Common Investigation Pitfalls and How to Avoid Them, Part 3: Wrapping Up

In an increasing trend, parties to employment lawsuits find themselves litigating not only the plaintiff’s underlying employment claims but also the company’s investigation – or lack thereof – into the plaintiff’s complaints.

A variety of potential pitfalls can compromise the actual and perceived quality of an investigation. That, in turn, can cast a shadow on the company and its motives, either to the jury in a future lawsuit or in general to other employees. This third installment of the three-part series will identify common investigation mistakes and how to avoid them.

PITFALL #8: Failure to Properly Document (“I really thought I’d remember.”)

It’s tempting for investigators to skimp on documenting when they’re busy or the complaint seems minor. But the investigator’s documentation will be Exhibit 1 in any future litigation, and it speaks to the thoroughness of the investigation and the reasonableness of the findings. Plus, an investigator who looks organized will have more credibility at a deposition or trial.

A great way to avoid this pitfall is to prepare an investigation plan and regularly update it as the investigation unfolds. The plan is a “living document” where the investigator should:

• Identify all issues
• Identify applicable policies, rules, and documents
• Determine which witnesses should be interviewed and in what order
• Track and record what is being done and why
• Provide an explanation for any uncompleted tasks
• Document reasons for not doing certain things (especially anything you might be asked about in deposition a few years down the line)

The investigator should revisit and finalize the plan before closing the investigation, tying up any loose ends. Of course, it’s also important to:

• Take good interview notes
• Record information about documents received in the investigation (e.g., who provided what, and when)
• Maintain a well-organized investigation file

Investigators should remember they can be deposed on an investigation years after it is completed and long after their memories have faded.

PITFALL #9: Failure to Reach Conclusions (“It’s a ‘he said, she said’ case – there’s no way to tell what really happened.”)

In a “he said, she said” type of case, it’s easy to simply state that no conclusion can be reached – but the company can’t take the right actions if the investigator doesn’t make conclusions. In most circumstances, the investigator can determine that something “more likely than not” happened after considering these credibility factors:

• Inherent plausibility of witness’ story
• Corroboration (by other witnesses or documents)
• Internal consistency of witness’ statements
• Evasiveness vs. forthrightness
• Prior lies vs. prior truthfulness
• Motive to falsify
• Demeanor
• Past record (fifth time accused of similar behavior vs. squeaky clean record)

Asking witnesses to explain discrepancies during their interviews can help in making credibility determinations down the line. Making an evidence chart can assist in the analysis and drawing connections across complex cases. Investigators also have the option to determine that “inappropriate conduct” occurred without concluding that “unlawful sexual harassment” or a violation of policy occurred.

PITFALL #10: Bad Investigation Reports (“It was obvious to me what happened, so I didn’t spend too much time explaining.”)

Investigation reports can be extremely helpful for making decisions and for defending those decisions down the line. On the other hand, a bad investigation report can call the quality of the entire investigation into question. A good investigation report:

• Summarizes the investigation process and facts
• Makes factual findings and conclusions
• Avoids legal conclusions
• Supports findings with evidence
• Analyzes conflicting evidence, especially “he said, she said” issues
• Explains the investigator’s reasoning
• Where appropriate, avoids unnecessarily identifying witnesses by name if that may expose them to retaliation or other adverse consequences

Part 3 in a nutshell: Investigators should document everything as they go, try to reach conclusions even when it’s not easy, and make sure any report they write supports their findings and the quality of their investigation process.

That concludes our three-part series on avoiding investigation pitfalls. Thanks for reading!