m making a broad generalization here but employment matters are generally bet-the-company kinds of matters in most cases and there are lots of investigations that are. I think that as part of the planning for the investigation you really need to think through strategically whether taping or videotaping would be useful.
There have been investigations I did where there was a huge layoff that was about to happen and we were going to lose lots of people interviewed. My guess is that it would be hard to get them back and we knew litigation was going to happen. We knew we were going to get sued and in that case we did decide to videotape but you have to be careful because it also does ratchet up a sort of scare factor.
Joe: I was going to say it reminds me of what we were talking about earlier until we just put in another question about signing the statements. Context is everything. Like you said before, I think whether you’re making them sign a formal statement, audio or videotaping it has the same effect of sort of freaking people out and putting them on guard. There’s a time for everything.
I’m just looking at our poll results. Just about everybody has voted now so I’ll close out the poll but it looks like about 25% are extremely confident that they’ll survive judicial scrutiny and 63% are somewhat confident. Eight percent are not at all confident and 3% [inaudible 00:34:52]. You guys can call us afterwards and we’ll help you out.
Xan: Let me get my checkbook out. I’m going to move on to drafting pitfalls. This is the single biggest drafting pitfall that I’ve seen in investigational reports and here are two samples. I anonymized them but these came right out of reports. The first one is a statement that says “While the manager’s conduct was not discriminatory based on sexual orientation his behavior created an environment that was hostile and unwelcome in the workplace, particularly for the employee who’s gay.” The second one is “The manager discriminated against the employee because of her pregnancy.”
These really raise two critical problems if you put statements like these into investigational reports. Your job as an investigator in most investigations is to make findings that relate to policy not conclusions of law so when you say the manager discriminated or the manager did not discriminate, you are making a conclusion of the law not a conclusion as to whether a violation of a policy or a rule has happened and only a judge or a jury decides whether there has been a violation of law and then only if a lawsuit is filed.
This may sound like semantics to you but it’s really important from a litigation perspective because plaintiffs’ attorneys will look at the report and say “Oh, so you thought there had been discrimination, didn’t you?” which likely wasn’t your intent. Your job is to find out whether there has been a violation of company policy and if you make conclusory statements about violations of law . . . into hot water down the line and that’s not really what you’re doing.
The second part about conclusory statements-and this goes to the second one-is your job is to make a finding of fact and provide the facts that support the conclusion reached so even if you were to say “Suzie Q. violated the discrimination policy, period,” that’s an okay sentence as long as it’s after a long list of facts that got you there. I’m not going to read this next slide out to you because you have it but here’s a rewrite of what I’m talking about. You list out all the facts that support your conclusion that the policy has been violated.
Joe: It sounds like the key is “This is the policy, these are the facts that lead us to think there was a violation of that policy and by the way it’s the discrimination policy or the harassment policy.” For everybody online, we’ll obviously send a link to these slides afterward so you can get a better feel for this and read through it in more detail. I think there’s a key difference between putting in as you called conclusory statements versus this one. There’s definitely a key difference there.
Xan: Okay. Typos and errors. I have to say this is not just about professionalism. It’s about your credibility as an investigator because I have seen plaintiffs’ attorneys use these kinds of mistakes in reports to question your credibility. What they do is raise a question as to an investigator who might be careless in the drafting of the report might also have been careless in conducting the investigation. It may not be true but it’s what is doubted. They’ll raise that kind of a question. I just want to call out a couple of these that are important.
The first one is quotations. Be very careful about putting anything in quotes in your report unless it’s from a recorded interview or a signed statement. If it’s not, I never use quotations around statements people have made to me in interviews. It can come back to haunt you. It’s highly unusual you ever get it exactly right and then they can question your credibility and ask “Why did you say it this way? Did you say it this way to make it more protective of the company?” It’s just not worth it.
I’ll sort of skate around it a little bit and say “In ________’s interview, ________ said something to the effect of . . .” and then I don’t use quotations. When it’s a critical statement I have gone back and re-interviewed someone and said “Can you tell me again what you said during this meeting?” Then I’ve got two sets of notes about what comment they made. If it’s different than what they said the first time I might ask them about it and say “Well last time we met you said ________. Is it that you just don’t recall exactly what was said in the meeting?” It will give you a better opportunity to get it right.
