What to Write, What to Leave Out, and Who Gets to Read It

What Employers Need to Know

The report is the investigation, as far as any later reader is concerned. The interviews fade but the report survives to speak for or against the process.
The report should include findings of fact, not legal conclusions. It should determine what happened and whether a policy was violated.
Limit distribution of the report. Every additional reader is a potential waiver, a potential leak, and a potential witness. Decide who needs the report, give other appropriate stakeholders the outcome, and control the drafts as tightly as the final.

Structure: a document a stranger can trust

A defensible report answers, in order, the questions a skeptical stranger would ask.

What was investigated? The allegations and scope, including any changes, should be clearly articulated and easy for the reader to find.
How was the investigation conducted? The investigator should be clearly identified in the report, and all witnesses should also be identified with the date, time, and medium utilized for the interview included. Any obvious omissions or where a witness declined to speak with the investigator, should be reflected in the report. The report should also identify all documents, data, and evidence the investigator reviewed and considered in rendering the findings.
What did the witnesses offer? Witness accounts should be summarized fairly, including the accused’s denials and responses.
What did the investigator conclude? The report should include findings on each allegation, with credibility shown, not summarized (read more on that in this prior installment). Keep recommendations about discipline out of the findings report where your process separates the investigator from decision-maker. In this scenario, the investigator finds facts; the organization decides consequences; and the report should reflect that division of labor because, as we discuss in the next installment, that separation is itself protective.

The legal-conclusion line

The single most common report error we see is when a well-meaning investigator asserts a legal conclusion, not a policy-based conclusion in the report. Statements like “the conduct created a hostile work environment” without context have legal implications. Hostile work environment as it is defined by the company’s policies may carry a different meaning than the legal definition. Lean on the workplace policy, not the law. Reports containing legal conclusions have authored the plaintiff’s opening statement. The disciplined formulation should stay behavioral and policy-based (i.e., this conduct occurred and it violated the company's Respectful Workplace Policy). Whether the conduct also violated Title VII or state law is a question for counsel and should be answered in a separate, privileged memorandum that never travels with the report. This division is not evasion; it is accuracy. Policies are properly broader than statutes. Your organization can and should prohibit conduct well short of legally actionable conduct, and a report that conflates the two erases the distinction your policies were written to create.

Oral reports, drafts, and distribution

A written report is the default. It should be contemporaneous, signed, and dated. There are matters, including executive matters with counsel deeply involved and litigation near-certain, where counsel may reasonably advise an oral presentation of findings with a privileged memorandum behind it. This should be a deliberate legal judgment to make with your lawyers, not a shortcut to take because writing is uncomfortable. Wherever you land, drafts may be discoverable, so draft accordingly. Also ensure that counsel’s review happens in the privileged channel. Distribution should follow need, not curiosity. The decision-maker, counsel, and the narrowest HR circle the matter permits should have access. The complainant and the accused should get the outcome, not the report.

What should employers do now to improve the quality of their reports?

Adopt a standard report template. The template should include scope, methodology, evidence, findings, and a credibility analysis. It should be utilized by every investigator, and to the extent possible, for every matter.
Audit for legal conclusions buried in the report. Legal analysis should be limited in a separate attorney memorandum that is privileged.
Set a drafts protocol. All stakeholders must know not to distribute the report outside the defined working group. The distribution list of the drafts and the final report should be intentionally limited.
Audit your last three investigation reports against this framework; the gaps you find are your training plan.

Next installment: what to do after the findings? Imposing proportionate discipline, communicating with the complainant, and the next six months after the investigation concludes.

The Investigation Roadmap: A Twelve-Part Series for Employers

This is an installment of the Investigation Roadmap, a twelve-part Vorys at Work series on workplace investigations. It is published weekly and walks through the full life of a workplace investigation, from the moment a complaint lands to the day the file becomes an exhibit.

Access additional installments