Supplemental materials for LEAP 2025 session Investigations: Getting It Wrong Is Not an Option
Employment lawyer John Doran has a secret weapon he deploys every time a client asks him to conduct an investigation of alleged workplace misconduct: an investigations toolkit already loaded onto his laptop. It contains templates for all the documents needed to conduct witness interviews, determine what happened and guide the investigation toward resolution.
Speaking at The HR Specialist’s 19th Annual Labor & Employment Law Advanced Practices Conference this spring in Las Vegas, he urged HR pros to prepare a similar suite of documents themselves.
Doran, a partner at the Sherman & Howard law firm in Phoenix, says an investigations toolkit serves two important purposes.
“The final report on your investigation findings is Exhibit A in court,” Doran said. “It will be read by every judge and every jury.”
Pro tip: Doran advises placing a folder containing templates for all the following documents directly onto your computer desktop. “Then copy and paste it into your working files every time you start an investigation,” he said. Then save all the documents with file names unique to the investigation at hand.
Here are the elements that belong in your investigations toolkit:
Investigative plan: Your overall strategy for conducting the investigation. Capture what allegedly happened, who was allegedly involved and when the alleged incident occurred. Lay out a preliminary schedule for conducting the investigation.
IT and litigation-hold documents: These are boilerplate documents telling the IT department and all relevant parties that they must preserve and not alter any files that might conceivably be associated with the incident or investigation.
Issues list: A detailed catalog of the problems you may have to address as an investigator.
To-do list: A detailed catalog of all the tasks you envision having to complete during the investigation and afterward, after you have gathered all the available information.
Witnesses list: Who you must interview to gather information about the incident.
Witness scripts: What you will say to every witness you meet with. Examples: statements about the reason for the investigation and its goals, how the process will work, the interviewee’s role and what might happen (and might not happen) once the investigation concludes. Include questions you will ask everyone you interview, as well as queries specific only to certain witnesses. “After 35 years, I still use a script whenever I interview a witness,” Doran noted.
Interview notes/witness statements: This is where you will document what witnesses tell you. Prepare one set of notes and statements for each witness.
Documents reviewed list: Record every single document you accessed or read during the investigation, including internet searches.
Call, email and voicemail list: Note the details of every conversation you had with anyone about the investigation, regardless of the medium. Capture the date, the parties involved and the substance of each conversation.
Issue resolution list: Record matters still outstanding after you have conducted all interviews and gathered as much information as possible. Detail how you plan to resolve these issues.
Ongoing draft report: This is an iterative version of your final report describing what you learned during the investigation, what conclusions you reached and the discipline you recommend, if any.
Crucial advice: “Save each version of your draft reports,” Doran counseled. “Never delete any of the files you create during an investigation.” That’s because an employee’s attorney will zero in on any gaps in your investigation documentation, and that could sink your defense in any litigation. “Deletion equals guilt in court,” Doran said.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