Abbreviations: Lots of organizations have internal abbreviations. Make sure that you at least spell them out once. Keep in mind what we talked about earlier, that an external party needs to understand it and in many organizations those abbreviations of departments and divisions change all the time anyway.
Be consistent in your tenses. Use first person or third person but don’t go all over the place.
Tone is critical in these reports. You really want to avoid emotional and judgmental or even value-laden words to describe events.
You need to set the right level of formality in these reports because you might be questioned about it later. I have one quick note on redundancy. To make the report as tight as possible, try to eliminate redundancy. An example of this is if you have three eyewitnesses that were interviewed who confirmed a particular statement was made, rather than listing it out three separate times I just will say “Three eyewitnesses confirmed ________ statement” and name them if you need to. It’s about pulling things that are common in the report together and bucketing them.
We could spend an entire day talking about privilege but I’m not going to do that. I’m only going to spend a minute or two. You do need to understand the basics of privilege if you’re the one drafting the report and whether or not the investigation was being conducted at the direction of counsel and/or under attorney/client privilege. If so, don’t forget to include this language on the written report.
It doesn’t count if you’re just rubberstamping it. The investigation really has to be done because a lawyer directed it to happen. That being said, there are some courts that recognize what’s called a self-evaluative privilege rather than an attorney/client privilege that says “Self-knowledge in order to comply with regulations could be protected,” and there’s a privilege that attaches so you might not have to disclose it later on. That’s a different kind of privilege. At least in terms of the attorney/client privilege it really has to happen for you to put it on the report.
In employment cases privilege is often waived over the report. I talked earlier about how it’s in your best interest to show that you looked into things. That being said, you want to try and preserve your control over if and when to waive it and that’s why you mark the document.
There has been a lot recently in the news on in-house lawyers as investigators and being advice givers for the company and how that plays out in a waiver context. If there’s interest in that we can talk about it more at the end but since most of you have HR conducting your investigations I’m just going to say it’s a watch-out area and it can get outside counsel or even in-house counsel into the hot seat if they’ve done both. Maybe that’s a pitch for having external investigators. Most of my referrals for investigations do come from company’s outside counsel because their outside counsel doesn’t want to risk being conflicted out of a subsequent lawsuit because they did both the investigation and providing of legal advice.
I recommend you keep the document in draft format until it’s ready to be finalized. I have a draft watermark on every page so I don’t forget. It just automatically pops up. You should label each version of a draft sequentially. You want to make sure if you’re ever called to the table later on and you have to explain all of the different drafts, you have a good clean record of which one you wrote and when. Joe, we’ve got the next poll question.
Joe: Yeah, we’re getting out of time obviously because of the phone issue we had but I’ve got a question that seems to fit great here from Rhonda Green. She was just asking about interview notes and in general your investigation notes as you’re going through and whether or not those are privileged or do you have to do something special with them to make them privileged? I’ll let you chew on that while I launch the next poll.
Our last poll is, “Does your organization have a policy or conduct training on investigations including how to complete investigation reports?” Maybe some of you have been through internal training on this very topic. I’ll wait for us to fill that out. Xan, do you have any thoughts on investigation or interview notes related to privilege?
Xan: Yes. In many cases the courts are coming out differently on this but I’ll give you my quick two cents on it. You can have privilege within an organization that applies to communications between an individual such as an investigator and an attorney if the communication the individual made was at the direction either of their superiors or of the lawyer to get legal advice.
What does that mean in terms of your interview notes? If you’re doing work at the direction of counsel to gather information that helps an attorney provide legal advice, the privilege applies so your notes, arguably, can be privileged because they’re notes that you wrote to put a report together which you are giving to counsel to help counsel determine legal risk and advice the lawyer needs to give back to the company.
