How to Write Stellar Investigation Reports
Details
Xan Raskin, Esq., SPHR, and founder of Artixan Consulting Group, shares tips and techniques for preparing comprehensive and legally defensible investigation reports.
Includes:
- 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
Webinar Transcript
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 greattips on how to summarize your investigations into concise and clearinvestigation reports and Xan Raskin will be the webinar presenter.
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My name is Joe Gerard. I'm the Vice President of Sales andMarketing with I-Sight. As many of you know, we provide case managementsoftware for investigations. Normally we work with the HR and ER teams alongwith compliance or corporate security. Our customers include big companies likeAll State, BP, Coca Cola, CVS Pharmacy, JP Morgan and more than 300 othercompanies.
I'd also like to invite all of you to attend one of our30-minute demonstrations that we're going to be holding next week. You canregister at our blog, www.i-Sight (now Case IQ).com and I'll also be sendingout an email after the webinar with details on how to register. That email willalso have contact information for Xan if you've got any follow-up questions orif you would like to speak with her you could do that as well.
One last thing before we get started is related toquestions. As we go you have the ability to pose questions as we're movingthrough the presentation using the Questions Box over on your control panel. Iwould encourage you to submit questions. I'll either ask them as we go throughor if we have time at the end we'll be able to present some questions for Xanas 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 investigationsbut also to do training for anyone that has investigation teams. She had a longcareer in the HR legal space before starting her own firm. She was a principallegal counsel at PepsiCo and then a VP at Bristol Meyers Squibb. She has alsoco-authored a book titled Issues in Employee Leave and we're really excited tohave 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 overto you.
Xan Raskin: Good afternoon everybody. I want to thankyou all for being here and of course to Joe and i-Sight (now Case IQ) forsponsoring this webinar on writing workplace investigation reports. As youmentioned, I'm Xan. I own a human resources consulting business in New YorkCity. I really have 360 degree view into investigations. I used to litigate, Iwas an in-house attorney and now I'm an internal expert to companies conductinginvestigations.
I've done a lot of workplace training although this is myfirst webinar so bear with me. It's important to think that you come awaythinking that this was interesting and worthwhile but let's be honest. I'm suremost of you would agree that writing the investigation report is just not thesexy part of the process. You may think it's not as strategic as the importantplanning stage on how to approach the issues and it's certainly not asinteractive as conducting interviews where you get to hear all of the juicystories.
How do I make talking about the writing of the reportinteresting for you especially since you can't see me and I can't see you? I amhoping to show you today that the report itself is in many ways the mostimportant part of the process. It's what you can use to show all the hard workthat you've done and if it isn't done well it can really send everything elsedown the drain. While it may not be the most sexy part, writing theinvestigation report really is critically important.
Here's the agenda of what we're going to cover during thiswebinar. You'll not that the slides are pretty text heavy and I do that so youcan refer back to them later. Because of this, with a few exceptions for someof the more important concepts, I'm not someone who's going to read out theslides to you. I'm sure that will put you to sleep. Some of them may go alittle bit more quickly by than you may want and I'll be talking about someother related things while the slide is up but as I mentioned you will havethem later as well as the audio broadcast.
I'm going to assume that most of the participants on thiswebinar have at least some basic understanding of workplace investigations andI'm sure some if not many of you have even more experience than I do. Becausethis webinar is focused on the writing of the report, I'm not going to go intoany discussion about the specific laws that are relevant to workplaceinvestigations or the steps to take before writing the report. I'm sure thereare other webinar sessions that i-Sight (now Case IQ) has in those areas and ifnot 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 oninvestigation reports in those kinds of circumstances as well for the samereasons especially if an employee is terminated as a result of an investigationinto other kinds of misconduct because those employees can then bring wrongfuldiscrimination claims or related claims against the company even if theunderlying 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'sEqual 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 fromreceiving 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 yousee should be that employee complaints can be very costly, very time consumingand what's not on this slide is that they also have a significant on reputationas well as employee morale. Just to pull out one of the statistics, employerspaid over $300 million back to settle EEOC charges last year in 2011. Thatdoesn't include any amount they paid to settle actual lawsuits or in verdictsafter trial. This was just at the administrative agency space. It's veryexpensive here.
The first point is that it can help you avoid claims alltogether. It's a document that employers can rely on to take action whereappropriate to remedy misconduct and it also provides a written report in theevent of future misconduct by the same employee. The obligation of a company ifthey find misconduct is to make it stop and not continue. They don't alwaysterminate employees as a result of misconduct as you all know. Having thereport is something you can rely on if down the line there is further misconduct.
In addition to avoiding litigation all together, effectiveworkplace reports can help you reduce the cost and duration of charges andlitigation or in limiting liability, particularly for punitive damages. In theunfortunate case that an act of discrimination does transpire in a workplace,companies can limit liability by providing sufficient evidence that agood-faith effort was made to enforce an anti-discrimination policy.
