Excerpted from a Levy Employment Law LLC Blog by Tracey Levy
One of the thorny questions that eventually arises in workplace investigations is how to memorialize the findings. Is it sufficient to save the notes from interviews in a file? How about a letter notifying key parties the investigation has been closed and the concerns were substantiated? Perhaps an executive summary would be helpful to memorialize the concerns and the final conclusions? Or should you also capture the factual information considered in reaching those conclusions?
Retaining Notes
Yes, notes should be saved from all interviews. So should any other documents, photos, recordings, video or other electronic communications. Those items are important to reflect the issues raised, the information gathered and the existing support for the concerns.
Notifying Parties
Yes, you should notify the key parties on whether the concerns raised were substantiated. It is even more helpful if you inform all parties – not just complainants and respondents – the investigation has closed. Such communications may be verbal or written, depending on your organization’s practice and determined by the guidance of counsel.
It is most important for these communications to actually occur. It provides closure to the parties. They should know the issues were considered and appropriate actions taken. You thereby enhance confidence in your process — that concerns raised do not fall into a “black hole.” You also stem the tide of gossip.
If there is no follow-up, people will wonder what happened with the investigation. Worse, people will conclude because they heard nothing the organization did nothing with the information provided.
Drafting an Executive Summary
It is helpful to prepare an executive summary of the investigation. The executive summary should:
- • Outline the concerns and timeline;
• Identify who was interviewed and their job titles;
• Identify what documents were reviewed; and
• State the conclusions and findings in support of those conclusions.
The executive summary is a road map. Decisionmakers can reference it when considering appropriate actions. Should a future concern arise involving the same parties, investigators can reference the summary to understand the scope of the case.
By definition, an executive summary lacks extreme detail. It includes limited information on the conflicting accounts and how credibility was assessed, and it most certainly cannot “stand on its own” should the complaint proceed to an adversarial posture. For that level of detail, you will need a written report.
Advantages of a Written Report
A written report should start with an executive summary that serves as a road map to the issues and conclusions. The written report goes further, providing a full narrative of what concerns were raised, what the interviewees said, what evidence was relevant to the concerns, what conclusions were reached, and how those conclusions were derived.
A written report reflects the investigator’s findings and analysis, and thereby supports the conclusions. It memorializes a considered process and demonstrates due diligence by the organization.
A written report offers other benefits. Sometimes an organization may disclose portions of the report to a complainant’s attorney to further settlement discussions. Other times, the persuasion is internal, and the report may be impactful in garnering support from senior leaders for changes within the organization.
Workplace investigations, done properly, take time and care. Organizations would do well to ensure they have memorialized their efforts in some fashion. A written record can inform future actions and it can protect the organization during litigation.
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