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Workplace investigations — Minnesota


Investigating employee complaints

Although it is best practice for employers to conduct investigations of employee complaints or accidents, Minnesota employers often conduct workplace investigations because of federal and state statutorily-imposed requirements.

Indeed, under various civil rights and whistleblower protection laws, such as Title VII of the Civil Rights Act or Dodd-Frank, as well as health and safety laws, it is either required or good practice for employers to investigate complaints or accidents and take appropriate action. Recent court cases reflect additional civil rights protections and investigative requirements in the context of employers that receive federal funds to provide educational programs or activities (i.e. medical residency programs). Further, the wave of national movements (e.g., #MeToo, #TimesUp) on sexual harassment and gender-based and racial discrimination has spurred increased reporting, leaving employers with the complex task of investigating word against word credibility-based claims of discrimination and harassment. This national political and cultural shift places a premium on reliable, informed and effective workplace investigations.

As a practical matter, after a written or oral complaint is made by an employee regarding improper conduct, an affirmative duty may arise requiring the employer to investigate the allegations. Even when no official complaint is made concerning improper conduct, an employer may be under a duty to investigate if the employer has constructive knowledge (reasonably should have known) of that conduct. 

As discussed in this chapter, investigation of complaints yields a number of practical benefits for employers.

Investigations are essential in promoting institutional values and health workplace culture

While the practical benefits of workplace investigations are often driven by legal compliance considerations, one essential benefit that an employer can derive from consistent application of policies and effective investigations is a commitment to the institutional values that promote a workplace environment that is healthy, safe and free from prohibited discrimination and harassment. Simply stated, showing humanity and care for the welfare of all employees is the key to effective employer responses. Compliance with civil rights laws and whistleblower policies should be the minimum expectation; implementing the company’s policies and conducting investigations in a manner that reflects the employer’s stated values goes much further in setting and reinforcing corporate culture and climate.

In the context of a workplace investigation, the manner in which the investigation is conducted will reflect institutional values. Attention to the details of implementation is vital, and the professionalism and nature of the interpersonal interactions with the investigator are as important as adherence to carefully considered policies. Effective implementation must incorporate a fluent understanding of not only the legal, but the practical, psychological and personal impacts of employer action or inaction. That holistic understanding should inform all steps of the investigative process from intake, interview practices, communication, documentation, and support during the process for all parties.

Defense to a legal claim of harassment/hostile environment

In addition to value of promoting institutional values of a workplace free from harassment or discrimination, prompt investigations into complaints of harassment or discrimination may later serve as an affirmative defense should there later be a legal claim, either as a result of a charge of discrimination with a local, state or federal agency or litigation. In other words, even if harassment or discrimination occurred, a strong anti-harassment, and anti-discrimination policy, a thorough investigation and prompt remedial efforts might allow the employer to avoid liability.

Generally, the plaintiff in a potential lawsuit against the employer must show that the employer knew or should have known about any harassment or discrimination which is the basis for the lawsuit. If the employer had a policy to redress complaints internally and the employee did not complain to the company through a variety of complaint mechanisms (e.g., via a complaint hotline, Human Resources, or to a member of management), the employee may not be entitled to pursue a claim. Likewise, if the employee complained and the employer promptly investigated and took the remedial action in response to the investigation findings, then the employer might have an affirmative defense to the harassment or discrimination complaint.

Limit liability for discrimination or quid pro quo sexual harassment

An investigation may also limit the employer’s liability exposure. Although a lack of employer knowledge and prompt action are not defenses to disparate treatment discrimination claims or quid pro quo (this for that) sexual harassment claims, a proper investigation can still limit employer liability. If the employer immediately investigates any claims of discrimination, it may stop the discrimination, and thus limit the amount of damages. Taking prompt action can be especially persuasive to a jury as a reason not to award punitive damages. Also, the employer may be able to limit the scope of the lawsuit to only those issues the employee raised during the internal investigation.

Limiting damages based on employee misconduct

In the course of conducting an investigation of an employee’s complaint, the employer may well uncover evidence of wrongdoing by the complainant. Although it is unlawful for an employer to retaliate against the complainant in most circumstances, it is not unlawful for the employer to act on the information it uncovers.

