SHRM26 Debrief · Legal & Compliant HR · #2297

Litigation-Ready Investigations: Documentation and Decisions That Hold up Under Scrutiny

with Erin Allen

& Raeann Burgo

▶ Watch on the SHRM portal ~66 min, distilled

Workplace investigationsEmployment litigationHR documentation

"You need to treat every investigation or every complaint like it might end up in the courtroom."

What it was about

You never know in advance which workplace complaint will end up in litigation, so every investigation must be conducted as if it will be scrutinized in a courtroom. That means HR must operate objectively, be thorough, pick the right investigator, act promptly, and document properly.

By the numbers

50%

Percentage of an experience a person forgets within one hour, cited to justify investigating promptly

70%

Percentage forgotten after one day, per the same memory-decay research

25%

Percentage of what happened a week ago that people generally still remember, underscoring the need for prompt interviews and thorough notes

Key notes

Define the exact scope of the complaint before starting, and consciously check yourself for confirmation bias, the halo effect, and anchoring effect as you investigate.
Interview the complainant first (never skip them for a secondhand account from their supervisor), then use open-ended, general-to-specific questions rather than leading questions.
Always close every interview with a standard closing bucket of questions: What else should I know? Who else should I talk to? Have you had enough time? Do you have documents, texts, or emails? Have your answers been truthful and complete?

The contrarian takeAsking an AI chatbot to help draft or write up investigation notes is explicitly discouraged as a serious legal liability. The notes and any chatbot prompts or outputs are discoverable in litigation and can become damaging evidence, running counter to the growing default assumption that AI tools can safely assist with any HR documentation task.

Take this back Monday

Do this for your team

Add a standard closing question set (What else? Who else? Enough time? Any documents? Truthful and complete?) to your next investigation interview.

Say this in your next leadership meeting

We investigate every complaint as if it could end up in court — objective, prompt, and documented like a fact-finder, not a friend.

Watch out for

Writing irrelevant, biased personal impressions into investigation notes (e.g., 'Jim is one of our top salespeople and everyone likes him' or 'he seemed totally credible to me').
Skipping the complainant and relying on secondhand information from a supervisor instead of interviewing them directly.
Failing to follow up on leads that surface mid-investigation (e.g., not circling back with a witness who was 'hard to follow,' missing an entire eyewitness like Claire).

Fun fact · Erin Allen

Before practicing employment law, Erin Allen worked as a journalist — and has since been interviewed on career development by The New York Times and BBC News.

If this landed, see these

↳ Go deeperDetecting Deception: Practical Skills for HR ProfessionalsAdds the research-backed interview science for spotting deception during those same investigations.⇄ The counterpointWhen Employee Relations Isn't Enough: A CLEAR Framework for Protected Class InvestigationsDisagrees on what matters most: structure beats picking a gifted investigator every time.✦ The unexpected oneAI & HR: Enhancing Opportunities Responsibly in a New Era of WorkSame warning, bigger canvas: AI governance is racing to catch up with tools already inside HR.