When a lawsuit alleging discrimination, harassment, or retaliation arrives at your door, will you be prepared to defend it? 
Why documentation is important
We all hope, of course, that our workplace culture prevents employees from experiencing unlawful harassment, discrimination, or retaliation; that we have good, solid policies in place to address any complaints that do arise; and that we never have to get to know a lawsuit. But just taking appropriate action in response to a complaint may not be enough if the documentation of your response is sketchy or insufficient. You may think you’ve adequately resolved a problem in the moment, but without a good record of what you reviewed, whom you spoke with, and what you did, you will find yourself scrambling to reconstruct a sequence of events you thought you put to rest.
As employees have become more conversant with their right to a workplace free from unlawful discrimination and harassment, and more aware that they can lodge complaints without fear of retaliation, employers have become more attuned to their responsibility to listen to, investigate, and follow up on complaints. Quite a bit has been written about how to conduct investigations in a fair, thorough, and impartial way, but less attention has been paid to the mechanics of documenting your response in a way that will not only resolve the complaint satisfactorily in the present but also provide protection for your company should a lawsuit be filed in the future.
As with any documentation, the most important thing to keep in mind is that good documentation can become your best defense, and bad documentation can come back to bite you. But that leads to the question, what defines good documentation?
How detailed should you get?
The depth of the investigation you undertake in response to an employee complaint will obviously depend on the nature of the complaint. Is the employee saying that a coworker is engaging in inappropriate harassment? That he has been denied accommodation for a disability? That she isn’t being paid as much as a coworker who performs the same job? Or that there’s widespread pay inequity or a departmentwide culture of gender bias? You may need to interview only one or two witnesses and review a few harassing e-mails, or you may need to investigate a score of witnesses and wade through a mountain of documents. (You may also conclude that you have to hire an outside investigator or engage legal counsel to protect privileged and confidential communications. That’s a topic for another article.) But in every case, you will want to pay careful attention to the evidence you uncover and the factors that influence how you weigh that evidence.
The report you write—whether it’s just a short memo to the file in a simple case or a lengthier description of your investigation and the reasoning behind your conclusions—should demonstrate that you took the matter seriously and addressed it in good faith. If you’re sued later on, the court will afford much more deference to how much attention you paid to the matter, and the soundness of your reasoning, than to arguments in favor of a different interpretation of the facts.
In other words, most judges won’t overturn your factual findings or conclusions if you can demonstrate that you looked into the issue carefully and thoroughly, and exercised reasonable judgment in reaching your conclusions. The documentation you produce will be critical in supporting you in this respect—and knowing when you start your investigation that you will need to document it thoroughly will have the added benefit of prompting you to give the task the level of care it deserves.
So the first characteristic of good documentation is that it reveals the care and attention you gave to uncovering the facts and weighing the evidence. At a minimum, you should outline all the steps you took, including the names of witnesses and the dates of their interviews, the documents you reviewed, and an explanation of the reasoning behind your conclusions. Your documentation should also demonstrate that you listened carefully to the complaining employee, you have a clear understanding of what he complained about, and you approached the matter with an open mind.
If you’re responding to a written complaint from an employee, your report should show that you met with him and confirmed that you correctly understood the nature of his complaint. You should also clearly reference the policy that governs the conduct in question, preferably by quoting the applicable policy language in the report. Policies change from time to time, and you don’t want to stumble later on if you can’t show that you proceeded under the correct policy. Your report should also reflect that you informed the complaining employee that she is protected from retaliation and advised each person you interviewed (and the employee’s manager, if appropriate) that any form of retaliation is strictly prohibited.
Putting together a report
That’s a fair amount to keep in mind as you scramble to fit an unanticipated investigation into your regular work responsibilities. But there are practical steps you can take to make the task easier. The first and most useful step is to type or write up your notes as you go along. Typing the notes may have the added benefit of making them searchable and allowing you to cut and paste from your notes as you put together your report.