For example, assume the company has a uniformly applied policy of terminating employees who make material falsifications on their applications and, in the course of investigating a failure-to-promote claim, it learns the complainant made such a falsification. Under those circumstances, it may not be unlawful retaliation to terminate the complainant because the employer is merely applying its policy uniformly. The effect may be to substantially reduce any back pay claim because no back pay would be owed for the period after the employee was legitimately terminated.  

Care must be taken, however, to avoid a claim that the company went out of its way to investigate the complainant in reprisal for making the complaint. In addition, as part of an institutional commitment to encourage reporting of discrimination and harassment, the employer may choose to not pursue action against the complainant for the complainant's  own wrongdoing.

Limit claims relating to negligent retention

An employee who is harassed or discriminated against may bring claims alleging that the employer negligently retained someone that it knew or should have known engaged in harassment or discrimination. Such a claim would be strengthened if the plaintiff could show that the employer had received several complaints about the offender and failed to take prompt action, including by failing to investigate the complaints.

Therefore, an employer that has a policy and a practice of investigating every claim of harassment or discrimination is in the best position to defend a subsequent lawsuit for negligent retention if the prior investigations revealed the complaints were without merit. Alternatively, when faced with a complaint against an employee, an existing strong practice of investigating claims coupled with an absence of prior investigations involving the accused could reinforce the argument that the employer had no previous knowledge that a particular employee allegedly had a tendency to harass or discriminate. 

Finally, investigations are also beneficial for the employer generally because when a complaint is filed, the employer may be able to implement preventive measures that deter possible future transgressions.

Create a less litigious workforce

Generally, a proper investigation policy creates a less litigious workforce. Employees who have confidence the employer takes responsive action and investigates their complaints are often less likely to sue later. Many times, in the course of litigation, plaintiffs explain they would not be in court today if the employer had just treated them fairly after they raised their complaints.

Discover information about the complaint

Finally, an investigation is the employer’s first and most reliable source of information about the complainant’s allegations. Based on the investigation, the employer will be better able to make decisions about what disciplinary action should take place. Also, if a lawsuit ever arises out of the complaint, the investigation offers the employer some protection. The employer will also be in a better position to determine whether to offer to settle the case and whether to indemnify or offer legal representation to an individual manager or employee accused of harassment or discrimination.

Internal investigations

Preparation and planning

The goals of a good investigation should include to:

  • seek the truth
  • gather facts fairly and impartially
  • listen with an earnest intent to understand
  • learn, not assume
  • tend to the needs of the individual party or witness
  • search for corroboration where it should reasonably be expected to exist; to gather all relevant information
  • maintain professionalism and consistency in process and procedures.

The most effective investigations are those that follow thoughtful and informed policies, procedures and practices and are conducted by trained and experienced professionals. Given the many moving parts of a workplace investigation, advance consideration must be given to key elements of effective practice including:

  • clear communication about behavioral expectations and prohibited conduct
  • dissemination of accessible policies, procedures to all employees
  • communication of reporting options and support resources
  • consistent adherence to institutional policies
  • a multidisciplinary team or administrative response
  • centralized reporting and recordkeeping
  • the use of trained and experienced investigators free from actual bias or conflict of interest
  • consistent documentation
  • appropriate training for all employees, with separate training for managers and supervisors on how to respond when employees present complaints to them first.

Determining whether a complaint has been made

Any time an employee makes make an allegation of harassment or discrimination to the specified person in the employer’s harassment policy (usually the human resources manager or other senior management) or reports the harassment or discrimination to management, that employee should be regarded as having raised a complaint. However, what about a scenario where the employee makes a complaint to a supervisor but asks the supervisor not to take any action? Has a complaint been made? Can the employer afford not to act on the information even though the reporting employee asks the employer to refrain from doing so? These are not easy questions. Their answers in a legal sense may depend on the nature of the information reported and the identity of the person receiving the information. From a human resources perspective, however, it is never prudent to ignore any report of harassment, discrimination, or suspected retaliation.

In particular, managers must be trained and reminded to report any complaint of harassment, discrimination, or retaliation immediately to the correct person, no matter how minor it seems or how informally it was raised. Managers should also promptly report any harassment or discrimination that they observe. 

