1. Solving the Mystery Behind
Conducting a “Flawless”
Workplace Investigation -
An HR Attorney’s Perspective
Kathryn A. Terry, Esquire
407-418-2300
kterry@fordharrison.com

2. Search for the “Flawless” Investigation
• What constitutes a complaint?
• Do I have a duty to investigate?
• Who should conduct the investigation?
• How should the investigation be done?
• Should an investigative report be prepared?
• Are there common mistakes to avoid?
• How much coffee have you had?
• Will you answer all of my questions & not bill me?

3. What Constitutes a Complaint?

4. What Constitutes a Complaint?
• Written or verbal communication from employee
“specifically” complaining of discrimination, harassment
or other objectionable conduct
• Employee verbally states he/she has “generally” been
treated badly or unfairly
• Supervisor/ manager reports that inappropriate acts or
misconduct have occurred
• Complaints submitted through published policy
• EEOC / FCHR Charge of Discrimination / Lawsuit

5. What Constitutes a Complaint?
• Subtle statements about workplace or supervisor
• Offhand comment from employee directly to or
overheard by supervisor about inappropriate
conduct that has occurred in workplace
• Comments made outside of workplace between
“friends” (“just between us”, “off the record”)

6. Duty to Investigate

7. Duty to Investigate
• Federal & state harassment/discrimination/safety laws impose
legal duty on employer to investigate employee-related
complaints (defenses & mitigation)
• Can include off-duty conduct
• “For Cause” terminations (in employment contracts or CBAs)
require fair & through investigations
• Obligations to shareholders may impose duty to investigate
claims to determine or limit potential liability
• “Right Thing To Do” - provide safe work environment
(“happy employees are productive employees, productive
employees are profitable employees!”)

8. Selecting the Investigator

9. Selecting the Investigator
• Ability to understand business purpose of
investigation & potential issues it may raise
• Knowledge of policies & practices
• Knowledge of applicable legal issues
• Ability to take thorough, accurate notes which
can be used as evidence
• “Communication fit” with personalities &
backgrounds of potential witnesses

10. Selecting the Investigator
• Interviewing skills, including the ability to
identify follow-up questions when new facts or
issues arise during interviews
• Ability to determine when & when not to
maintain confidentiality
• Ability to determine credibility of witness

11. Selecting the Investigator
• Manager or supervisor
• HR professional (“perfect witness”)
• Private investigator or outside consultant
• In-house counsel
• Outside counsel (“CYA”)

12. Conducting the Investigation

13. Conducting the Investigation - Strategy
• Outline scope & breadth of investigation
• Prepare a timeline, include each step that will be
taken & expected completion date
• Recognize that chronology & order of interviews
can either contaminate or enhance success of
investigation

14. Conducting the Investigation - Strategy
• Prepare an outline of critical issues:
- Ensures all issues regarding each witness will be
addressed
- Ensures a thorough & consistent line of
questioning
- Allows investigator to compare similarly situated
witnesses from a standardized approach

15. Conducting the Investigation - Documents
• Rules, policies, & procedures
• Personnel files (named individuals & “comparators”)
• Memoranda or notes about incident
• Complaints (internal or external)
• Videotape (security)
• E-mail, Internet, Blogs, Facebook, etc.
• Other potential information sources

16. Conducting the Investigation - Interviews
• Disclose nature & purpose of investigation at
beginning
- Be candid when interviewing person who is focus of
investigation
- Explain to witness that company takes complaints
seriously
• Make appropriate disclosures (e.g., who you are, who
you represent, why you are there, etc.)
• Do not promise confidentiality!

17. Conducting the Investigation - Interviews
• Stress voluntary nature of participation
- Make clear employee may terminate discussion at
any time
• No retaliation
• Advise that no judgments have been made about
any aspect of investigation, including validity of
complaint
• Just the Facts!

18. Conducting the Investigation - Interviews
• Begin with open-ended questions (“Funnel Approach”)
• Transition to specific situation at issue
• Give witness opportunity to provide additional
information
• Probe witness with follow-up questions, & ask about
knowledge of any relationships between complainant &
alleged wrong-doer or possible motivations for complaint
or conduct at issue

19. Conducting the Investigation - Interviews
• Inquire if witness is hostile/friendly to either
complainant or alleged wrong-doer
• Ask witness if he/she is aware of any others who
might have relevant information or evidence
(witnesses)
• Ask witnesses for additional information &
evidence (photos, e-mails, calendar entries, &
other evidence)

20. Conducting the Investigation - Interviews
• Be an active listener & critical thinker
- “Does this make sense?”
- “Do I understand exactly what happened?”
- “Will the person reading my report understand
exactly what happened?”
• Use your time line to identify discrepancies
between witness’ own story & that of others -
challenge facts

21. Conducting the Investigation - Interviews
• Clarify basis for witness’ knowledge of a “fact”
- How do they know?
• Saw it? Heard it? Touched it? Smelled it? Tasted it? Was
involved in it?
- Distinguish between “no” & “I cannot recall.”
- Document carefully for later review - generally
don’t tape record interviews (witnesses are less
forthcoming)

22. Conducting the Investigation - Interviews
• Prepare formal witness statements or take notes,
as close to verbatim as possible, of facts recounted
to investigation & provide witness with written
statement of his/her interview to verify accuracy
& make any necessary changes
- Witness should sign & date statement
- If this is not possible or practical, confirm accuracy
of notes & obtain initials

23. Conducting the Investigation - Interviews
Specific to Harassment Complaints
• Was conduct welcomed?
• Does alleged action have purpose or effect of
creating a hostile, offensive or intimidating
environment?
• Is it sufficiently “severe or pervasive” to alter
conditions of alleged victim’s employment?