That’s sort of my two cents on interview notes but trust me there’s lots of haggling over which pieces of investigation reports are discoverable and which are not. What I recommend you do because obviously today’s discussion is not providing legal advice, is talk it through with your lawyer first.
Joe: We see the same thing. Obviously providing investigation software there’s a lot of sensitive stuff that goes in there and we really see the whole gamut in terms of some clients that want to be able to tag a whole case as attorney/client privilege and others that have particular items as they add a note or add a piece of evidence and they want to be able to tag it as such. There doesn’t seem to be one golden rule.
To close out the poll it looks like 38% of the people in attendance today have been through some kind of training in their own organization while 57% say no. I think that would be consistent with what we see too. A lot of HR people get tagged with this responsibility to go investigate something but they’ve never really been trained on how to do that or what the output of that should be. I think often times it’s pretty tightly correlated to the size of the company too. That often would happen in smaller companies.
Xan: I do think it’s important to have some training because these are very time sensitive and when they’re HR generalists who have other obligations and their sole purpose is not to conduct investigations, they’ve got 50 million other things going on at once. It’s easy to drop the ball on these. I have defended a number of matters where things just didn’t even get really looked into the way they should have let alone a report written because they were juggling so many things and that is very problematic from a defense perspective.
Joe, I have two slides left. I want to be sensitive to time. Are you okay with me running through the last two quickly? [Inaudible 00:46:07]
Joe: Yeah. I think we’ll have to go a few minutes over just to get through it. There are a few more questions I’d like to ask so if people need to leave they can but maybe we’ll run five or 10 minutes late to get through it.
Xan: Okay. The next topic is on retention of investigation reports and we just talked a little bit about interview notes. There are people out there who will disagree with me on this but I recommend you retain all investigative material-everything-notes, drafts, chronology and everything and you keep it in a confidential location which does not mean their personnel file.
You should keep in mind that there are certain states-I know Illinois is one of them-that require employers to keep certain documentation related to discipline, probation or termination in employee personnel files. That does not mean you should put the investigation report into the file. You can, but since in certain circumstances you have to keep documentation of disciplinary action that might result from an investigation in the file I’d recommend the same kind of cover memo saying, “We took ________ action as related to report. The report is in the employee relation file; see employee relation file,” or something like that so that not everything is in the personnel file.
This is helpful from an internal perspective because managers and HR reps change all of the time so having some kind of documentation in the disciplined employee’s personnel file gives you information for future decision making about careers and if further issues occur down the line. Most of you are probably aware that there are evidentiary sanctions for destruction of investigative materials. In the Federal Discovery Rules which were new and are no longer new, there are huge penalties that can be imposed if a company allows the destruction or deletion of relevant documents including investigation notes after the company’s on notice of a potential claim.
That’s why I recommend you keep everything. The general rule is about two years following the relevant employee’s departure from the company however if you are in anticipation of litigation either because you got a formal complaint or sometimes even if it’s just a verbal threat from an employee, you have to preserve everything even if the company has a document destruction policy until you’re notified otherwise, usually by the law department. When in doubt I say keep everything including investigation notes.
Joe: That’s an interesting one I would just clarify with you because with the webinars we’ve done and obviously with customers it seems like this is another one where there are a lot of opinions and there’s actually a question that came in. Kelly Berwood asked, “Should we destroy all the previous drafts of the investigation reports once we’ve got that final copy?” It’s the same thing with interview notes. I’ve had conflicting ideas on whether or not you should retain all of that stuff or once you’ve got your final report all else can go to the bonfire. It sounds like what you’re saying is that when in doubt-or maybe not even when in doubt-just don’t destroy anything.
Xan: I think you’re right, Joe. There are lots of different perspectives on this. I think the one thing everyone agrees on is if you are on notice that there is a claim, keep whatever you have that day.
Joe: How do you define “on notice?” Let’s say I call the whistleblower line or I call my HR manager and say “I think my boss is stealing money.” Is the original complaint or tip or referral when you’re on notice?