Managers should not investigate such complaints on their own unless they have been designated and properly trained to do so. Nor should they suppress information for fear that it will result in the termination of a valuable employee such as a star sales representative. It is important for managers (and everyone in the employer organization) to remember that in the long run, it will be better for the employer to find out the truth regarding such allegations, even if it is uncomfortable in the short run. It is valuable if all complaints are brought to a central forum, typically the human resources department, and that both informal and formal complaints are appropriately documented in order to ensure a consistent institutional response, track patterns and address climate and cultural concerns.

There is no one best way to conduct an investigation, although there are many ways to make mistakes. Given the complexity of these cases and the attendant legal impacts, it is always prudent to consult with counsel before embarking on an investigation, and as necessary, through the course of the investigation. The following summary illustrates common practices, but there is no one size fits all response. The key is to tailor the investigation to the context and circumstances, which can also involve considerations of privacy and cost effectiveness.

Receiving a complaint

When a complaint is made, a productive initial conversation with the complainant is often a critical first step in determining whether an official investigation may be necessary. Likewise, obtaining a complete and accurate statement regarding the complaint is essential to determine the extent of the investigation required. The following steps should be taken promptly in order to ensure that an investigation is effective.

  • Conduct an effective intake interview - An informed investigation will begin with an investigator trained in effective interviewing techniques. The gathering of good information starts with attention to location, time and needs of the complainant. The interviewer should be well versed in the law and company policy elements that may be at issue. The fact gathering should begin with prioritizing active listening with an earnest intent to hear and understand the complainant’s context and complaint. As part of the intake interview, the interviewer should seek to understand what occurred, when it occurred, what current concerns the complainant may have, and how the complainant may wish to proceed. Depending upon the information conveyed by the complainant during the intake interview, the interviewer may want to provide the complainant with copies of the relevant policies, discuss available supports, evaluate informal resolution and evaluate the formal investigatory process in light of the known information. Importantly, the interviewer should not make any promises to the complainant about what action the company will take in response to the complaint. The interviewer will also want to convey to the complainant that the company will keep the investigation as confidential as possible, but certain key individuals within the company must be provided information about the complaint so that the employer can take appropriate action. Finally, the interviewer should carefully document information gathered in the intake interview and follow up with a written communication to the complainant.
  • Consider whether the complaint implicates any external reporting obligations or warrants immediate steps to protect the safety of the complainant or the workplace - In some instances, the reported conduct may trigger institutional reporting obligations to child protective services, law enforcement authorities, or regulatory agencies. Intake interviewers should be trained in these legal requirements and consult with legal counsel to evaluate any reporting obligations. In addition, reported conduct that poses an immediate risk to the safety of any individual should be reported to law enforcement and appropriate safety precautions taken.
    • Instruct the complainant regarding the investigation - The complainant should be told that the complaint will be treated very seriously by the employer, and that it will be investigated. The complainant should be reminded that the employer's policy prohibits any retaliation against an employee who makes a good faith complaint. Often, it is good to put this reminder in writing. The complainant should be advised to contact the investigator immediately if the complainant feels that any retaliation is occurring. Under some circumstances, the employee delivering the complaint should be told not to discuss the matter with others so that such conversations do not impede the effectiveness of the investigation. Finally, the complainant should be told that the investigation will be treated confidentially to the extent possible, but that the investigator might need to discuss the matter with those necessary to the investigation or affected as a result of the investigation.
      Careful consideration should be given before instructing a complainant, a witness, or even the accused to keep confidential the subject of the matter under investigation. Employees have the right to engage in concerted activity for mutual aid and protection under the National Labor Relations Act (NLRA), whether they belong to a union or not. Strict rules imposing confidentiality may coerce employees in the exercise of these rights by dissuading them from reporting offensive conduct to their union representative or banding together with other employees to oppose a practice that is arguably unlawful. On the other hand, maintaining confidentiality during the course of an investigation may be important in getting at the truth. In addition, reports by some employees could be legally privileged by the attorney-client privilege or the attorney work product doctrine. Because this privilege belongs to the employer and not the employee, the employee is not free to waive the privilege by disclosing what was discussed with a company investigator, provided that investigator is an attorney or operating under the directions of an attorney.