What does that mean? You have to adopt a policy, you have toeffectively police the policy but you're also required to have thorough andaccurate documentation of all actions that you took pursuant to the policywhich includes the writing of the report. This can potentially save employersfrom significant costs associated with lawsuits.
On the slide in the last bullet, what's really importantwhen you think overall about the importance of the report is that a judge orjury could look at it and take away that you took the issue seriously, thatthese concerns were looked into promptly and thoroughly, which is a term ofart, that you responded appropriately and had a documented good-faith basis foranything that you did on the basis of the investigation report.
There are two side benefits for workplace investigationreports that I wanted to put out as well. The first is that it can help you ifyou're the investigator to remember the steps you took if you're questionedabout it months or years later. I've seen HR professionals who conductedinvestigations be on the stands and whether you're an expert investigator ornot it's hard to remember everything that you did a few years ago, especiallyif you've done many of them so having the report in front of you as an exhibitto help you recollect the steps you took can be essential.
Lastly it can be used as an effective negotiation tool insettlement 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 andcall 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 tothem "That has nothing to do with why we fired you client; in fact yourclient stole from the company," or "Your client discriminated againsthis direct report and we did a prompt and thorough investigation. I'm lookingat 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 road map to the adversary of all the wrongdoing you uncoveredin an organization. It also might bring the investigation itself under scrutiny.
For example, the plaintiff's lawyer will look at the reportand say "Hey wait a second. You didn't talk to ________ and ________, andyou should have. It can totally derail things. You have to be very careful andstrategic about whether or not you use the report at an early stage insettlement discussions. I personally have never turner over the report to theother side but I've definitely given them enough information to make them thinktwice about pursuing a client claim.
I'm now going to turn things back to Joe and hopefully we'llhave our first poll question.
Joe: I'm just going to go onto the first pollquestion. Our first question today is: "Does your organization requirewritten 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 theyimplement case management and try to have consistent processes is to be able toproduce more consistent and concise investigation reports.
It looks like most of the people have voted. I'm not sure ifyou can see the results or not but about 68% are saying that yes, they arerequired to produce a report. About 18% say it depends on the type ofinvestigation. We've had almost everybody vote so I'll close off the poll andwe can move on from there.
Xan: Okay. I think that's great because I have seen anumber of cases where my clients have not done investigation reports and it'sreally come back to hurt them. I think it's great news that at least in someform 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 ofbecause there really are three critical components of a workplace investigationreport. The first is that it's organized and not just organized in terms offormat which we'll talk about later; it's organized so that anybody internallyor externally-the externally part is very important-can read or understand thereport 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 thisin 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 goesinto the report. We're getting to the nuts and bolts. I'm going to gorelatively quickly through these because we're going to go into each one ofthem in more detail. At the end of this presentation there is a sample outlineof a report with the headers. I know it's sort of hard to visualize here butthe key is really that each of these needs to be covered thoroughly in yourreport. There really aren't any magic words that you have to use.
Just take a look at these first components. Here is thesecond set of components. I think it's important to mention that although theseare really the key areas you have to hit there is a strategic component here interms of deciding on how detailed and specific you really want to be indocumenting the investigation.
You need to keep in mind that all non-privileged documentsmemorializing the investigation will likely be produced later in discovery iflitigation results and there can be drawbacks to making very detailed andcopious reports especially if there are inconsistencies uncovered or a lot ofmisconduct is uncovered or other inconsistencies in other investigationmaterials.
The flip side-and I talked about this in terms of thesettlement negotiations-is that well-drafted reports regarding theinvestigation as well as a description of the reasons a company might havetaken certain actions can protect the company in future litigations we talkabout. There's really no bright-line test on how much detail to include but Iwill be giving some tips today along the way. We now have our second pollquestion.
Joe: One of the things I was going to say is that itseems like with our clients the level of detail is the big area that is casespecific where often times a lot of our clients will have a review processwhere the investigator makes some kind of recommendation. Before that theyactually prepare the investigation report and sit down with the investigationmanager or legal counsel before they actually prepare that final report thatwill be consumed by other parties later on and say "What do we want our formalrecommendation or outcome to be?" I don't know if you've seen any of thatas well.
Xan: I have seen it. A little bit later in thepresentation I talk a little bit about verbal communication back to the companywhether you're an internal or an external investigator prior to writing thereport and what kinds of things you want to talk about and that's certainly oneof them.
Joe: I've launched the next poll where the questionthis time is: "Who inside of your organization is responsible for draftingthese investigation reports for complaints of discrimination, harassment ormisconduct?"
I think obviously discrimination or harassment a lot oftimes comes through HR but certainly other types of misconduct might comethrough internal audit, legal or different groups like that. It looks like justabout everybody has voted already.
It looks like about 80% have responded that Human Resourceswould be the department responsible for these reports and then it's splitevenly across all the four others. We've had just about 80% vote now so I'vegoing to close it off but it looks like Human Resources is the group that'sresponsible.