Xan: I wish there was a clear answer for “What does reasonably anticipate litigation” mean? [Inaudible 00:49:57] deciding on it and there isn’t. The practice we’ve used is that if an employee threatens a lawsuit or they say they have a lawyer or they’re [inaudible 00:50:10] a lawsuit . . . . It’s easy to know if you’ve already gotten the charge or the lawsuit in hand. It’s a bit of a gray area short of that.
Joe: So the key is to reasonably expect litigation. That’s the key definition.
Joe: In that case the examples I gave don’t necessarily trigger the retention of everything. I could complain about my boss stealing money and it may or may not go to court.
Xan: Arguably you are not in anticipation of litigation at that stage but once you are keep everything. I know there’s a lot of discussion about “Assuming you are not in anticipation of litigation should you keep all the drafts of a report?” People come out in different ways. Some people say “Once the final is final get rid of all your drafts.” I keep all of my drafts because sometimes there are reasons for why I’ve made . . . . That means I might have to produce all of my drafts but I know why I made changes in my drafts and I usually do not talk to the decision maker until my final version is done. It’s still in draft form but it’s done.
One of the questions is “Well maybe you went back and made changes under pressure to make it look a little different,” so you need to be careful of that. I don’t necessarily think it’s a reason to get rid of all your drafts. I do know there are people who advise otherwise but I personally keep my drafts. I’m also an external investigator at this point so I don’t report to anybody in the company. They pay my bills regardless of what I say so I’m less concerned about drafts or being pressured by management to change things because I don’t report to them. They may not hire me again but I’m about as objective as they get because I don’t have to go back to the organization the next day.
Here’s the last slide before the template of what a report could look like. This is about “Now you’ve got the report. What do you do with it?” The first step is as it’s still in draft see whether it needs legal review prior to finalizing it. That can be important because legal counsel can point out legal issues that might need to be more fleshed out by you as an investigator.
They also can help determine if certain facts meet legal standards, which is their job not the investigator’s job. They also can help identify what forms of corrective action might be legally appropriate or be more familiar with past practices in that organization because generally speaking, remedies should be consistent with past practices in similar situations because if they’re not, that in and of itself could give rise to claim. For instance, “Why did you fire all of the women but you didn’t fire the guys when they stole money?”
One of the things to talk about as a lawyer as we mentioned earlier is resolving any privilege issues particularly with respect to distribution of the report. Can an investigator send the report to non-lawyers? Should the investigator just send the report to the lawyer and then the lawyer decides who else it goes to? Those are complicated privilege issues.
I do give a verbal summary update on what I found before providing a written report. As an external investigator it’s helpful because it gets the juices flowing on what they want to do and it helps me finalize the report and it doesn’t shock them when they get it if it’s got really bad news in it so it already sort of plants that seed.
Do not ever give the complaint to the complainant or accused unless required by some law. I know internationally that it’s required in certain circumstances but not in the US. No matter how much they say or demand that they get the report, I do not give them the report and no company I’m aware of hands the report over. It really depends on the circumstances but I have seen a short, written write-up or a verbal write-up [00:53:56] on what the findings were but not the actual report. It can be strategic on how much detail you provide them.
We just talked about keeping drafts. If you keep your drafts, make sure that the draft is not what goes when you get subpoenaed or a government agency asks to see it. Inadvertently once I saw a draft go to the EEOC and it launched this huge discussion about “Why is it a draft? Where is the final and how many drafts do you have?” [Inaudible 00:54:25]
Joe: Ouch. Speaking of a credibility problem.
Xan: Exactly. By the way, this need-to-know basis is really important, particularly for protecting companies from retaliation claims after an investigation is concluded, especially, I found, if there’s no finding of any violation.
For example, if the complainant is a current employee and the investigation is done, they can claim that future negative things that might happen to them such as a bad performance review or not getting promoted were being done in retaliation for having filed the earlier complaint. If a company can keep knowledge of the complaint from future decision makers about the employee it can protect the company because then you can say “Look, the decision maker couldn’t have relied on the fact that you were a ‘complainer’ because they didn’t know.”