The most important thing is to have contemporaneous notes. It can be agonizing to try to reconstruct a conversation even a week after it occurs, and you won’t remember whether Joe or Jennifer told you something if you are interviewing more than a few people and don’t take notes during the interviews.
Plan on at least a few minutes in between interviews to make notes or to go over and clarify notes you took during the interview. And if you’re quoting a witness’s words, make sure you include quotation marks in your notes so that you can later distinguish been the witness’s exact words and your own summary or interpretation of what he said.
It’s helpful to create a chronology of the facts at the outset and add to it as you go along. Not only will that help you frame your questions during the investigation and flag inconsistencies in a witness’s account or between witness statements and documents, but it will also help you write a much more coherent report when you get to that point.
You should also have a chronology of your process, documenting in particular any reason for delays that slow down your investigation. You’re less likely to be accused later on of dragging your feet with the investigation if your report explains that an important witness was on medical leave and couldn’t be interviewed right away instead of simply noting the dates that interviews took place.
An effective report will summarize the information that was considered in making a determination but will also reference information that wasn’t considered, either because it was deemed irrelevant or unreliable or because it was simply cumulative of other evidence that was taken into consideration.
Reaching a conclusion and imposing discipline
Once you have summarized the information you uncovered, the most challenging part of the report looms: how to describe the factors that led you to conclude that one fact was more important than another, one witness was more credible, or one document was more persuasive. Credibility may be the factor that influences your decision most, and if you can point to the specific factors that led to your credibility determinations, your report will be more persuasive.
Are there inconsistencies in one witness’s version of events? Did that witness’s story change over the course of the interview or when he was presented with contrary facts or asked about a document? Does the witness’s version of events seem logical? Does the witness have a stake in the outcome? Is the witness a close friend or relative of the employee who complained or the employee who was accused of wrongdoing? Did the witness avoid eye contact or try to steer the subject away from your line of inquiry?
Any of those factors might figure into a credibility determination. If your report articulates, even briefly, what led you to give more weight to the statements of one witness over another, a subsequent fact-finder, such as an arbitrator or a judge, will be much less likely to second-guess your judgment.
Finally, if it’s your responsibility to impose discipline or decide the consequences of your findings, your report should explain why you took the action. Is the discipline consistent with discipline imposed in similar situations in the past? Is it proportionate to the conduct in question? Has the behavior that led to the complaint been addressed and corrected? Was the employee who engaged in misconduct appropriately contrite and apologetic? Whatever your reasoning for choosing to respond in a particular way was, you should make note of it in your report.
Bottom line
It would be nice to think that if you address employee complaints promptly, fairly, and as thoroughly as the situation warrants, everyone will be happy with the outcome, and the matter will be put to rest. That’s not always the case, however. A subsequent legal complaint or grievance by the complaining employee or the employee who was disciplined isn’t uncommon in this litigious day and age.
You will have done your best to protect your employer if you create a report that clearly shows how you 
addressed the original complaint and why you reached your factual determinations. And you will have helped yourself out if you are ever called to the witness stand and asked to recall the details of an investigation you undertook months or even years in the past.
Karen McAndrew is the head of the Litigation Section at Dinse, Knapp & McAndrew, P.C. in Burlington, Vermont, She may be contacted at kmcandrew@dinse.com.
Need to learn more? Join us November 15 at the 2017 Advanced Employment Issues Symposium where Employers Counsel Network attorney Charlie Plumb will present Workplace Investigations: Your Action Plan for Probing Complaints, Interviewing Witnesses, Reaching Reasoned Conclusions, and Taking Action. HR is legally required to thoroughly investigate every complaint of unlawful or potentially unlawful conduct that crosses your desk, even when it seems without merit. The secret to conducting a successful inquiry is to get your complete investigation plan in place before the complaint ever hits your desk—because as you well know, in HR it’s never a question of if, but when. This pre-conference workshop will bring you up to speed on how to conduct efficient, effective, legally compliant workplace investigations. For more information, click here.