USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation There are no specific US laws that dictate when an internal HR investigation must be ended. Instead, an investigation should be concluded once it has been conducted in a reasonably thorough, impartial and complete manner, meaning that relevant evidence has been reviewed, necessary witnesses have been interviewed, reasonable credibility assessments have been made, and the employer is able to reach well- supported conclusions. Ending an investigation prematurely can create sig - nificant risk: courts may view an incomplete investiga - tion as evidence of pretext, retaliation or inadequate corrective action; it may also weaken the employer’s ability to rely on defences such as the Faragher / Ellerth affirmative defence (see 5.1 Requirements ) or the “honest belief” defence. (The “honest belief” defence is available to employers defending discrimination claims involving discipline or termination, and allows an employer to defend its action by demonstrating that it was based on an honest and reasonable belief – even if that belief later proves to be mistaken. For this defence, an employer must show it conducted a good-faith investigation and made its decision based on facts reasonably known at the time, rather than on discriminatory motives or assumptions.) For these reasons, employers should ensure that investigations are allowed to run their full course before closing them. 6.2 Procedure for Ending an HR Internal Investigation In the United States, there are no statutory procedures that private employers must follow when closing an internal investigation. However, certain steps are considered best practices. When an investigation is completed, employers should document the findings and rationale, communicate the outcome to the com - plainant and respondent in a limited and appropriate manner, implement any corrective actions, and ensure all records are preserved in line with retention require - ments – especially if litigation is possible.
If an investigation is ended early or not fully pursued (for example, due to insufficient information or a with - drawn complaint), the employer should document why it was closed and what steps had been taken up to that point. Even if a complaint is withdrawn, the employer may still need to investigate if the allegations raise legal or safety concerns. Regardless of whether the investigation is concluded or ended early, clear documentation and good-faith reasoning are critical to avoiding claims of retaliation, negligence or pretext. 6.3 Conclusion There are generally no US laws requiring a specific form for the conclusion of a private employer’s work - place investigation; employers may choose whether to document findings orally or in writing. However, it is considered best practice to prepare at least some written record of the conclusions, as this can be important for defending the investigation and result - ing decisions if they are subsequently challenged. Employers may use an abbreviated format, such as an executive summary, or a more detailed report out - lining the methodology employed, evidence reviewed, witness statements, credibility analyses, findings and, potentially, recommendations for action. The appro - priate format typically depends on the organisation’s practices, needs and risk tolerance. 6.4 Reports There are generally no legal requirements dictat - ing what must be included in a written investigation report for a private employer, but certain elements have become standard practice. The scope and depth of the report are usually determined in advance by applicable policies, or among HR, counsel and the organisation, either formally or informally. Most reports include the purpose of the investigation, a description of the investigative process (such as documents reviewed and witnesses interviewed), key findings and credibility assessments, and the investi - gator’s conclusions regarding whether the allegations are substantiated. Whether recommendations for future action are included varies: some investigators provide suggested next steps for individuals, teams or the organisation as a whole, while others intentionally
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