Businesses do not win lawsuits. No cost-conscious CEO has ever emerged from litigation with a profound feeling the process was a success. Even the tough and stubborn business leader who stands on principle and spares no expense for a victory ultimately admits the real lesson learned is that the only person who won was the lawyer. The drain on valuable resources, the misdirected attention from important business goals, and the direct expense for fees and litigation costs combine to produce the inevitable conclusion that this simply cannot happen again.

Most messy and complex employment lawsuits begin the same way. An employee makes a complaint about another employee’s behavior. That complaint may be clear and detailed, or it may be vague and generalized. The employee may comply with an anti-harassment policy’s reporting procedures and direct the complaint to Human Resources, or the employee may make a casual comment to a frontline leader with a fuzzy “but I don’t want to get anybody in trouble” appendix. The myriad ways an employee may make the company aware it now has a problem are virtually unlimited. In every variant, though, what matters most is the company’s response.

Investigations are an art rather than a science. No single way to conduct them exists. The possibilities are as limitless as the complaints themselves. The goal the company seeks to achieve through the investigatory process dictates the manner in which it should conduct it. Each investigation, though, must meet critical objectives and contain specific elements. Every company should prepare and train investigators to respond to every complaint timely and with consistency.

Why Do We Investigate?

First, before the company receives a complaint, HR leaders must educate senior leadership on the many reasons investigations are important. Investigations done well will solve problems well beyond the immediate issue. An effective investigation:

• Treats employees with respect, builds trust in the organization, and improves relationships;
• Demonstrates fairness and counters perceived favoritism;
• Certifies policies and procedures are consistent at all operational levels;
• Uncovers potential work environment issues or policy violations before they arise;
• Reaches a conclusion that provides factual details for leaders to make informed and correct decisions;
• Protects the business’s reputation from external criticism; and
• Avoids lawsuits and legal liability.

When Do We Investigate?

Some operational leaders push back on investigations as too burdensome and unnecessary. It is true, of course, that not every single issue triggers the need for an investigation. So before the company receives a complaint, HR and senior leadership must determine when it will conduct investigations. In most instances, investigations are necessary when:

• The issue involves repeated and patterned policy violations, especially when co-workers complain about an employee’s behavior;
• Allegations are made against supervisors that are (or may be) based on a protected characteristic or a perception that a supervisor is biased;
• Complaints or observations suggest general mistreatment that involves a protected characteristic;
• Complaints or observations appear to include mistreatment like name-calling, bullying, intimidation, threats, or similar unacceptable behaviors;
• The issue is about or could result in safety violations or workplace injuries; or
• Criminal misconduct (theft, misappropriation, fraud, etc.) is alleged.

The company may conclude an investigation is unnecessary in response to a complaint; no business has unlimited resources. If it does, it must establish a process to follow so it can defend the decision. A consistent protocol to justify the decision that an issue did not require formal investigation prevents second-guessing from lawyers and judges. The best practice is to establish and publish to the HR team guidelines for the determination in circumstances where:

• The matter is trivial or plainly frivolous, does not implicate work performance or protected characteristics, or contain bias allegations;
• HR already has clear and documented facts that are not in dispute and the only remaining determination is the appropriate remedy;
• The issue is a minor personal disagreement that simple mediation could resolve; or
• The complaint involves remote events that occurred years prior with no realistic chance the conduct could recur.

What Policies and Practices Support the Investigation?

Proper corporate structures are critical to the consistency that is the most important element in the investigatory process. At a minimum, every company should maintain:

• Handbook policies that govern the issues raised in any complaint;
• A formal complaint form that is signed, dated, or verified if electronic;
• A template form used for all statements from employees that contains specific time stamps to ensure accurate chronology is captured;
• An investigations exhibit list form that lists all documents reviewed in the investigation;
• A form to summarize the activities (employee interviews, document review, statement-gathering, third party interviews, etc.) in which the investigator engaged during the investigation;
• An investigatory report that all investigators use to maintain consistency in the format that facts and conclusions are captured; and
• Required documents for operations to use to create PIPs, provide counseling, discipline, and terminate.

A prompt response to a complaint is an essential element to the affirmative defense available to avoid liability in certain situations. And a delayed response impacts morale and trust even if the affirmative defense is not in play. But before the investigation begins, a few important considerations must be made:

• Who is the right investigator based on the issues raised?
  • Is more than one investigator necessary?
  • Is a third party investigator required?
• Are immediate responsive steps necessary?
  • Should the company place anyone on leave?
  • Is anyone in physical danger?
  • Should the company separate any employees pending investigation?
• What documents or other material (texts, videos, etc.) will the investigator need?
• Has this happened before, and what did we do?