    • Have the complaint reduced to writing either by having the complainant write out a signed and dated complaint or by providing a written summary for the complainant to review - This is good practice, but even if the complainant fails to put the complaint in writing, it should still be investigated. It is best if the complaint indicates:
      • Who harassed/discriminated against the complainant? (Include the name and work relationship to complainant.)
      • What did that person do? (Include specific statements detailing the improper conduct that is the subject of the complaint and any reasons that the complainant may believe initiated the conduct.)
      • Where and when did the conduct take place? (Include the first time, each subsequent time, and the last time the conduct took place.)
      • How did the complainant respond? (Did the complainant indicate the conduct was objectionable?  Did anyone else?  How did the offending party react?)
      • Were there any witnesses to the harassment/discrimination? (Have the complainant identify the witnesses’ names and what the witnesses may have seen or heard, and ask the complainant whether the complainant told anyone about the improper conduct.)
      • Are there any documents concerning the harassment/discrimination? Did the complainant keep a diary or notes? Was there any email exchanged with anyone relating to the events that make up the basis of the complaint? (Have the complainant identify the documents, witnesses’ names, and what the witnesses may have seen or heard – and ask the complainant whether the complainant told anyone about the improper conduct.)
    • Take detailed notes of the conversation with the complainant - Include the name of the interviewer, date, time and location of the interview, who was present, and length of the interview. This document may become an important piece of evidence in the event that the complainant or the alleged wrongdoer sues the employer. It is important that the interviewer document only the facts as stated by the complainant and not the interviewer's own opinions or conclusions about the interview.
    • Consider whether to ask the complainant what complainant wants - Asking the complainant about the complainant’s desired outcome may set the stage for disappointment and limit the investigator's field of vision. At this stage, there is no need to set  expectations. On the other hand, the requested relief may be very minor such as an apology or a minor form of accommodation. Knowing what is at stake from the complainant’s viewpoint may help the investigator assess credibility or allocate appropriate resources to the investigation. An appropriate way to access that information is to ask the complainant "how do you feel the company can help?" This is important information to gather and will assist the investigator and the employer in fact gathering and fashioning appropriate resolutions. It is also relevant to determine whether a formal investigation is warranted or required, or if an alternative form of resolution may be appropriate based on the nature and circumstances of the reported conduct.
    • Do not make promises or offer opinions
      • Do not promise complete confidentiality.
      • Do not promise that the alleged wrongdoer will not come to know of the complaint.
      • Do not promise to keep the complainant’s identity from the alleged wrongdoer.
      • Do not tell the complainant whether you believe the complaint.
      • Do not promise that the alleged wrongdoer will be disciplined.
    • Do not discipline the complainant for reporting the complaint - Even if the complainant has complained to the wrong person or gone “outside the chain of command,” do not indicate that making the complaint could result in any sort of discipline for the complainant. This may be considered retaliation. If the complaint was made in bad faith without any reasonable basis, the law might permit the complaining employee to be disciplined, but such cases are exceedingly rare.
    • Consider having a witness present for each interview. Consider allowing the complainant to have a witness present for the interview if this is requested. If the complainant is represented by a union and requests union representation, the employer must permit the complainant to be accompanied by a union representative before the employer conducts an investigatory interview of the complainant if the interview could lead to disciplinary action for the person being interviewed. This does not give the complainant the right to choose a particular union representative and does not authorize the employee to substantially delay the interview.

Identifying an investigator

Determining whether to engage an internal or external investigator is a very important decision with many potential legal ramifications. The chosen investigator must be well-trained and impartial. A wrongly chosen or biased investigator may discourage candid interviews or even the reporting of illegal conduct. An employer should choose an investigator who is experienced, properly trained, and objective. Generally, an employer should have several qualified and trained investigators within the company, and may engage more than one investigator in any one investigation.

Many courts have held that whatever the employer does to investigate a claim of discrimination or harassment may be admissible in a lawsuit. Therefore, the written materials may be obtained by the complainant, and the person who conducted the investigation may be called upon to testify. If the investigation is conducted at the request or recommendation of an attorney, the employer may be able to make an initial argument that the investigation is protected by the work product doctrine or the attorney-client privilege.