That’s not always easy to do because many times the employee is complaining about their manager and then it’s still their same manager and the manager knows that there was a complaint, but in certain situations keeping it on a need-to-know basis is important. People like to gossip about a lot of this stuff. It’s really critical to keep it as contained as possible because you don’t want to affect reputations especially if there were no violations that have been found.
If your report is detailed, it often contains eyewitness statements that could be sensitive or critical of the company. Keep in mind that individuals who participate in an investigation by being interviewed are also protected under the retaliation law.
This is sort of a quick format that I personally use. You can see that it’s very formal. Your report doesn’t have to be this formal but this is how I do it. I have found that you thank yourself down the line if you take as much time as you have to make it as professional as possible because the form itself adds credibility.
The version I’m looking at has a cc to the employee personnel file and as I mentioned earlier, I do not have these reports put in personnel files but some of my clients do. That’s why it’s on here.
Thank you everybody for staying past the time. I’m happy to continue on and answer whatever questions Joe or any of the other participants have. That’s what I’ve got on writing an investigative report.
Joe: That was great, Xan. I think one other thing I’ll add that maybe we’ll fire out in the email we send out that has a link to the recording is that we actually have an investigational report template as well that people can sort of use as a starting point. It’s exactly what you’ve got here with just a bit more meat on it with sample interview notes and things like that they can use as a starting point for a nicely formatted document.
We have a couple of questions and then we’ll have to end. If any other questions come in maybe we’ll follow up by email and give you a chance to respond to those, Xan. We’ll do a couple more before we cut out.
One is just asking about whether or not to investigate. This is not really staying on target for today but the idea is if a complaint has been made before you investigate, how do you decide if it’s credible or if we should be investigating this or not?
Xan: My practice has been to not even call it an investigation unless you have to. I think if an employee raises a concern the company should look into it. Now looking into it can be one conversation or it could be a year-long investigation or everything in between. By the way, they don’t have to use the magic words that they’ve been discriminated against. If you’re not sure what they mean, I often have HR put the policy in front of them and say “Is this what you’re talking about? Because if it is it’s very serious and we’re going to need to look into this.” Often employees say “I don’t really know why I’m being treated this way.”
Even if it isn’t a formal investigation complaint that comes in and an employee is really having trouble with somebody in the workplace, it may not need what we’ve been talking about today-a full-blown investigation and a report-but it’s still something that Human Resources wants to know about. They may need to do some sort of intervention or coaching. How you review a concern doesn’t always mean it has to be an investigation and a report but it does mean it’s something you should look into and I think it really depends on the circumstances how deep of a dive you go.
There are clearly ways of finding out if what they’re talking about is a violation of company policy or the law or SOTs and I’m a big fan of being transparent and just asking them. Sometimes you might run into an employee who says “Yeah. That is what I’m talking about” and then you ask them why they think that and ask them for details. You don’t back off of it but you also at least have a conversation. Employers can get into a lot of hot water by ignoring these things.
I constantly get asked whether anonymous complaints should be looked into and the answer is it depends how much detail you have. If it’s everything but the person’s name, look into it. If there’s enough information in there that you can start looking into it you should. It doesn’t matter if it’s anonymous or not.
Joe: I think a lot of that comes back to the responsibility to investigate. Taking a year to respond to a complaint isn’t good and if I deliver a bunch of information that any reasonable person would think “You should look into that” and you do nothing, that’s not good either. [Inaudible 01:00:07]
We have one last question before we go. Somebody was asking about document retention. I know you mentioned this briefly as you were presenting but maybe we can talk about that again. Maybe in the circumstance that there is or is not going to be litigation, how long should we keep our notes and our report for and how can we retain that information?
Xan: Joe I think it’s very clear. If you know you’re in anticipation of litigation–if you’re not sure ask your legal counsel and they will help you determine if you are or not in anticipation of litigation-keep everything. They will talk to you about how to do that. Small organizations don’t always have this but large organizations have clear document-retention policies. They issue statements saying “Don’t delete anything.” They can also go behind the scenes and grab all of your computer records so whether you delete it or not they’ve got it.