Xan: Okay. I'm going to move through the next coupleof slides a little fast just to make up some time but we'll certainly have sometime at the end for questions if there are certain areas I give a little bit ofshorter 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 toinclude: 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 ameeting with HR or it could have been an anonymous complaint. It's important tocharacterize 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 actualcomplaint.
I include the identity, position and department of theemployee or employees who initiated the complaint and of the individual orindividuals who are accused of misconduct. I don't rely on any writtencomplaint that might give me that information and not put it in the actualreport but I put it in the report. I'm going to talk a little bit later aboutwhether you should have attachments to the report or not. Regardless of whetheryou have attachments or not, I'd make sure all of the critical information is inthe document itself [inaudible 00:16:26].
Also include the names and titles of the investigator and abrief summary of the investigative process used. That means it could be assimple as a couple of sentences such as "I reviewed a number of companydocuments. I then had in-person or telephonic interviews, etc. I reviewedcomputer records." Just include an overall review of the process.Sometimes there are multiple investigators involved and they each handleddifferent pieces. This is where you would sort of overview that piece.
Joe: Would you include a couple sentences on thescope? I know a lot of our clients will have a sentence or two where theydescribe the scope of the investigation and that they tried to keep it limitedto X rather than falling down every rabbit hold that popped up.
Xan: Absolutely. I usually put that in the bottombullet under the High Level Summary of the Complaint Allegations.
Joe: Okay.
Xan: To me that's sort of synonymous with scope andsaying "This is what I looked into." That may be different than thecomplaint allegations. I have had investigations where it was determined thatthe complaint was bringing up issues that had already been fully looked into aswell as new allegations so I dropped a footnote and said "It's beendetermined that these allegations are not going to be investigated because theyhave already been fully reviewed. See report ________ to distinguish what'sbeing looked into and what's not."
You're absolutely right. Scope is really critical as well asthe timing of when the investigation began and when it was completed becauseunder the employment discrimination laws, as I mentioned earlier, prompt andthorough is a requirement although there's a lot of argument over what promptmeans. You want to show what the time frame of the investigation was and ifthere was reasonable delay I often drop a footnote explaining what the delaywas as well. Sometimes somebody on a leave of absence and you have to wait forthem to come back to interview them.
Joe: Is the interpretation of prompt based on scope Iassume? If I'm investigating one person and one of their employees or one oftheir staff versus a more involved investigation, how is prompt interpreted? Ifpeople 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 sinceI've looked at the case law but I do recall cases where waiting a few monthsbefore starting the investigation has been problematic because it gives theimpression that you just don't care about it and you don't understand the levelof urgency. Most of the stuff out there is on the initiation and not how longit took. What they're really looking for is whether you're shirking yourresponsibilities by sort of sitting on it and not actually looking into it unlessyou have good reason.
Joe: That's a great takeaway for people that isreally focused on as soon as you find out about it you want to initiate thatinvestigation. Even if it takes you time to ramp up the investigation you wantto show that you reacted as quick as possible.
Xan: Exactly. Even if that means you were just in theplanning stage and you haven't necessarily talked to people yet but you'vestarted 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 thedocumentation of evidence and that starts with the documentation of interviewsconducted. I include a laundry list of the individual, the date I interviewedthem, whether it was in person, telephonically, etc. and what their title wasat 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. Inmany cases I have to re-interview certain individuals because I need to doublecheck 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 andwhen and sometimes, when it's helpful, why they were re-interviewed.
Joe: Xan, do you ever include locations? I know I'vetalked to others that sort of feel that the location you choose for interviewsmatters. If I interview you outside your boss's door versus taking you to anoff-site boardroom somewhere it might affect how that interview data isinterpreted 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 objeive information but if you haven't interviewed everybody off site in aseparate 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 theobjectivity in the interview.
I then document anything else I looked at as part of theinvestigation, so all other evidence. I list relevant policies, any pivotaldocuments related to the complaint and an employment discrimination matter isoften overcharge, salary history or performance reviews. I don't personallytake signed statements of witnesses but it is a common practice amonginvestigators so if you have signed statements you should list them in thissection. If there are dates of the documents available whether those are emailsor policies, I include that on this list part as well.
I mentioned earlier that you should consider includingimportant documents as attachments to the report. I know some investigatorsreally like doing this and some are against it. I think that the documentshould stand alone on its own. For example, if there's a particular provisionof a policy that's relevant I will cut and paste it and put it into the actualreport 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 ifand when litigation occurs, if an agency charge results or if there's a reasonto revisit the report. I know we've wasted a lot of time when I was in housetrying to find the policy that was in effect four years ago or seven years agobecause they change it all of the time. If you put it with the report you haveit easily accessible. Joe, did you have a question?