However, if the employer intends to rely upon the investigation as an affirmative defense, courts will generally not give this argument much merit. If the company reaches out to its regular outside attorney to conduct the investigation, it must consider that the attorney could be called to testify and may, not be available to represent the company in any subsequent lawsuit. In addition, if there is a concurrent law enforcement or regulatory investigation, the investigation records may be subpoenaed, the subject of a search warrant, requested by court order, or requested by a regulatory agency. 

There are several potential investigators available to the employer:

  • Human resources representative - One choice is the employer’s human resources representative. The HR representative should be trained regarding proper procedure and can be impartial, thereby obtaining more accurate testimony from witnesses. The HR representative will normally bring a detailed knowledge of the employer’s policies and procedures, thus shortening the time and reducing the cost of an investigation. However, if the employer uses an HR representative, the work will be discoverable.
  • In-house or outside attorney - Another choice is an in-house attorney or outside attorney. Either one can be properly trained regarding procedure, impartial, more familiar with legal ramifications, and can better handle accusations against high-level managers. However, even if the investigation is conducted by an attorney, the investigative notes may not be protected by the work product doctrine or the attorney-client privilege, particularly if the employer attempts to use the investigation as a defense (as commonly occurs in a hostile environment claim).

Initial discussion with the alleged wrongdoer

It is advisable to have two people interview the alleged wrongdoer in order to ensure that there is a witness to the discussion and, specifically, to any remarks the alleged wrongdoer may make. If the alleged wrongdoer is a member of a collective bargaining unit, then the alleged wrongdoer is entitled to have a union representative present during any interviews or investigations. However, in most instances, the employer does not have to offer the alleged wrongdoer representation unless requested.

The initial interview of an alleged wrongdoer is a critical part of the investigation. The investigator should reiterate that the employer takes the allegations of every complaint seriously by fully investigating them consistently with its policy. The interviewer should inform the alleged wrongdoer of the allegations made and review relevant employer policies with him or her. In addition, the alleged wrongdoer may be told there is a possibility of disciplinary action if the complaint is found to be true, but that the employer will provide an opportunity to respond to all allegations and that the employer has not yet determined whether any violation of company policy has occurred.

It is usually best to instruct the alleged wrongdoer to minimize contact with the complainant immediately, and to inform the alleged wrongdoer that they may be separated during the investigation. The alleged wrongdoer should be given a strict warning not to retaliate against the complainant and, when appropriate, instructed to keep the matter confidential in order to respect privacy concerns, prevent rumors, and protect the integrity of the interview process. Finally, the alleged wrongdoer should be advised that any violation of these instructions will be considered as possible grounds for disciplinary action up to termination. It is usually best to incorporate all of these instructions and warnings in a confidential letter or memo to the accused. 

Identifying witnesses and relevant documents

It is normally important to interview all individuals involved with the complaint, including all witnesses identified by both the complaining employee and the accused wrongdoer. Employers also should consider interviewing all employees who work closely with the accused. However, care needs to be taken when interviewing nonemployee witnesses, as they are less likely to keep the matter private and may be less reliable. Schedule meetings at a time and place so that they will not attract attention. The investigator should explain the need for confidentiality to the witnesses, and ask questions designed to discover the "who, what, when, where and how" of the situation. The investigator should also document all interviews, keeping in mind that the investigative notes or other documents may become evidence in a future lawsuit, and be careful not to make unsubstantiated allegations or assessments. The investigator must be sure to talk to both the accused and the complainant. If the investigation lasts more than two to three days, the investigator should follow up with the complainant and keep the complainant  informed of progress – reassuring the complainant   that the employer is looking into the matter.

Next, collect any relevant files, documents, or statistics that may help verify or disprove the allegations. In a sexual harassment case, for instance, review any notes, calendars, and diary entries maintained by the complainant, including correspondence and emails between the complainant and the accused, or the complainant’s friends or supervisors. The employer should also acquire the personnel file of the complainant and the accused, desk files maintained by the supervisor of the accused, and investigation or discipline files for other individuals accused of similar conduct.

