Employment Law

In previous posts about sexual harassment investigations, I discuss how to select an investigator, define the scope of the investigation, and conduct interviews. In this last installment, I’ll look at how to prepare a report for the decision-makers.

When the investigator completes a sexual harassment investigation, s/he should prepare a report for the decision-makers. The investigator must understand who is likely to see the report because that may impact what is appropriate to include in the report. If the investigator is an attorney representing the employer, the investigator should resolve privilege issues as part of that process. The investigator, after discussing the matter with the employer, should clarify in the report who may have access, and under what conditions.

What the Report Should Include

The investigator’s goal is to help the employer make informed decisions. After gathering information in an impartial manner, the investigator must effectively communicate that information to the decision-makers. Some tips follow:

• Remind the decision-makers of the scope of the investigation. For example: “I was asked to…”
• Identify who was interviewed. For example: “I spoke with the following individuals…”
• Identify documents reviewed. For example: “I reviewed the following…”
• Summarize the facts. Consider addressing the events in chronological order. The level of detail depends on who is likely to see the report. In many contexts, the summary does not have to attribute specific statements to specific employees. Failing to disclose who said what can reduce the risk of retaliation.
• Identify issues that arose during the investigation that fell outside the investigation’s scope.
• If the investigator is an attorney representing the employer, consider preparing two reports: one that summarizes facts, and a second that includes the attorney’s legal analysis and advice/recommendations. It might be possible to disclose the former without being required to disclose the latter.

Other Documentation

Keep in mind that the report described above might differ from the investigator’s complete file. For example, depending on the circumstances, the investigator might omit the following from the report to decision-makers, but should still document the information in the investigator’s files in case it is needed in litigation:

• The investigator confirmed his or her role for the interviewee. A generic example for attorney investigators, which likely would be amended depending on context, follows: “At the beginning of each interview, I informed each interviewee: (1) I am a lawyer; (2) I represent [Employer]; (3) I don’t represent you; (4) I can disclose anything you tell me to [Employer]; (5) the purpose of this interview is to investigate reports about [Issue] to assist me in giving legal advice to [Employer]; (6) Although I do not represent you, this interview is covered by the attorney-client privilege due to my attorney-client relationship with [Employer], so please keep the things that we say to each other today and during any follow-up communications that we may have about this matter confidential; and (7) [Employer] will not retaliate against you for saying anything unfavorable about [Employer] during this interview; but that does not mean you have immunity for any violation of [Employer] policy or law that you may have already committed, if any.”
• The date, time, and location of the interviews, as well as the identity of those present.
• What each interviewee said. As mentioned above, investigators should decide based on context whether to include that level of detail in reports to the decision-makers.
• Chain of custody. This may be especially important with regard to emails or other electronic communications.

Keep in mind that, if the investigator is not an attorney and is not working under the direction of an attorney, the investigator’s notes and other “work product” may have to be disclosed in litigation even if those notes are not part of the report to decision-makers.

Keeping Files

The investigator and/or employer, as applicable to the circumstances, should consider keeping notes and other documentation in a confidential investigation file separate from the personnel files of the person who made the report and the person accused of wrongdoing. If the investigator is an attorney or working at the direction of an attorney, they should maintain items covered by the attorney-client or attorney work product privileges in a separate privilege file, preferably at the attorney’s office. The investigator and employer should limit access to the investigation files to those who need to know the information.

(This post is not legal advice. Consider consulting with a lawyer about specific situations.)