The Value of a Written Report in Workplace Investigations
When an employer engages a third-party attorney investigator to look into an employee’s workplace complaint, budgetary considerations are often one of their key priorities. Employers may wonder: Can we save money and skip a written report when the investigation concludes?
This is a common question that we hear in our investigations practice, and the answer, in most cases, is no.
Here's a breakdown of the most frequently asked questions on the written investigation report, and reasons why that written report can be one of the most valuable outcomes of the investigation.
What exactly is a workplace investigation report?
A workplace investigation report is a written summary prepared by the investigator after they finish gathering evidence, conduct interviews, analyze the issues, and determine factual findings. It documents what the investigation covered and what findings were reached. The report is basically the story of what happened and what the investigator concluded, based on a preponderance of the evidence. It also documents the methodology the investigator followed and helps demonstrate that the investigation was thorough and impartial.
What does a good investigation report include?
A high-quality report from a third-party attorney investigator should contain:
The scope of the investigation: The scope clearly defines what was investigated, i.e., what questions the investigator was tasked with answering.
A summary of the evidence: A list of people interviewed and documents reviewed.
Credibility assessments: If accounts differ, how did the investigator evaluate them?
Findings of fact: What likely happened, based on a preponderance of the evidence. The findings should align with the scope.
The content should be laid out clearly and the language should be neutral, objective, and easy to follow.
Why do we even need a written report?
It protects the organization: If there’s ever a legal challenge, the report shows that the organization took the complaint seriously, and handled it promptly and properly.
It creates a record: Leadership and HR may change, but a written report preserves what was found and documents the basis for the findings.
It informs next steps: Whether it's discipline, training, or policy changes, a report helps the employer respond to the situation with clarity.
When is a report absolutely critical?
Whether or not a report is truly critical will depend on the circumstances. We recommend that our clients consult their employment counsel regarding the decision to request a written report. However, some of the situations in which a written report is more likely to be essential include:
Allegations of harassment, discrimination, or retaliation.
Investigations likely to result in termination.
Complaints involving senior executives.
When litigation is likely or ongoing.
When outside agencies like the Equal Employment Opportunity Commission (EEOC) or California Department of Fair Employment and Housing (DFEH) are involved.
How can employers actually use the report?
The report helps resolve the investigation by clearly spelling out the investigator’s findings. Beyond this, the investigation report also helps:
Guide disciplinary decisions.
Identify trends or systemic issues (for example, Maier Law Group can provide a workplace culture assessment in our investigation reports for employers who request one) and consequently, improve workplace culture by addressing root causes of contention.
Guide updates to training programs and organizational policies.
Demonstrate compliance and good faith efforts to investigate if later legally challenged.
Is the report covered by attorney-client privilege?
Employers should be cautious about the scope and applicability of the attorney-client privilege as it relates to investigation reports, and this is where working with a third-party attorney investigator is helpful. Some factors that help maintain attorney-client privilege over the report include:
The report being prepared under the direction of your own legal counsel.
The report being clearly labeled as “Privileged & Confidential – Attorney-Client Communication”.
Maintaining precautions against waiving privilege, by being thoughtful about how the report is saved and shared, i.e., access to the report should be strictly limited to only those who need to read it (e.g. HR, legal counsel, executive leadership).
If you’re going through the effort (and expense) of hiring a third-party attorney investigator, a written report gives you the clearest return on that investment. It captures the work done, supports sound decision-making, and helps prevent future issues. We suggest that you discuss the written report with your Maier Law Group investigator and with your own employment counsel, if applicable. We can always tailor the report to a more manageable (and budget-conscious) length, should you need us to do so.
Maier Law Group regularly assists employers with workplace investigations and DEI trainings, as well as workplace mediations. Please reach out if we can help to further explain our investigation process.
Author: Margarita Wear, Partner. Margarita conducts workplace investigations, counsels clients managing internal investigations, and provides advice and counsel to businesses of all sizes. Margarita’s investigation practice includes both workplace and educational institution (Title IX) investigations, and she has completed a 40-hour mediation training.
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.