Joe: A couple people have sent in questions askingabout the signed statements you mentioned in passing. They're asking if there'sa reason why you don't do the signed statements. Is there something behind thator is it just something you don't do?
Xan: I think there are pros and cons for signedstatements. My personal philosophy on investigations is that everybody'stelling me the truth when I start. It's just their truth. I have had a fewoccasions where I could absolutely tell somebody was outright lying to me. Iknow you've had a webinar on how to determine credibility and there are acouple of slides on that later on in deck.
At least when I was in-house counsel my companies wereagainst signed statements because they felt that it sent the wrong message totheir employees and requiring them to sign something scared the daylights outof them. If they knew they had to sign something they might not be astransparent but the flip side is true as well and they may be more transparentand more honest if they know they have to sign their name to it.
I think it really depends on the nature of the investigationand how many people are involved. I have gone back once or twice to get signedstatements when there were no eyewitnesses to particular things but Ipersonally am not sure how much it adds to a credibility position in thosekinds of situations.
Joe: I agree because if in your investigation reportthe investigator is saying-hopefully you've got more than one person at theinterview-those two people say this is what was said, I think the benefit youget out of having it a little less formalized probably outweighs the potentialdownside.
Xan: Yeah. I tend to keep my interviews impersonal,communicative and conversational. When I was in-house counsel-apologies to theoutside litigators who are on this call-my employees would get scared when Iwould bring in outside litigators to do an investigation because they talkedlike lawyers and they scare people.
Sometimes you want to scare people but sometimes you don'twant 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 itratchets up the seriousness and the scare factor which you may want but Ihaven't found it to be essential.
Next in the report is where the body of your report is. It'sthe summary, the allegations and the factual findings. There are a number ofdifferent ways of doing this. I'm going to share with you what I found to be mybest practice based on years of reading reports and years of writing thereports and feedback from clients on how they like to see it.
I break out each allegation and each allegation is followedby the response. By allegation I don't mean "Suzie Q. discriminatedagainst me." That's the allegation. Underneath "Suzie Q.discriminated against me" are all sorts of things the complainant willtell you that Suzie did. "Suzie did this and Suzie said that." Eachof those is listed out separately or I bucket them in category of statementsmade regarding pregnancy, for example, followed by the response.
That way, it's easy for whoever is the decision maker or thereviewer of the report to see "Here's what the allegation was. Here's whatthe response was. Here's what the next allegation was. Here's what the responsewas."
Joe: Is this the response from the subject of theinvestigation?
Xan: Yes. After that I summarize in my findings what Ithought actually happened. It's where I will say "Look, three eyewitnessesheard this statement and that's why I believe that either accused is tellingthe truth" or "The complainant is telling the truth."
There's no magic art to this. I think the goal is to make ascrystal clear as possible what's being alleged, what the response is and otherfactual findings you've made and then we're going to get to the conclusion butthey should be separate. I also recommend including a chronology of events ifyou think it would be helpful especially if these are allegations that wentover a long period of time and to highlight any factual discrepancies at thispart of this process.
When I have done reports where I summarized each interviewone at a time, I have gotten feedback that having an executive summary on topof all the interviews have been helpful as well. You have to be careful thoughbecause you want to make sure you're not cutting it too short and make it clearit's just a summary because reading through all of the investigation first justsort of thought wise is not how people think. They don't want to know whateverybody said individually. They want to know what was alleged and what youfound.
Joe: One of our customers is the West Virginia FraudCommission and they do investigations that will have hundreds of interviews andthousands of pages of documentation. Similar to you, they go with aninvestigation report that's all in so you don't need to go and reference otherdocuments.
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 everyinterview but in the actual meat of the report is just sort of bullet pointslike "When we interviewed Joe here were the three takeaways, the threeinconsistencies or the three things that were sort of material." Insteadof having to read the 100 pages of interview notes you can just sort of getthose 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 elseis "Was there a violation of company policies, guidelines, standardoperating 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 investigators not sure so they don't answer the question. We're going to talk about whatto 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 reportcan't really rely on it if you give conclusions but no explanations of how yougot there. Trust me if you're ever on the stand one day you're going to beexpected to articulate why you decided what you did so put it in the report. Ifthere are any issues that can't be resolved during the investigation, say soand explain why. I'm not a big fan of sort of ignoring the elephant in the roomin a report.
Just to be sensitive to time I'm going to go a little bitquickly through documenting credibility decisions. In most cases you'll havesome corroborative evidence that you can cite in your report as to why who youthought was telling the truth or whether you thought there was a violation ornot but if you're making a credibility decision which is very frequent inemployment discrimination cases because often there's stuff said between twopeople in a room and nobody else was there, explain the basis of why youthought one side was more likely to have happened or have been said than theother.
If you absolutely can't make a credibility call, I do ecommend 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 isan example I've given of how you can actually say "I can't make acredibility call." I know i-Sight (now Case IQ) already has a webinar ondetermining credibility so I'm going to move on from this.
