USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
able contract with the employer, such as an offer letter or employment agreement. If a plaintiff claims an employer breached an employment agreement in conducting an internal investigation, the plaintiff must show by a preponderance of the evidence that (i) the parties formed an enforceable contract; (ii) the employer breached a term of that contract; and (iii) the plaintiff suffered damages because of that breach. 6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation There are no hard-and-fast rules as to when an inves - tigation must end. If the accused admits the conduct or there is conclusive evidence that he or she engaged in the misconduct alleged, the investigation may close quickly. However, if the investigation involves serious disputed misconduct involving multiple witnesses or the employer has a reporting obligation, the employer should conduct an investigation until it can make rea - sonable, good faith decisions regarding whether the misconduct occurred and how it should be addressed. 6.2 Procedure for Ending an HR Internal Investigation After the investigation is closed, the employer should follow any procedures required by an employment agreement, such as an employment contract or CBA. For example, the termination for cause provisions of an executive agreement may require the employer to provide a cure notification prior to a termination for cause. If contractual requirements are not implicated, it is advisable for the employer to notify the employees who participated in the investigation that it has con - cluded. In confirmed harassment situations, employ - ers should explain the results of the investigation and the steps that are being taken by the employer to address it to the complainant. 6.3 Conclusion Again, unless a report is required by a CBA or other contract, the employer has the discretion to determine the form, if any, of the report of the investigation. If it is likely that the investigation will be challenged by the complainant or the accused, it is advisable for
the investigator to draft a written report and for the employer to explain to impacted employees the jus - tifications for the actions it is taking in response to it. As discussed in 6.4 Reports , to show the evidence considered by the employer, the written report should describe the steps of the investigation, the evidence considered and the basis for the findings in it. 6.4 Reports The last step in the investigative process is to prepare a report and close the investigation. Depending on the circumstances, a report can be a formal written document, a bulleted summary, a slide deck or an oral presentation. Regardless of format, the report typically should address: • the allegations investigated during the investiga - tion; • the steps taken in the investigation; • the evidence collected and considered; • factual findings concerning the key disputed issues; • any limitations on the investigation (eg, witness resistance or unavailability); and • where appropriate, any remedial actions recom - mended. 6.5 Information Unless required by a contract, an employer does not have to provide information to the complainant or the accused concerning the results of the investigation. However, discussing the results of the investigation with the complainant will increase the likelihood that he or she will accept the results, regardless of the employer’s findings. If the employer is taking action against the accused, the employer should, at a mini - mum, explain the justification for the termination. In reporting on the results of investigations, however, employers need to be sensitive to the confidential information of other witnesses included in the report. 6.6 Communications to Authorities As explained in 2.2 Communication to Authori- ties , employers may have an obligation to report the results of investigations to authorities. If the investi - gation identified potential criminal misconduct (eg, a sexual assault), the employer may have an obligation to report the conduct and should advise the victim of
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