Webinar: How To Write Effective Investigation Reports
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For more information on writing reports, read our Ultimate Guide to Writing Investigation Reports: http://i-sight.com/resources/ultimate-guide-to-writing-investigation-reports/ Learn how to prepare effective investigation reports. During a one-hour webinar, Xan Raskin discusses the components of investigation reports, how to organize and structure the reports, common pitfalls to avoid and much more. To watch the full webinar recording, visit: http://i-sight.com/how-to-write-stellar-investigation-reports/
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Webinar: How To Write Effective Investigation Reports
- 1. How To Write Stellar Investigation Reports Xan Raskin, Esq., SPHR raskin@artixanconsulting.com Workplace Conflict Resolution Expert President, Artixan Consulting Group LLC
- 2. Introduction Xan Raskin Xan Raskin has spent her entire career solving workplace issues. As an experienced employment attorney and workplace conflict resolution expert for more than fifteen years, she has a 360 degree insight into the importance of effective workplace investigations, particularly the written summary or report. As part of her current business, Artixan Consulting Group, she conducts investigations as an objective third-party, trains human resources professionals on investigation techniques, mediates employment discrimination cases for the federal district court in New York, and provides workplace conflict resolution consulting and training to corporations across the U.S. Joe Gerard Joe Gerard is the VP of Sales & Marketing at i-Sight, a leading provider of web-based case management software for corporate investigations. He’s worked with companies like Dell, Coke, Allstate, BP and more than 100 others to implement improved investigative processes that leverage best practices and case management. Artixan Consulting Group 2012 Do Not Distribute Without Permission 2
- 3. Agenda • Importance of Workplace Investigation Reports • Best Practices for Organization & Structure • Avoiding Drafting Pitfalls • Retention of Investigation Reports • Communicating to Third Parties • Questions Artixan Consulting Group 2012 Do Not Distribute Without Permission 3
- 4. Legal Landscape • The statistics tell the story – 9947: Number of wrongful termination, harassment and discrimination charges filed by disgruntled employees with the EEOC in 2011. – $312 million: How much U.S. employers paid in 2011 to settle EEOC charges – 2 ½ years: Average length, from complaint to settlement, of an employment lawsuit. • Formal claims can come the complainant, as well as anyone adverse action is taken against as part of remedial action following the investigation Artixan Consulting Group 2012 Do Not Distribute Without Permission 4
- 5. The Importance of Workplace Investigation Reports • A workplace investigation report can be an effective tool for avoiding discrimination charges and litigation – Enables employer to take action, where appropriate, to remediate any misconduct – Provides a written record in the event of future misconduct by the same employee(s) to substantiate further action Artixan Consulting Group 2012 Do Not Distribute Without Permission 5
- 6. The Importance of Workplace Investigation Reports • A workplace investigation report can also be an effective tool for reducing the cost and duration of charges and litigation, or in limiting liability – Reduce potential for punitive damages – The goal should be that a judge or jury could conclude from the report that the employer took the issue seriously, looked into the concerns raised promptly and thoroughly, responded appropriately, and had a documented good faith basis for any actions taken during or on the basis of the investigation Artixan Consulting Group 2012 Do Not Distribute Without Permission 6
- 7. The Importance of Workplace Investigation Reports • Helps investigator remember the steps taken if questioned about it months or years later • Can be used as an effective negotiation tool in settlement discussions Artixan Consulting Group 2012 Do Not Distribute Without Permission 7
- 8. Poll POLL QUESTION #1 Artixan Consulting Group 2012 Do Not Distribute Without Permission 8
- 9. Characteristics of A Stellar Workplace Investigation Report • Organized so that anyone, internally or externally, can read and understand the report without having to reference other materials • Documents the findings of an investigation in an objective and accurate manner and provides decision- makers with sufficient information to determine whether to take further action. • Clearly indicates whether the allegations were substantiated, unsubstantiated, or whether there is information missing that makes such a determination difficult or impossible to reach Artixan Consulting Group 2012 Do Not Distribute Without Permission 9
- 10. Overview of Report Contents • How and when the incident or complaint arose that led to the investigation • When it came to the employer’s attention • When the investigation began and who conducted it • What were the allegations • What evidence was considered • What are the objective facts – tell the whole story Artixan Consulting Group 2012 Do Not Distribute Without Permission 10
- 11. Overview of Contents (cont.) • Apply the policies and procedures to the facts • What conclusions were reached • Include any mitigating circumstances or facts that do not support the conclusions • Explain any issues that could not be resolved during the investigation and why • What remedies were recommended (if any) • What remedies were implemented (if any) Artixan Consulting Group 2012 Do Not Distribute Without Permission 11
