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How You Investigate Is How You'll Be Judged.
When an employee complains about harassment, discrimination, or misconduct, your investigation becomes evidence. A thorough, fair, documented investigation creates legal defenses. A sloppy one creates liability.
Why Investigations Matter Legally
Under the Faragher-Ellerth defense, employers can avoid liability for harassment if they took "reasonable care to prevent and correct" the behavior. A proper investigation—even if it doesn't "solve" the problem—demonstrates reasonable care. A missing or botched investigation destroys this defense.
Key principle: The investigator's notes, interview questions, and reasoning become discoverable evidence in litigation. Every step must be conducted as if a jury will review it.
Investigations We Support
We provide investigation strategy, conduct interviews, or guide internal teams.
Harassment & Discrimination
Complaints involving protected characteristics require careful, compliant investigation.
Policy Violations
Theft, fraud, substance abuse, safety violations, and misconduct allegations.
Data & Security Breaches
Unauthorized access, IP theft, and confidentiality violations.
Whistleblower Complaints
Allegations of illegal conduct that require independent, documented review.
Our Investigation Framework
1
Intake: Understand the complaint, identify urgency, assess legal implications2
Planning: Determine scope, identify witnesses, preserve relevant evidence3
Interviews: Conduct neutral, thorough interviews with proper documentation4
Evidence Review: Analyze documents, electronic records, and physical evidence5
Credibility Assessment: Evaluate witness reliability and conflicting accounts6
Findings & Recommendations: Document conclusions and recommend appropriate actionFrequently Asked Questions
Involve an attorney when: (1) the complaint involves discrimination, harassment, or retaliation; (2) the allegation is against a senior leader; (3) the complaint could lead to litigation or regulatory action; (4) prior investigations of the same issue exist; or (5) the investigation may require terminating a high-risk employee.
The investigator should be: neutral (no stake in the outcome), trained in investigation techniques, credible to both sides, and protected by privilege if litigation is anticipated. For serious matters, outside counsel or trained investigators are often preferable to internal HR.
These are the highest-risk investigations. The investigator must be completely independent (often outside counsel), the process must be rigorously documented, and you must be prepared to take action regardless of the person's importance. Failing to act against senior employees creates massive liability.
Investigations conducted by attorneys for the purpose of providing legal advice may be privileged. However, privilege can be waived if investigation findings are shared too broadly. We structure investigations to maximize privilege protection while still allowing appropriate business decisions.
Document: the initial complaint, investigation plan, all witness interviews (including questions asked and answers given), evidence reviewed, credibility assessments, findings of fact, and the basis for any disciplinary decision. This documentation is your defense in any subsequent lawsuit.
Many investigations result in 'he said / she said' situations. You're not required to determine guilt beyond a reasonable doubt. Evaluate credibility, look for corroborating evidence, and document your reasoning. Taking reasonable corrective action (even if you can't prove the allegation) may still be appropriate.
Document Every Step. Protect Every Decision.
When a complaint lands on your desk, contact us before interviewing anyone.