September 13, 2018
Author: Kenneth M. Golski, Esq.
Organization: Hogge Law
Memorializing and Concluding an Investigation
I. General Rule: Legal duty to conduct a prompt and thorough investigation.
It is extremely important to begin to identify and collect documents immediately when you become aware of improper conduct and start an investigation. Explaining a document (and their sometimes inconsistent or incomplete nature) is generally easier than explaining the lack of any documentation and the negative inferences it can lead to. But always assume and keep the mindset that all documents will be discoverable by an opposing counsel whether you think there is some sort of privilege or not.
Take the initial report in writing when brought by employee, allowing the complainant to identify the particular concerns in detail, filling in as many gaps as possible. This will help form the framework of the investigation. Have a system in place before the need to use it arises so your bases will already be covered. Ideally, identifying a problem early and conducting an investigation will quickly put a stop to the situation and minimize any impact. But it will place your company in the best position possible to move forward in a positive direction.
Clear and decisive steps that are well documented will demonstrate to all involved parties that you are committed to fair and proper treatment in the workplace. In a lawsuit, a well documented case presents a credible picture for a judge and jury to find that the company took the correct steps and addressed the problem directly. It is especially important to help establish legal defenses against any claims made by employees. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Inds. V. Ellerth, 524 U.S. 742 (1998).
II. Gather Relevant Documents:
A. Collect and Review: Start to collect immediately. Consider: handbook, policies, procedures, code of ethics, email, personnel files, texts, voicemails and anything provided by the complainant (including the written complaint). Also consider other possible document sources such as social media (but be wary of forcing disclosure). In extreme cases there may be the need for the electronic forensic examination of computer hard-drives and network systems.
B. Keep an itemized (Bates stamped) list of each set of documents and its source.
C. Issuance of a Litigation Hold. Under the case of Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003),.there is an obligation to protect and preserve information that may be relevant to litigation. A litigation hold letter issued for the collection of such documents and the prevention of document destruction is an extremely important step once litigation is reasonably anticipated (or a letter from an opposing counsel is received).
D. Classify all documents for confidentiality and/or priviledge.
III. What to Document: The Who, What, When, Where, Why and How.
Carefully document the information gathered and learned throughout the investigation. It is important to note when things are received, who provided certain documents and who else
may have copies, access, or additional information. Having a single source collect the documents provides consistency and order to an investigation.
IV. Options for Interviews:
A. Handwritten notes- Investigator can and should take their own notes during the investigation. Some employers prefer a primary questioner with another person taking notes. Audio recordings can be considered, but they, along with transcription, may stifle the investigation flow. Reviewing the investigative notes with the witness for accuracy is appropriate, but be sure to keep notes confined to facts, not full of impressions and opinions.
B. Investigator can make a separate document of impressions and additional ideas following the meeting, but again, always remember and assume it will be discoverable in litigation.
C. Notes about observable impressions such as demeanor, eye contact, and other characteristics should be noted if important, but keep “personal opinions” and “gut instincts” out of the equation.
V. Review the Investigative Plan and Frequently Check for Accurate Document Collection. Explore additional avenues of investigation and collect/gather information learned throughout the investigative process.
VI. Closing the Investigation
A. Investigative Report. All investigations should be concluded by an Investigative Report which organizes and summarizes the evidence and findings.
i. Description of the Complaint.
ii. Identification of Policies.
iii. Description/summary of the investigation and process.
iv. Identification and summary of the evidence, including any evidence discounted (and why).
v. Conclusions (substantiated, not substantiated, inconclusive).
VII. Communicating the Outcome:
A. Complainant- Inform of outcome (substantiated or other) and that issue to be addressed. Reaffirm company’s position on non-retaliation.
B. Alleged Perpetrator- Inform of outcome and action.
VIII. Compiling the Data
A. Can keep summarized data for comparison (but keep summaries basic to allow flexibility for circumstances).
Privileged & Confidential Memorandum
To: HR Executive
Re: Investigation Summary
Cc: Need To Know Persons
The following is a summary of the findings from the investigation I conducted as
a result of the Anonymous Complaint letter received by The King of England
and the Royal Designate of Jamestown containing allegations about Captain John
Smith. The Anonymous Complaint makes some broad allegations about the lack
of leadership of Captain John Smith as well as containing several specific
allegations as examples and evidence of his abuse of power in his position.
As a result of this Anonymous Complaint letter, I traveled to the local office,
which is where Captain John Smith is located, on the 12th day of August, 1608, to
interview other managers and employees who report to Captain John Smith, as
well as talking to others in the office who might have information and/or
observations. Upon completion of this investigation at the local office, I find no
evidence substantiating any of the allegations made in the Anonymous
Complaint letter. All of the employees who report to or work with Captain John
Smith that I spoke with have full confidence and comfort in Smith’s leadership
and abilities and are not aware of any dissatisfaction.
Specific Allegations and Findings
1. Leadership: The Anonymous Complaint letter alleged in non-specific
terms that all managers and employees working with Captain John
Smith “despise” him and his management tactics and have no
confidence in him.