- 12. Poll POLL QUESTION #2 Artixan Consulting Group 2012 Do Not Distribute Without Permission 12
- 13. Introduction & Overview • How and when the problem or complaint arose and when it came to the employer’s attention – The identity, position and department of the employee(s) initiating the complaint and of the accused • The names and titles of the investigator(s) • Brief summary of investigative process used • When the investigation began and was completed • High level summary of the complaint allegations or incident that occurred Artixan Consulting Group 2012 Do Not Distribute Without Permission 13
- 14. Documentation of Interviews • Include list of individuals interviewed • For each, include: – Date of interview – Whether interviewed in person, telephonically, etc. – Title at time of interview • Note anyone who refused to be interviewed or could not be interviewed and why (e.g., leave of absence, terminated) • Note if any individuals were re-interviewed and when Artixan Consulting Group 2012 Do Not Distribute Without Permission 14
- 15. Documentation of Other Evidence Reviewed • List relevant documents reviewed as part of the investigation – Relevant policies – Pivotal documents related to the complaint, such as emails, performance reviews, org charts, salary history, etc. – Signed statements – Include the dates of the documents, if available, in the list on the report • Consider including important documents as attachments to the report Artixan Consulting Group 2012 Do Not Distribute Without Permission 15
- 16. Summary of Allegations & Factual Findings • Use a separate heading for each allegation followed by the response or summarize all allegations and then summarize response and other factual findings • Consider including chronology of events • Highlight any factual discrepancies Artixan Consulting Group 2012 Do Not Distribute Without Permission 16
- 17. Conclusions • Primary question to answer: Was there a violation of company policy and/or guidelines or not? • Apply policies to the facts • Decision-maker cannot make use of the report if there are conclusions but no explanations for the conclusions • If there is litigation, investigator will be expected to be able to articulate reasons for conclusions • Identify any issues that could not be resolved during the investigation and why Artixan Consulting Group 2012 Do Not Distribute Without Permission 17
- 18. Documenting Credibility Decisions • If a credibility decision has to be made, explain basis for it (how and why one person or description of events was more credible than another) • In most cases, there will be some corroborating evidence • If investigator absolutely cannot make credibility call, say so. – For example, “Both parties were credible in their statements and explanations for their actions. There is no evidence to support fabrication of the claim, yet no other evidence to support that the actions occurred. There are no eye-witnesses to the conduct, and the accused has denied engaging in the actions.” Artixan Consulting Group 2012 Do Not Distribute Without Permission 18
- 19. Recommendations for Corrective Action • Determine if corrective action is required – If no violation occurred, no corrective action is needed – If a violation occurred, corrective action recommendations should be designed to prevent any future occurrences of similar conduct in order to mitigate legal risk – Some organizations may desire recommendations for remedies for issues that are still problematic, even if they do not rise to the level of a violation. – Some organizations will ask that the investigator include recommendations for corrective action in the written report only after the report and conclusions have been reviewed by management • Best practice is to include what remedy was implemented and when – often as addendum to report Artixan Consulting Group 2012 Do Not Distribute Without Permission 19
- 20. Poll POLL QUESTION #3 Artixan Consulting Group 2012 Do Not Distribute Without Permission 20
- 21. Pitfalls to Avoid AVOIDING DRAFTING PITFALLS Artixan Consulting Group 2012 Do Not Distribute Without Permission 21
- 22. What’s wrong with these investigation report statements? • “While the Manager’s conduct was not discriminatory based on sexual orientation, his behavior created an environment that was hostile and unwelcoming in the workplace, particularly for Employee, who is gay.” • “The Manager discriminated against Employee because of her pregnancy.” Artixan Consulting Group 2012 Do Not Distribute Without Permission 22
- 23. Avoiding Pitfalls • Make findings that relate to policy, not conclusions of law – You are investigating whether there has been a violation of policy or rules, not the law – Only a Judge or jury decides whether there has been a violation of law, and only if lawsuit is filed • Do not make conclusory statements. Make findings of fact, and provide the facts that support the conclusion reached Artixan Consulting Group 2012 Do Not Distribute Without Permission 23
- 24. Avoiding Pitfalls (cont.) • A re-write for the last example that avoids conclusory statements could be: The evidence shows that Manager repeatedly interrupted and raised his voice towards Employee at meetings, criticized her work and removed her from the team on an important project. This conduct started shortly after Employee announced to Manager that she was pregnant. The evidence shows that the quality of Employee’s work was no different after she announced her pregnancy than before. Manager was unable to point to legitimate business reasons for removing the project from Employee’s responsibilities or provide objective reasons for criticizing her work. These facts supports a finding that Manager treated Employee in an adverse manner only after he learned she was pregnant, which is in violation of Company’s policy on discrimination and harassment prevention. Artixan Consulting Group 2012 Do Not Distribute Without Permission 24