In a disparate treatment case, the employer will need to identify employees who are “similarly situated” with respect to the complainant. Obtain and review relevant files or records regarding these similarly-situated employees. Generally, the complainant will identify several individuals outside of the protected classification who are believed to have been treated better. The employer should then pull the files of those individuals, as well as employees whom the complainant’s supervisors feel are similarly situated with respect to the complainant. Files the employer may need to review in this regard include:

  • personnel files
  • payroll or compensation files or records
  • hiring, promotion or transfer records
  • evaluation forms
  • reduction in force plans or termination statistics.

Employer rules, policies, procedures, and instructions should also be reviewed in most investigations.

Finally, it is essential all electronic files that are or even may become relevant must be reviewed and saved. IT personnel should be immediately alerted to save any and all relevant documents and to ensure that relevant documents are not destroyed either intentionally or inadvertently in accordance with a routine record retention policy.

Take immediate, temporary steps to stop any wrongdoing

If the investigation will take more than one day, an employer should consider taking immediate steps to deal with the alleged wrongdoing – particularly any harassment. Consider:

  • giving the complainant the option of taking paid leave from work
  • giving the complainant the option of moving to a different work location on a temporary basis
  • instructing the alleged wrongdoer not to talk to the complainant
  • changing the supervisory reporting structure
  • giving the accused paid leave from work.

However, the employer must be careful to avoid the appearance that the alleged wrongdoer has already been deemed guilty of the offense. Also, care needs to be taken to ensure that the burden of any interim remedial measures do not fall more harshly on the complainant, as that can give rise to a separate claim for retaliation.

Preparing the investigation file and log

The investigation file should be complete, accurate, and thorough. It is important to include:

  • a chronology of events
  • a chronology of the investigation
  • a list of all people involved or contacted
  • a list of all documents reviewed
  • all communications with those involved
  • witness statements
  • documents that establish or refute the issues investigated
  • physical evidence
  • investigator’s reports
  • documentation of results or remedial actions
  • a summary of the allegations and responses
  • a complete record showing the employer’s prompt and appropriate action.

Employers should not include conclusions about credibility or the merits of the complaint, as the file may be admissible in a later lawsuit. Instead, the file should only contain objective, fact-finding information. The file should not contain opinions, advice, or any communications in any form from the employer’s attorney.

Good investigation files also include a log of all complaints and actions. Keeping the complaint logged is a good way to keep track of complaints within a changing workplace. The log also makes the employer aware of multiple claims against the same person or within the same group. The log should include:

  • date of the initial complaint
  • name of the alleged victim
  • type of claim
  • name of the alleged accused
  • department/division involved
  • level of complaint (for example, internal-informal, internal-formal grievance, lawsuit)
  • resolution and date
  • person assigned to investigate.

It is crucial to always keep the log confidential.

Reaching a conclusion

As a consequence of the investigation, the investigator should reach one of three conclusions concerning a complaint of wrongdoing:

  1. that the wrongdoing actually occurred
  2. that the wrongdoing complained of did not occur
  3. that the evidence was inconclusive, if the investigator is truly unable to determine whether the wrongdoing occurred.

A determination that evidence is inconclusive, however, should not be used as a means of avoiding a difficult decision.

Validity of the claim

In determining whether the complained-of conduct occurred, the investigator should evaluate the credibility of all witnesses, considering whether the complainant’s story or the alleged wrongdoer’s story is consistent with the stories provided by other witnesses. The investigator should determine whether the complainant and the alleged wrongdoer were cooperative or appeared to be withholding information and should also consider whether the complainant or alleged wrongdoer exhibited characteristics of lying (failure to make eye contact, squirming, internally inconsistent story, lack of details, etc.). In addition, an investigator might consider the past history of the complainant and the alleged wrongdoer. Even if past complaints against the alleged wrongdoer were investigated and found to be inconclusive, multiple complaints may indicate a pattern supporting a conclusion that the current complaint is true. Alternatively, a history of baseless complaints by the same complainant or against the same supervisor may indicate that the current complaint is not valid or that it may have been made for ulterior purposes.