Recommendations for corrective action in the next piece ofthe report but before you even get to this stage you really need to determineif this is supposed to be part of the investigator's responsibility becausesometimes it is in certain organizations but not in others. You really need tounderstand expectations before including any recommendations for correctiveaction in a report as this can create potential liability if a company choosesnot to follow the recommendations for any reason.
To Joe's point, this is an area where you might need to havea verbal conversation before putting pen to paper. If it is part of yourresponsibility, determine if corrective action is required first. If there's noviolation, there's no corrective action needed. If there is a violation, as Imentioned earlier, whatever remedy the company puts into place has to bedesigned to prevent future occurrences of similar conduct [inaudible 00:31:00].
In most of my investigations I am asked "Are therechanges 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 reportbecause 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 looklike the investigation took a really long time.
One of my clients puts a little covered memo on topof the investigation report saying "This is the corrective action thatwas implemented on ________" and that becomes part of the final record. Ithink we're ready for the next poll question, Joe.
Joe: Okay. I'll need to pull that one up. This onesays "How confident are you that your workplace investigation reportswould survive judicial scrutiny?" This will be an interesting one. I'mjust going to take two minutes. We've had a bunch of questions come in. Acouple of them are sort of grouped together then we'll get your take on whatpeople are showing at the poll. It was around the interview process. A couplepeople asked "What do you think about taping interviews?" Another oneasked 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 videotapeinterviews. There have been times when I've had a second person sit in on theinterview for a couple of different reasons. Sometimes it's for note taking andsometimes it's to watch. When you're taking notes and asking questions youoften miss body language, tenor and tone. I think if you have the resourcesit's a good practice sometimes to have somebody with you.
I think taping or videotaping depends on what resources youhave available and it depends on the seriousness of the allegations. Sometimesthese are major government fraud investigations. I'm making a broadgeneralization here but employment matters are generally bet-the-company kindsof matters in most cases and there are lots of investigations that are. I thinkthat as part of the planning for the investigation you really need to thinkthrough strategically whether taping or videotaping would be useful.
There have been investigations I did where there was a hugelayoff that was about to happen and we were going to lose lots of peopleinterviewed. My guess is that it would be hard to get them back and we knewlitigation was going to happen. We knew we were going to get sued and in thatcase we did decide to videotape but you have to be careful because it also doesratchet up a sort of scare factor.
Joe: I was going to say it reminds me of what we weretalking about earlier until we just put in another question about signing thestatements. Context is everything. Like you said before, I think whether you'remaking them sign a formal statement, audio or videotaping it has the sameeffect of sort of freaking people out and putting them on guard. There's a timefor everything.
I'm just looking at our poll results. Just about everybodyhas voted now so I'll close out the poll but it looks like about 25% areextremely confident that they'll survive judicial scrutiny and 63% are somewhatconfident. 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 moveon to drafting pitfalls. This is the single biggest drafting pitfall that I'veseen in investigational reports and here are two samples. I anonymized them butthese came right out of reports. The first one is a statement that says"While the manager's conduct was not discriminatory based on sexualorientation his behavior created an environment that was hostile and unwelcomein the workplace, particularly for the employee who's gay." The second oneis "The manager discriminated against the employee because of herpregnancy."
These really raise two critical problems if you putstatements like these into investigational reports. Your job as an investigatorin most investigations is to make findings that relate to policy notconclusions of law so when you say the manager discriminated or the manager didnot discriminate, you are making a conclusion of the law not a conclusion as towhether a violation of a policy or a rule has happened and only a judge or ajury decides whether there has been a violation of law and then only if a lawsuitis filed.
This may sound like semantics to you but it's reallyimportant from a litigation perspective because plaintiffs' attorneys will lookat 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 outwhether 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 tothe second one-is your job is to make a finding of fact and provide the factsthat support the conclusion reached so even if you were to say "Suzie Q.violated the discrimination policy, period," that's an okay sentence aslong as it's after a long list of facts that got you there. I'm not going toread this next slide out to you because you have it but here's a rewrite ofwhat I'm talking about. You list out all the facts that support your conclusionthat 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 isnot just about professionalism. It's about your credibility as an investigatorbecause I have seen plaintiffs' attorneys use these kinds of mistakes inreports to question your credibility. What they do is raise a question as to aninvestigator who might be careless in the drafting of the report might alsohave been careless in conducting the investigation. It may not be true but it'swhat is doubted. They'll raise that kind of a question. I just want to call outa couple of these that are important.
The first one is quotations. Be very careful about puttinganything 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 peoplehave made to me in interviews. It can come back to haunt you. It's highlyunusual you ever get it exactly right and then they can question yourcredibility and ask "Why did you say it this way? Did you say it this wayto 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 . . ." andthen I don't use quotations. When it's a critical statement I have gone backand re-interviewed someone and said "Can you tell me again what you saidduring this meeting?" Then I've got two sets of notes about what commentthey made. If it's different than what they said the first time I might askthem about it and say "Well last time we met you said ________. Is it thatyou just don't recall exactly what was said in the meeting?" It will giveyou a better opportunity to get it right.
