Checklist: Teach Investigators to Avoid Defamation

All persons involved in conducting an internal investigation should be advised to follow these tips to avoid the risk of defamation liability:

• Never discuss a workplace investigation into employee misconduct with anyone who does not have a legitimate interest in or duty to receive the information.
• Ensure that all discussions of the matter are held in a private area and cannot be overheard.
• Do not send e-mail or leave voice mail that discloses details of a workplace investigation.
• Do not seek information or make statements that go beyond the scope of the investigation.
• Caution all persons involved in the investigation of the risk of personal defamation liability if they make malicious or false statements during an investigation or discuss the matter with others.
• Do not draw any conclusions about the matter before all the facts are in.
• Develop a complete and accurate written record of all investigative interviews; when possible, obtain written statements from persons interviewed.
• Ensure that the final determination is solidly based on the facts in the record. Do not portray the conduct as worse than it was.
• Ensure that all records concerning the matter are kept confidential. When an investigation is completed, all records should be kept in a separate confidential file --not in the investigated employee's personnel file.
• Do not broadcast the results of the investigation as an example to others or as a training tool.