Finally, the employer must document any decision reached. Documentation should include a review of the complaint, a summary of each witness’s version of the relevant facts, and the investigator’s conclusion with an explanation of reasons. It is usually important that the investigator not make any pronouncements about whether particular conduct violated the law because such a conclusion could be very damaging to the employer in a future lawsuit. A lot of objectionable conduct may be inappropriate or in violation of accepted employer norms but not so severe or pervasive as to be a violation of law. Thus, it is common to find that the conduct violated the standard of behavior expected of employees, but that it did not constitute a violation of the employer’s harassment policy.

Additional report-writing considerations for an investigator include:

  • Be familiar with the employer’s policies, procedures, and definitions.
  • Develop a template/format for reports, and use it consistently across investigators.
  • Decide what terms will used for the parties and witnesses and be consistent across investigators.
  • Develop standard language for commonly cited issues.
  • Think about how to communicate facts and concepts to somebody who has never spoken with the parties or who is not familiar with the employer’s policies/procedures.
  • Language in the report should be professional, neutral and balanced.

The report should include an introduction as follows:

  • Introduce the parties, their role on campus and their relationship to one another.
  • Explain the circumstances of the report to the employer.
  • Explain when and why an investigation ensued and what policy and procedure applies.
  • Explain the investigator’s role.
  • Explain any factors that will help the reader better understand the investigation, investigation process.

The chronology and substance of the investigation should be addressed as follows:

  • In general, write in chronological order.
  • Identify all witnesses interviewed and the dates of the interviews.
  • Note who was present at the interviews and where they occurred.
  • List any other evidence collected and date and manner of collection.
  • Where applicable, explain reasons for failure to interview witnesses or failure to collect pieces of evidence.
  • In a nonjudgmental way, outline where a party’s statement is consistent or inconsistent and where a party’s statement is corroborated or refuted by other available information.
  • Be accurate and detailed in describing the incident, the parts of the body, the physical acts that occurred, location, injury, acts, elements of force, coercion, threat etc.
  • Be objective in the description of all information.

Consistent with the employer’s policy and protocols, consider whether to provide the parties with the opportunity to review a preliminary report in order to identify additional witnesses or sources of information, reconcile conflicts in information, and ensure the sufficiency of the investigation.

Depending on the scope of the investigator’s role, the analysis of the facts may include the following elements:

  • Identify the specific policy violation and relevant elements of the violation.
  • Identify the burden of proof (preponderance of the evidence).
  • Evaluate the evidence in light of the elements and provide a rationale for the finding.
  • Evaluate demeanor, interest, detail, motive, bias, and corroboration.
  • Make the analysis and reasoning clear to the reader.
  • Discuss relevant portions of the evidence as it relates to the investigative conclusions.

While these sections may not be included in the investigative report provided to the parties or the adjudicative body, they are important considerations to document and maintain in an investigative file:

  • Explain whether there was a concomitant criminal investigation, particularly if it affected the timing of the internal investigations. If it did, explain what the employer did to provide for the complainant’s and community’s safety during any “delay.”
  • Explain any other delay.
  • Explain any other factors impacting the investigation (e.g., complainant’s request for no institutional action, including how the request was assessed and determination was made).
  • Explain all interim measures and be specific.
  • Explain investigative decisions, including the decision to not interview a witness.

Closing the investigation

Once a conclusion is reached about what occurred, the employer must take swift, appropriate action including but not limited to discipline, termination, warning, or conclusion of the investigation without action. It is usually a good idea to separate the investigation function from the task of deciding what to do with the results. Someone in human resources is much more likely than an outside investigator to understand the effects of particular remedial action in the workplace and to ensure that the employer is treating cases of similar severity in a similar manner. For this reason, it may be beneficial to request that an outside investigator not make any recommendations in the initial report. Once someone from human resources reviews the factual conclusions of the investigation, the investigator can then be questioned about any suggested remedial actions. 

Any documentation issued to close out the investigation, whether or not discipline is issued, should remind all parties that the employer’s policy prohibits retaliation and any suspicions of retaliation should be reported and investigated promptly. It is also helpful at this stage to review the employer’s applicable policies with everyone involved in the investigation.