Abbreviations: Lots of organizations have internalabbreviations. Make sure that you at least spell them out once. Keep in mindwhat we talked about earlier, that an external party needs to understand it andin many organizations those abbreviations of departments and divisions changeall the time anyway.
Be consistent in your tenses. Use first person or thirdperson but don't go all over the place.
Tone is critical in these reports. You really want to avoidemotional and judgmental or even value-laden words to describe events.
You need to set the right level of formality in thesereports because you might be questioned about it later. I have one quick noteon redundancy. To make the report as tight as possible, try to eliminateredundancy. An example of this is if you have three eyewitnesses that wereinterviewed who confirmed a particular statement was made, rather than listingit out three separate times I just will say "Three eyewitnesses confirmed________ statement" and name them if you need to. It's about pullingthings that are common in the report together and bucketing them.
We could spend an entire day talking about privilege but I'mnot going to do that. I'm only going to spend a minute or two. You do need tounderstand the basics of privilege if you're the one drafting the report andwhether or not the investigation was being conducted at the direction ofcounsel and/or under attorney/client privilege. If so, don't forget to includethis language on the written report.
It doesn't count if you're just rubber stamping 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 termsof 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 thereport. I talked earlier about how it's in your best interest to show that youlooked into things. That being said, you want to try and preserve your controlover 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-houselawyers as investigators and being advice givers for the company and how thatplays out in a waiver context. If there's interest in that we can talk about itmore at the end but since most of you have HR conducting your investigationsI'm just going to say it's a watch-out area and it can get outside counsel oreven in-house counsel into the hot seat if they've done both. Maybe that's apitch for having external investigators. Most of my referrals for investigationsdo come from company's outside counsel because their outside counsel doesn'twant to risk being conflicted out of a subsequent lawsuit because they did boththe investigation and providing of legal advice.
I recommend you keep the document in draft format until it'sready to be finalized. I have a draft watermark on every page so I don'tforget. It just automatically pops up. You should label each version of a draftsequentially. You want to make sure if you're ever called to the table later onand you have to explain all of the different drafts, you have a good cleanrecord of which one you wrote and when. Joe, we've got the next poll question.
Joe: Yeah, we're getting out of time obviouslybecause of the phone issue we had but I've got a question that seems to fitgreat here from Rhonda Green. She was just asking about interview notes and ingeneral your investigation notes as you're going through and whether or notthose are privileged or do you have to do something special with them to makethem privileged? I'll let you chew on that while I launch the next poll.
Our last poll is, "Does your organization have a policyor conduct training on investigations including how to complete investigationreports?" Maybe some of you have been through internal training on thisvery topic. I'll wait for us to fill that out. Xan, do you have any thoughts oninvestigation or interview notes related to privilege?
Xan: Yes. In many cases the courts are coming outdifferently on this but I'll give you my quick two cents on it. You can haveprivilege within an organization that applies to communications between anindividual such as an investigator and an attorney if the communication theindividual made was at the direction either of their superiors or of the lawyerto 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 helpsan 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 legalrisk and advice the lawyer needs to give back to the company.
That's sort of my two cents on interview notes but trust methere's lots of haggling over which pieces of investigation reports arediscoverable and which are not. What I recommend you do because obviouslytoday's discussion is not providing legal advice, is talk it through with yourlawyer first.
Joe: We see the same thing. Obviously providinginvestigation software there's a lot of sensitive stuff that goes in there andwe really see the whole gamut in terms of some clients that want to be able totag a whole case as attorney/client privilege and others that have particularitems as they add a note or add a piece of evidence and they want to be able totag it as such. There doesn't seem to be one golden rule.
To close out the poll it looks like 38% of the people inattendance today have been through some kind of training in their ownorganization while 57% say no. I think that would be consistent with what wesee too. A lot of HR people get tagged with this responsibility to goinvestigate something but they've never really been trained on how to do thator what the output of that should be. I think often times it's pretty tightlycorrelated 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 minutesover just to get through it. There are a few more questions I'd like to ask soif people need to leave they can but maybe we'll run five or 10 minutes late toget through it.
Xan: Okay. The next topic is on retention ofinvestigation 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 recommendyou retain all investigative material-everything-notes, drafts, chronology andeverything and you keep it in a confidential location which does not mean theirpersonnel file.