24. Conducting the Investigation - Interviews
Specific to Harassment Complaints
• How often did alleged action occur?
• How severe was alleged action?
• Was alleged action physically threatening or humiliating?
• Describe in detail (don’t accept “dirty talk” or
“inappropriate language or conduct”)
• Does alleged action unreasonably interfere with victim’s
work performance?
- Reasonable person standard (a jury of your employee’s
peers)

25. Conducting the Investigation - Interviews
• Conclude interview
- Repeat significant points & ask interviewee to confirm
information is complete & accurate
- Give witnesses opportunity to disclose anything else he/she
thinks might be important
- Counsel witness to keep matters discussed confidential
- Invite witness to contact you if he/she recalls or discovers
any additional helpful information after interview
concludes

26. Conducting the Investigation - Interviews
(Credibility)
• Demeanor - Body language
- How did witness react to allegations?
- Did witness appear credible overall?
• Logic/consistency
- How much detail did witness offer?
- Did events differ from others interviewed?
- Did witness’ version make sense?
• Is there corroborating evidence?

27. Conducting the Investigation - Interviews
(Recording/Transcribing Interviews)
• Witness may be uncomfortable & less forthcoming
• Florida law requires informed consent of witness
• Once recorder is on, state date, time & place of
interview, name of participants and have witness
confirm on tape his/her knowledge of & consent of
the recording
• Repeat & re-verify consent at conclusion of interview

28. Conducting the Investigation - Interview
Problems
• Fire them … just kidding! 
• Remind them of obligation to cooperate
• Assure them of obligations of confidentiality/non-
retaliation
• Confirm that company can take action based only on
information it is able to obtain during investigation
• Interviewer’s notes should confirm refusal to
cooperate & that disclosures were made to confirm
consequences of refusal to cooperate (“delicate issue”)

29. Preparing the Investigative Report

30. Preparing the Investigative Report
• Write as though every word will be second-guessed
(opposing counsel, judge, &jury)
• Prepare summary of facts
• Include facts, not speculation or hearsay
• Where there are discrepancies, give all versions
• Reach a conclusion
• Who do you believe & why
• Take appropriate action to address conclusions
• Factual findings (possibly recommendations)

31. Preparing the Investigative Report
• Include background of complaint
• Summarize witnesses’ statements: evaluate their
credibility (based on facts)
• Make factual findings (vs. legal conclusions)
• Mark “confidential” - maintain privileges
• Recommend appropriate action, if charged with doing so
- Direct to Counsel/Senior Management
• Prepare final report in anticipation of discovery

32. Preparing the Investigative Report
• Were policies, guidelines, practices violated? If so,
was violation serious or minor?
• What has been done in the past with regard to
similar violations (consistency)?
• Are there mitigating or aggravating
circumstances?
• Creative alternatives?

33. Post-Investigation Measures
• Inform participants of resolution
• Take steps to ensure that no retaliation is taken
• Encourage complaining employee to bring all
issues forward in future
• Continue monitoring situation
• Train managers/ employees as needed
• Give significant raises to HR professionals! 

34. Common Investigation
Mistakes to Avoid

35. Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Taking sides
- Investigator must remain neutral & conduct
unbiased, objective investigation
- Applies equally whether empathizing with
complaining employee or defending conduct of
alleged wrong-doer

36. Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Promising confidentiality
- Breach of contract
- Must be sure to explain confidentiality is
qualified/limited
- Treat as sensitive information - share only with
legitimate need-to-know

37. Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Failing to Document
- “Minor” complaints often not documented
- Relevant documents must be properly dated &
signed
- Sanitize notes & report before finalizing
- Be the “proud author!”

38. Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Failure to Actually Investigate
- Do not simply ask witnesses to provide you with a
written account of what happened
- Important to have interactive interviews to assess
credibility & immediately follow-up on issues raised
- Prevents employees from improperly inserting their
own subjective opinions & potentially biased beliefs
into process

39. Common Mistakes to Avoid While Conducting
a Workplace Investigation
• Failure to Make Conclusions
- “He said - she said” type case, easy to simply state that
no conclusion can be reached
- Important to reach a conclusion based on best
information available, credibility of witnesses, a
determination of who is more likely to be telling the
truth, etc.
- Okay to determine “inappropriate conduct” without
concluding “unlawful harassment” occurred

40. Search for the “Flawless” Investigation
• What constitutes a complaint?
• Do I have a duty to investigate?
• Who should conduct the investigation?
• How should the investigation be done?
• Should an investigative report be prepared?
• Are there common mistakes to avoid?
• How much coffee have you had?
• Will you answer all of my questions & not bill me?

41. Solving the Mystery Behind
Conducting a "Flawless"
Workplace Investigation -
An HR Attorney’s Perspective
Kathryn A. Terry, Esquire
407-418-2300
kterry@fordharrison.com