Background

The question of whether or not to provide recommendations at the close of a workplace investigation is a complicated one. Many seasoned workplace investigators trained by organizations like AWI learn that making recommendations may compromise an investigator’s ability to be impartial. Others argue that the idea that investigators become biased simply as a result of making recommendations is far-fetched and, if adhered to, compromises the opportunity to create effective change in the workplace. It’s hard to dispute that investigators have a unique ability to offer effective suggestions at the close of an investigation if they are willing. Investigators garner deep knowledge of the issues in dispute and have a birds-eye view of the problems they explore since they speak to parties on all sides of the issue.

Recommendations in workplace investigation reports

In the debate over making recommendations in a final report, a guiding principle to consider is that the scope and intended purpose of the workplace investigation should be clear to both the investigator and the employer from the get-go. External investigators, working as either attorneys or licensed investigators, should clearly communicate with the employer early on to determine whether they have been retained to merely fact-find or to provide recommendations. Ultimately, the employer should be the one to decide whether or not a final written report will include recommendations for action following the investigation.

In fact, employers often hire external investigators to take advantage of their skill and capacity to provide recommendations for appropriate actions following significant misconduct or conflict in the workplace. If conducted by an experienced investigator, an investigation and the subsequent report can provide a strong factual basis for any disciplinary action, and sometimes unearth cultural issues the employer may want to address in order to build a healthier workplace and avoid litigation. Providing recommendations must be carefully balanced, however, with the external investigator’s knowledge of the broader implications that her recommendations may have on the business. Oftentimes, the scope of the investigation limits the investigator’s knowledge of the overall business and the impact of certain recommendations.

While the time and money spent on investigations often leads employers to desire recommendations and suggestions for a path forward, this desire needs to be addressed at the outset. Such considerations should include discussion of a number of questions: What consequences will the employer face if they choose not to follow the recommendations of the investigator, and instead follow a different course of action? How will recommendations look if the investigation report is disclosed to any of the individuals involved in the workplace conflict, or if the report is reviewed by a court, jury, or government agency? The goal of a report, ultimately, is to provide a factual basis for good faith actions taken by the employer. Whatever the employer and investigator decide in their initial discussion, no recommendations should compromise that factual basis.

Non-prescriptive advice after an investigation

A perhaps more complicated question is whether an investigator might provide informal, non-prescriptive, and more open-ended verbal advice to an employer at the close of an investigation. In cases where the investigator and employer have determined that the investigator will hold true to the role of neutral fact-finder, and omit any recommendations from the report, the employer may still have indicated willingness to hear the investigator’s general insights on possible next steps.

An investigator often does hold such insights, even when a finding or claim is unsubstantiated. For example, if the investigator could not substantiate a claim of workplace sex discrimination, she may still see the reasons that such a claim has arisen. She may believe that some follow-up steps might be helpful: perhaps an additional workplace harassment prevention training, or coaching for the respondent. (Even if the investigator could not substantiate the claim that the respondent sexually harassed another employee, there may be underlying issues to address in the respondent’s leadership: clear communication, compassion, and inclusivity, for example.)

Offering such non-prescriptive advice – or really, simply an array of options – allows the investigator to help the employer prevent future litigation and make their company a happier place, all while staying true to her neutral fact-finder role.

Author: Diana Maier, Founding Partner & Kristi Tremble, Of Counsel

Please contact the team at Maier Law Group if you would like to learn more about our workplace investigations practice. We invite you to reach out to us at info@maierlawgroup.com for more information.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.