You should keep in mind that there are certain states-I knowIllinois is one of them-that require employers to keep certain documentationrelated to discipline, probation or termination in employee personnel files.That does not mean you should put the investigation report into the file. Youcan, but since in certain circumstances you have to keep documentation ofdisciplinary action that might result from an investigation in the file I'drecommend the same kind of cover memo saying, "We took ________ action asrelated to report. The report is in the employee relation file; see employeerelation file," or something like that so that not everything is in thepersonnel 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 issuesoccur 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 canbe 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 ruleis about two years following the relevant employee's departure from the companyhowever if you are in anticipation of litigation either because you got aformal complaint or sometimes even if it's just a verbal threat from anemployee, you have to preserve everything even if the company has a documentdestruction policy until you're notified otherwise, usually by the lawdepartment. When in doubt I say keep everything including investigation notes.
Joe: That's an interesting one I would just clarifywith you because with the webinars we've done and obviously with customers itseems like this is another one where there are a lot of opinions and there'sactually a question that came in. Kelly Berwood asked, "Should we destroyall the previous drafts of the investigation reports once we've got that finalcopy?" It's the same thing with interview notes. I've had conflictingideas on whether or not you should retain all of that stuff or once you've gotyour final report all else can go to the bonfire. It sounds like what you'resaying is that when in doubt-or maybe not even when in doubt-just don't destroyanything.
Xan: I think you're right, Joe. There are lots ofdifferent perspectives on this. I think the one thing everyone agrees on is ifyou are on notice that there is a claim, keep whatever you have that day.
Joe: How do you define "on notice?" Let'ssay I call the whistleblower line or I call my HR manager and say "I thinkmy boss is stealing money." Is the original complaint or tip or referralwhen you're on notice?
Xan: I wish there was a clear answer for "Whatdoes reasonably anticipate litigation" mean? [Inaudible 00:49:57] decidingon it and there isn't. The practice we've used is that if an employee threatensa lawsuit or they say they have a lawyer or they're [inaudible 00:50:10] alawsuit . . . . It's easy to know if you've already gotten the charge or thelawsuit 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.
Xan: Yes.
Joe: In that case the examples I gave don'tnecessarily trigger the retention of everything. I could complain about my bossstealing money and it may or may not go to court.
Xan: Arguably you are not in anticipation oflitigation at that stage but once you are keep everything. I know there's a lotof discussion about "Assuming you are not in anticipation of litigationshould you keep all the drafts of a report?" People come out in differentways. Some people say "Once the final is final get rid of all yourdrafts." I keep all of my drafts because sometimes there are reasons forwhy I've made . . . . That means I might have to produce all of my drafts but Iknow why I made changes in my drafts and I usually do not talk to the decisionmaker 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 andmade changes under pressure to make it look a little different," so youneed to be careful of that. I don't necessarily think it's a reason to get ridof all your drafts. I do know there are people who advise otherwise but Ipersonally keep my drafts. I'm also an external investigator at this point so Idon't report to anybody in the company. They pay my bills regardless of what Isay so I'm less concerned about drafts or being pressured by management tochange things because I don't report to them. They may not hire me again butI'm about as objective as they get because I don't have to go back to theorganization the next day.
Here's the last slide before the template of what a reportcould look like. This is about "Now you've got the report. What do you dowith it?" The first step is as it's still in draft see whether it needslegal review prior to finalizing it. That can be important because legalcounsel can point out legal issues that might need to be more fleshed out byyou as an investigator.
They also can help determine if certain facts meet legalstandards, which is their job not the investigator's job. They also can helpidentify what forms of corrective action might be legally appropriate or bemore familiar with past practices in that organization because generallyspeaking, remedies should be consistent with past practices in similarsituations because if they're not, that in and of itself could give rise toclaim. For instance, "Why did you fire all of the women but you didn't firethe guys when they stole money?"
One of the things to talk about as a lawyer as we mentionedearlier is resolving any privilege issues particularly with respect todistribution 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 lawyerdecides who else it goes to? Those are complicated privilege issues.
I do give a verbal summary update on what I found beforeproviding a written report. As an external investigator it's helpful because itgets the juices flowing on what they want to do and it helps me finalize thereport and it doesn't shock them when they get it if it's got really bad newsin it so it already sort of plants that seed.
Do not ever give the complaint to the complainant or accusedunless required by some law. I know internationally that it's required incertain circumstances but not in the US. No matter how much they say or demandthat they get the report, I do not give them the report and no company I'maware of hands the report over. It really depends on the circumstances but Ihave seen a short, written write-up or a verbal write-up [00:53:56] on what thefindings were but not the actual report. It can be strategic on how much detailyou provide them.
We just talked about keeping drafts. If you keep yourdrafts, make sure that the draft is not what goes when you get subpoenaed or agovernment agency asks to see it. Inadvertently once I saw a draft go to theEEOC and it launched this huge discussion about "Why is it a draft? Whereis 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 isreally important, particularly for protecting companies from retaliation claimsafter an investigation is concluded, especially, I found, if there's no findingof any violation.
