How to Conduct an Effective Internal Business Investigation

Internal investigations play a pivotal role in maintaining a productive workplace and reducing a business’s potential liability. However, to reap these benefits, it is equally important to know how to write a factual, solid, representative report of an internal investigation that will withstand scrutiny and provide appropriate information for future reference in a litigation or government investigation.

Importance of Comprehensive Internal Investigations

Once a potential issue is discovered whether via an internal complaint or through firm surveillance, companies must conduct a fair and comprehensive investigation. Regardless of if you are dealing with workplace harassment or potential regulatory violations, the goal of an internal investigation is to determine if the reported/suspected conduct occurred; what the circumstances were; who was involved; whether a law or company policy was violated; and, in some circumstances, whether self-reporting to the appropriate regulatory or state agency is necessary. Below are several tips for success:

• Act quickly: Investigations must proceed promptly.  Quite simply, memories fade and fade fast. Thus, in order to obtain the most accurate and reliable information, it is of the utmost importance to interview all relevant parties, including any complainant, co-workers, managers, or other witnesses as soon as possible. Attaining a general understanding of the issues in an expeditious manner can help determine how best to proceed with a formal investigation.
• Ask the right questions in the right way: Effective interviews are conversations, not interrogations. Thus, it is critical to establish a rapport with each person you interview i.e., you get more bees with honey than vinegar. Do not be argumentative and avoid using an accusatory or judgmental tone. It is equally important to ask open-ended questions that provide for a narrative response.  Listen, take notes, and then use follow-up questions to obtain details.  Also, pause between questions ─ more times than not, the interviewee will add additional information to their response to fill the silence.
• Be thorough: Conducting an investigation in name only can be worse than doing nothing at all. It is imperative to thoroughly investigate the issue, review all relevant policies and procedures, and interview all potential witnesses (while at the same time, remaining cognizant of any confidentiality concerns as stated below).
• Preserve confidentiality: It is important to maintain confidentiality, with respect to any complainant, witnesses, and those who have been accused of wrongdoing. When conducting the investigation, it is also wise to limit access to only those who need to be involved.
• Prioritize impartiality: Removing potential bias is also essential to an effective investigation. In some cases, this may require obtaining the services of a neutral third party, such as outside counsel.
• Document the process: As you proceed, be sure to preserve any evidence you collect, including documents, email correspondence, and interview notes.  Documenting your investigation through a written report is discussed further below.
• Ask for help: In many cases, it may not be readily apparent whether the alleged wrongdoing is illegal and must be reported to state and federal regulators. To determine the best course of action, it is often necessary to involve experienced legal counsel, whether it is in-house counsel or an outside firm.
• Share the results: Once the investigation ends, all involved employees will want to know how the issue was resolved, including what corrective action was taken, if any. At this point, it is also advisable to inform employees how to raise concerns about potential retaliation.

Writing an Effective Investigation Report

Because an investigation that is not documented properly is akin to one that never happened, it is essential to know how to draft a formal investigative report. A well-written report can be a tremendous asset by demonstrating your organization’s timely and thorough response, as well as the integrity of the investigation. Below are some of the key elements of an effective report:

• Executive summary: Most investigative reports begin with an executive summary that provides a brief summary of the complaint and the relevant policy or regulation that may have been violated. The summary should also detail the investigative mandate and the final conclusions reached. While a detailed outline can be useful in guiding the investigation, the summary should be written last, as it should reflect the final outcome and not what the investigators initially believe it may be.   
• Allegations/facts: This section of the reports should discuss the background facts to the subject allegation or incident, including the employees and departments involved. Facts that may be relevant include the relationship between the employees, their job duties, and the activities of the departments involved. A timeline of events may also be warranted.
• Relevant policy or regulation: This section of the report should discuss the policies, rules, regulations, or other legal obligations implicated by the allegations, as well as how they informed the scope of the investigation. For each potential policy or legal violation, it is important to discuss the elements required and the burden of proof.
• Evidence: This section should also detail the documents considered, including the sources of the documents and how they were authenticated. It should also discuss the interviews conducted and provide summaries of all witness statements.
• Analysis: This section should discuss the position taken by each relevant party, i.e., the reporter, the subject of the investigation, and any key witnesses, along with the evidence supporting each position. This section should also address what facts were deemed relevant or irrelevant, what facts were disputed, and how the credibility of the parties was assessed.
• Findings/conclusion: All investigations must reach a conclusion. These conclusions must be based upon an unbiased view and evaluation of the information collected during the course of its investigation, including documents, e-mails, witness statements, etc. There are typically three types of conclusions:
  • There is no evidence to substantiate the potential legal or policy violation.There is sufficient evidence to substantiate that there has been a legal or policy violation.
  • There is insufficient evidence to substantiate the potential legal or policy violation, meaning that no definitive conclusion can be reached due to lack of information.

Of course, the investigation report must appropriately detail the basis for any conclusion, including citing any relevant legal standard or firm policy language and explaining how the information collected supports your conclusion. Also, if appropriate, provide for any “next steps.”

Again, when drafting the report, it is essential to be impartial and professional. The report should be comprehensive, in that it documents all aspects of the investigation and addresses all of the issues raised. However, at the same time, an effective report must be clear, succinct, and straightforward to read.

Key Takeaway

An effective internal investigation process protects the financial interests of your business, as well as its reputation. It can not only reveal misconduct and regulatory violations, but also identify ways to improve how your business operates. Because most managers, human resource professionals, and compliance officers are not trained investigators, it is often advisable to work with experienced counsel when conducting an internal investigation and preparing the resulting report.