How Do We Investigate?

The investigatory process itself is not that complicated. In most instances, an investigation’s success or failure comes down to execution. Trained investigators know how to conduct an effective interview, lock down details, and gather all relevant information. They may use different techniques, but skilled investigators will always:

• Emphasize truthfulness and inform the witness about the consequences if that obligation is not met;
• Discuss confidentiality and explain clearly that it cannot be guaranteed but it is required from all witnesses;
• Deliver a no-retaliation message;
• Use separate pages for notes on each witness;
• Avoid the temptation to assume facts or lead a witness; and
• Avoid confusing compound questions that yield ambiguous answers.

Similarly, once the interviews begin, the most experienced investigators will never question a witness without a plan and prepared questions. All investigations follow a different path so the investigator must be equipped to follow it, but an outline for questions creates consistency in the process. Before interviews start, an investigator should:

• Contact early in the process any third parties who may possess information;
• Determine an interview sequence;
• Estimate the interview length and consider the appropriate location; and
• Inform all managers whose staffing the interviews may affect and emphasize priority.

The complaining party interview is usually the first one conducted. This interview requires detailed questions and follow-ups and seeks all relevant witnesses and documents. It ferrets out whether anyone made prior reports about a similar issue or person and documents that no party made a prior report and the reason if this is the first report. The interview locks down all facts and relevant information and obtains a written statement unless the interviewer’s notes are sufficient.

The experienced investigator notes inconsistencies and documents whether the information the complaining party and witnesses provide is within their personal knowledge. If hearsay, it seeks the source and goes to it. As each interview concludes, the investigator should address again confidentiality and no-retaliation and consider whether a written statement is appropriate.

The interview with the accused is, of course, the most likely to produce complications. A skilled investigator will approach it with a few universal objectives in mind:

• Never judge the outcome before the interview based on the nature of the allegations or the history with the accused;
• Ask questions in the same order they were addressed with the complaining party and witnesses to provide a framework for comparison;
• Explore every inconsistency and confront on every allegation;
• Lock down all potential witnesses, facts, or alleged biases;
• Review and repeat the accused’s response to the allegations to give the accused an opportunity to correct any misunderstandings; and
• Determine whether to obtain a signed statement.

How Do We Conclude An Investigation?

The remaining investigator tasks are evaluation and documentation. In many instances, these are the most important elements in the investigatory process. It is also the most appropriate time to reach a tentative conclusion, create an outline for the report, and update operations on the status. An effective preliminary evaluation asks:

• Are there any other witnesses, documents, emails, video, etc.?
• Is this a thorough and complete investigation?
• What facts did I corroborate?
• What facts remain in dispute?
• Which witnesses were credible, and which were not?
• Does any witness have a bias against another?
• Do I need a privileged outside counsel review?

Finally, the investigation must yield a conclusive and clear report. Every report should be consistent with the notes that support it. At a minimum, every report should include:

• The issue that prompted the investigation;
• The witnesses interviewed and a summary that contains the information gathered or discovered from each witnesses;
• All evidence the investigator considered and each piece summarized;
• All known evidence the investigator did not review and why;
• A factual finding that is clear how it relates to the issue;
• Explanations of any abnormalities (unrelated issues, sequencing, delays); and
• A conclusion that may include a recommendation.

For obvious reasons, no report should ever recommend – or even suggest – actions the company does not then take. A bad investigatory report – or one that the company does not treat as the final authority on the issue that led to it – is worse than no investigation at all.

No investigation is perfect, but it is important to tie up any loose ends. It may be necessary to connect the conclusion to subsequent remedial actions. The company may call upon the investigator to make decisions about communication to interested parties and monitor future behaviors. Most importantly, though, the investigation must be closed and all parties must be advised that a decision has been made, even if that decision is that no action is appropriate.

It is the process as much as the outcome that prevents exposure. A company that hopes to use investigations to prevent disputes from escalation, build trust in employees, and avoid legal liability should recognize the value in trained and experienced investigators. Modern litigation is simply too expensive to treat as tolerable. The best companies prevent it with sound policies and aggressive investigations that give employees confidence they can trust the outcome and that litigation would merely waste their time too.