In anticipation of litigation, keep everything. I mean even the scraps of paper that you might have written down the date that you were going to be interviewing somebody. Just keep it all. It’s just not worth the headache to be questioned about it down the line why you might have thrown away that piece of paper.
If you’re not in anticipation of litigation, most companies have document-retention policies and those take into account a number of laws-employment laws and otherwise-that tell you how long to keep things.
Joe: Are some of those industry specific, Xan? I don’t know this stuff off the top of my head but we have a lot of clients in the banking and insurance sector and I feel like most of them keep their case files and reports in their system for seven years and then in other industries it’s not that long. Do you know if there’s any sort of industry-specific laws or guidelines?
Xan: I’m sure there are. I don’t know the details. I know at my former employer we used the seven-year from termination rule because we did a whole survey of different laws and said “Some laws have two years and some laws have six years. It’s a statute of limitation that you look at so that if you were to get sued, you could be sued in six years so you want to keep the records for six years.” That’s often where the retention comes from. It’s from the statute of limitation [inaudible 01:02:35] so we did a seven-year rule.
I have to tell you that we didn’t always have the resources to clean out the file room so stuff was in there for 15 years. Our problem was not throwing out documents. It was that we didn’t have people to clean out the stuff.
This is really an issue where if you’re not in anticipation of litigation you should talk to your lawyer and be pretty familiar if you have a retention policy and what it is. I don’t mean to punt on this answer but I don’t think there’s a clear rule to follow in terms of how many years to keep things.
Joe: I was thinking of industry-specific regulation but as you say it’s probably more about taking the cautious route relative to the statute of limitations and not that there’s some industry-specific thing.
Xan: I wouldn’t be surprised in the banking industry but it’s just not an area that I’m familiar with or to know whether they have specific regulations other than with the federal and state laws.
Joe: Someone else, Lana Blair [inaudible 01:03:37] but this one’s interesting. Do you have to do an investigation report every time? Are there certain kinds of investigations where we should be doing these kinds of reports? If I’m doing a fraud investigation [inaudible 01:03:49] should we be doing a report like this every time or just certain times?
Xan: My general answer is yes, you should do a report every time. Does it have to look like this report and be this detailed? No. I have advised clients that a 1-page file memo in certain circumstances is okay. For example, I had a client where there was a fight at their facility, two guys were punching each other and there was one eyewitness. She interviewed the two guys fighting, she interviewed the witness and she fired the two guys fighting. It was pretty cut and dry.
Joe: Who won the fight?
Xan: I actually don’t know who won the fight. I think they both lost because they both got fired. She said “What kind of documentation do I need?” In some states you have to write termination letters but it’s not like you’re going to write a long detail of what happened. I said, “Take an hour and write up a quick page to yourself from HR generalist to the file. Here’s the date.” Say “On ________ date I interviewed these three people. They got in a fight. Here’s the eyewitness. Attached is the eyewitness statement. We fired both of them.” I think the answer is that it depends. I always recommend at least something in writing even if it’s just a file memo to yourself that something happened and make sure that that memo doesn’t just get stuck in your drawer. Most HR generalists keep employee relations files that get passed on to the next generalist when they move around to different client groups or they leave the organization.
Joe: I think you’re right. I think if you’ve got a nice template inside the organization it allows you to create a nice one-pager or if it’s a more complicated investigation you can blow it up into what it needs to be. I think you want to be able to show due diligence and that you didn’t just decide to fire the two of them. You gave it due consideration and that’s how you came to your conclusion and outcome.
We’ve gone 15 minutes over time and I appreciate that Xan. There are lots of people on and still listening so I really appreciate you taking the time to take the extra questions. I apologize to everybody for our crazy phone call stuff at the beginning but hopefully everybody was able to get back on and get the lines sorted out.
We’ll follow up with that email probably on Monday where you’ll get links to our template, the recorded version of this and contact information for Xan and me. A couple of people have already come back writing that you did an awesome job so thank you, Xan. A couple others are asking about our case management conference so I’ll follow up with each of you individually as well. Thanks again, Xan. That was great.
Xan: Thank you very much and thanks everybody.
Joe: Have a great day everybody. Good-bye.