For example, if the complainant is a current employee andthe investigation is done, they can claim that future negative things thatmight happen to them such as a bad performance review or not getting promotedwere being done in retaliation for having filed the earlier complaint. If acompany can keep knowledge of the complaint from future decision makers aboutthe 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 employeeis complaining about their manager and then it's still their same manager andthe manager knows that there was a complaint, but in certain situations keepingit on a need-to-know basis is important. People like to gossip about a lot ofthis stuff. It's really critical to keep it as contained as possible becauseyou don't want to affect reputations especially if there were no violationsthat have been found.
If your report is detailed, it often contains eyewitnessstatements that could be sensitive or critical of the company. Keep in mindthat individuals who participate in an investigation by being interviewed arealso protected under the retaliation law.
This is sort of a quick format that I personally use. Youcan see that it's very formal. Your report doesn't have to be this formal butthis is how I do it. I have found that you thank yourself down the line if youtake as much time as you have to make it as professional as possible becausethe form itself adds credibility.
The version I'm looking at has a cc to the employeepersonnel file and as I mentioned earlier, I do not have these reports put inpersonnel 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 tocontinue on and answer whatever questions Joe or any of the other participantshave. That's what I've got on writing an investigative report.
Joe: That was great, Xan. I think one other thingI'll add that maybe we'll fire out in the email we send out that has a link tothe recording is that we actually have an investigational report template aswell that people can sort of use as a starting point. It's exactly what you'vegot here with just a bit more meat on it with sample interview notes and thingslike 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. Ifany other questions come in maybe we'll follow up by email and give you achance 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. Thisis not really staying on target for today but the idea is if a complaint hasbeen made before you investigate, how do you decide if it's credible or if weshould be investigating this or not?
Xan: My practice has been to not even call it aninvestigation unless you have to. I think if an employee raises a concern thecompany should look into it. Now looking into it can be one conversation or itcould be a year-long investigation or everything in between. By the way, theydon't have to use the magic words that they've been discriminated against. Ifyou're not sure what they mean, I often have HR put the policy in front of themand say "Is this what you're talking about? Because if it is it's very seriousand we're going to need to look into this." Often employees say "Idon't really know why I'm being treated this way."
Even if it isn't a formal investigation complaint that comesin and an employee is really having trouble with somebody in the workplace, itmay not need what we've been talking about today-a full-blown investigation anda 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 aconcern doesn't always mean it has to be an investigation and a report but itdoes mean it's something you should look into and I think it really depends onthe circumstances how deep of a dive you go.
There are clearly ways of finding out if what they'retalking about is a violation of company policy or the law or SOTs and I'm a bigfan of being transparent and just asking them. Sometimes you might run into anemployee who says "Yeah. That is what I'm talking about" and then youask them why they think that and ask them for details. You don't back off of itbut you also at least have a conversation. Employers can get into a lot of hotwater 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'severything 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 ifit'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'tgood 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 goodeither. [Inaudible 01:00:07]
We have one last question before we go. Somebody was askingabout document retention. I know you mentioned this briefly as you werepresenting but maybe we can talk about that again. Maybe in the circumstancethat there is or is not going to be litigation, how long should we keep ournotes and our report for and how can we retain that information?
Xan: Joe I think it's very clear. If you know you'rein anticipation of litigation--if you're not sure ask your legal counsel andthey will help you determine if you are or not in anticipation oflitigation-keep everything. They will talk to you about how to do that. Smallorganizations don't always have this but large organizations have cleardocument-retention policies. They issue statements saying "Don't deleteanything." They can also go behind the scenes and grab all of yourcomputer records so whether you delete it or not they've got it.
In anticipation of litigation, keep everything. I mean eventhe scraps of paper that you might have written down the date that you weregoing to be interviewing somebody. Just keep it all. It's just not worth theheadache to be questioned about it down the line why you might have thrown awaythat piece of paper.
If you're not in anticipation of litigation, most companieshave document-retention policies and those take into account a number oflaws-employment laws and otherwise-that tell you how long to keep things.
Joe: Are some of those industry specific, Xan? Idon't know this stuff off the top of my head but we have a lot of clients inthe banking and insurance sector and I feel like most of them keep their casefiles and reports in their system for seven years and then in other industriesit's not that long. Do you know if there's any sort of industry-specific lawsor guidelines?
Xan: I'm sure there are. I don't know the details. I knowat my former employer we used the seven-year from termination rule because wedid a whole survey of different laws and said "Some laws have two yearsand some laws have six years. It's a statute of limitation that you look at sothat if you were to get sued, you could be sued in six years so you want tokeep the records for six years." That's often where the retention comesfrom. It's from the statute of limitation [inaudible 01:02:35] so we did aseven-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 wasnot throwing out documents. It was that we didn't have people to clean out thestuff.
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 havea retention policy and what it is. I don't mean to punt on this answer but Idon'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 regulationbut 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 everytime? 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 reportevery time. Does it have to look like this report and be this detailed? No. Ihave 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 guyswere punching each other and there was one eyewitness. She interviewed the twoguys 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 Iinterviewed 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 youdidn'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 aboutour 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.