The Anonymous Complaint letter alleges Captain John Smith does not develop
and grow his team and employees and simply terminates or forces to quit those
employees not achieving their goals or revenue. Across the board of the
Jamestown Company employees I spoke with about Captain John Smith, open
communication, fairness in treatment and willingness to listen were all key
elements mentioned about his leadership skills. A number of employees
discussed the “family” nature of the office when working with Captain John
Smith. All of the individuals indicated they have trust in Captain John Smith as
a manager and would feel comfortable going to Captain John Smith with any
issues and concerns. A number of individuals did indicate they had gone to
Captain John Smith with concerns and that he listened and assisted with the
All of the individuals I spoke with felt that Captain John Smith does not tolerate
poor performance or misconduct and addresses those situations fairly and
consistently. The employees also felt that there is an opportunity to grow and
develop with Captain John Smith as a leader, with two of the individuals
describing their career progressions with Captain John Smith from low level
positions to supervisory or commander positions. Communication about goals
and expectations was reported to be very strong in Captain John Smith’s group.
This element was noted to have become even better following the move from the
Croatan development and that the goals and expectations were reasonable and
clearly explained. It is also of note that there is significant tenure with the
employees reporting to Captain John Smith, all of whom reported positive
feelings about his leadership as well as positive feelings about the Company.
2. Abuse of Power: The Anonymous Complaint letter cites two specific
examples supposedly demonstrating Captain John Smith’s abuse of
power in his position: a) Storing personal belongings from his home in
the fort; and, b) Having a reserved, double-wide hitching post at the
front of the colony.
a. Storage of Personal Items in the Fort
The Anonymous Complaint letter indicates that Captain John Smith
“utilizes part of the Fort for storage of his own personal stuff from his
residence including fur pelts.” My investigation revealed the onetime
use of the fort to temporarily store a grain bin following the
destruction of Captain John Smith’s farmhouse in the snowstorm in
1608 where 3-feet of snow fell in two days. The grain bin was stored
for several months in the side area of one of the armories amongst
discarded equipment such as a table, weapons, old trapping
equipment and Thanksgiving decorations.
During the investigation I had the opportunity to tour the entire fort
which is an area of approximately 29,000 square feet. Aside from the
regular meeting space which contains a commercial furrier area, a
private party area, a gathering center and a tribal indian specialties
area, there are two vast warehousing areas on each end of the colony
with multiple rooms for storage. There is also an outside logging
company which leases space in the fort. The storage areas were not
full and had significant unused space. One section of one of the
storage area is used so infrequently there are cobwebs prevalent.
There was no indication of any personal property in any of these
areas. As previously noted, at one time there was a grain bin housed
in an unused area of one of the storage rooms. During the
interviews, all employees acknowledged being aware of the grain bin,
the reason it was there, and none of the employees had any issues
with it being kept there temporarily. I did take the opportunity to
speak with Captain John Smith about that particular incident and he
admitted he did not hide the fact that the grain bin was there because
of the collapse of his farmhouse. Captain John Smith indicated that
he would have let anyone who had an emergency situation
temporarily keep something there as long as it did not interfere with
business. This is consistent with the comments during the interviews
with his employees.
I advised Captain John Smith of the possible perception concern that
might result from taking such actions and he indicated that he
understood. While none of the individuals I spoke with had such a
perception, the Anonymous Complaint letter cites this as evidence of
Captain John Smith’s “abuse of power.” The investigation revealed
this is not the case and that there was a one-time emergency situation
that caused no problem within the office.
b. Reserved Double-Wide Hitching Post
The Anonymous Complaint letter also cites as evidence of abuse of
power that Captain John Smith uses a double-wide hitching post at
the front of the fort. My onsite investigation did not reveal the use of
reserved hitching posts in the colony.
As one enters the fort, there are five designated hitching posts in the
courtyard. There are two regularly sized posts reserved for visiting
colonists, one marked handicapped post, and two posts designated
for indians. The larger sized post is one of the indian posts located
next to the handicapped post. This past summer the corral area was
reposts and remarked. The double-wide post was created at that
point when the handicapped post was mismarked.
All of the employees I interviewed indicated that hitching your horse
at the fort is on a first-come first-serve basis and that there is no
reserved hitching posts for employees, not even for Captain John
Smith. Prior to last month, the indian posts were marked with a sign
that said “Reserved” but had the word “Indians” taped over it.
Apparently this tape would sometimes fall off revealing “Reserved”
again until it was remarked. This may have caused an impression in
the Anonymous Complaint letter that this was reserved for
management. But again, the results of the investigation showed this
to be a misperception. Also, since last month, following the reposting
of the corral, new signs were placed in those posts which read “Indian
The investigation conducted following receipt of the Anonymous Complaint
Letter revealed that the allegations about Joe Captain John Smith’s management
skills and alleged policy violations and abuse of power are unsubstantiated. The
overall impression of the employees is that Captain John Smith is a positive
manager with strong and open communication skills. The investigation did not
reveal any undercurrents of concern. All of the individuals interviewed feel
confident and comfortable with Captain John Smith.