- 25. Avoiding Pitfalls (cont.) • Be watchful for typos and errors – this is not just about professionalism, it’s about credibility • Spelling • Grammar • Quotations • Punctuation • Abbreviations • Tenses • Tone/Style • Redundancy Artixan Consulting Group 2012 Do Not Distribute Without Permission 25
- 26. Avoiding Pitfalls (cont.) • Understand the basics of privilege – and if investigation was being conducted at direction of counsel and/or under attorney- client privilege, include this language on the written report • Keep in draft format until ready to finalize • Label each version of a draft sequentially Artixan Consulting Group 2012 Do Not Distribute Without Permission 26
- 27. Poll POLL QUESTION #4 Artixan Consulting Group 2012 Do Not Distribute Without Permission 27
- 28. Retention of Investigation Reports • Retain ALL investigative materials – Do not discard drafts or working notes – Keep an organized file – Date your interview notes – Keep a chronology – Keep in confidential and secure location • Evidentiary sanctions are possible for willful destruction of investigative materials • Be familiar with your organization or client’s retention policies Artixan Consulting Group 2012 Do Not Distribute Without Permission 28
- 29. Communicating the Report to Management and/or Third Parties • Determine if draft report needs legal review prior to finalizing • Discuss and resolve any privilege issues with legal counsel regarding distribution of report • Consider whether verbal summary update prior to written report is advisable • Report does not go to complainant or accused – shared with management on need to know basis only • Ensure final copy is version provided to government agency/discovery process Artixan Consulting Group 2012 Do Not Distribute Without Permission 29
- 30. SAMPLE INVESTIGATION REPORT To: EMPLOYER From: INVESTIGATOR Date: ____________ Cc: EMPLOYEE PERSONNEL FILE PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT PREPARED AT THE DIRECTION OF COUNSEL _________________________________________________________________________________________ I. INTRODUCTION & BACKGROUND II. INTERVIEWS III. DOCUMENTS REVIEWED IV. COMPANY POLICY/GUIDELINES V. SUMMARY OF INVESTIGATION Summary of Allegations Summary of Factual Findings OR Allegation: Response: Allegation: Response: VI. CONCLUSION VII. RECOMMENDATIONS Artixan Consulting Group 2012 Artixan Consulting Group 2012 30 Do Not Distribute Without Permission Do Not Distribute Without Permission
- 31. Questions? If you have any questions, please submit them now. Thank you for taking the time to attend today’s webinar. If you have any questions about the information covered in the webinar, please contact: Joe Gerard Xan Raskin jgerard@i-sight.com raskin@artixanconsulting.com Artixan Consulting Group 2012 Do Not Distribute Without Permission 31
Editor's Notes
- EEOC is the Equal Employment Opportunity Commission – part of the US Dept of Labor. Administrative agency charged with administering and enforcing most of the federal employment discrimination statutes. The EEOC has developed regulations and compliance guidelines. It receives and processes charges, makes merit determinations, effects settlements and resolutions and prosecutes cases. Take away from this slide is that employee complaints can be costly, time consuming, have an impact on reputation and employee morale. So, how can a written investigation report have an impact on all of this?
- Focus on mainly investigations into claims of discrimination and harassment, as that’s my area of expertise. But recommendations for writing the report apply equally to investigations into other kinds of workplace misconduct -- employee theft or misappropriation, conflict of interest, etc. Employers will need to rely on investigation reports in those circumstances as well, for the same reasons – especially if an employee is terminated as a result of an investigation into other types of misconduct and brings a wrongful termination claim or related claims.
- In the unfortunate case that an act of discrimination does transpire in the workplace, an employer may be able to limit liability for punitive damages by providing sufficient evidence that a good-faith effort was made to enforce an anti-discrimination policy. Accordingly, the adoption of an anti-discrimination policy, the effective policing of the policy, and thorough and accurate documentation of all actions taken pursuant to the policy will save employers from significant costs associated with employment discrimination suits.Kolstad v. American Dental Association - (1999) Court held that an employer's good-faith effort to enforce an anti-discrimination policy in the workplace effectively shields the employer from punitive damages in employment discrimination suits. (reckless indifference required for punitive damages)
- Settlement discussions:“wrap it up in a bow”Flip side – the work product in an investigation can provide a virtual road map to the adversary of all the wrong doing uncovered in an organization – and it can also bring the investigation itself under scrutiny (for example, that investigation was curtailed to protect certain managerial employees).
- Nuts and bolts.Sample outline of report headers at end of presentation – key is that these issues are covered thoroughly, rather than any “magic words”
- Although these are the important overall categories to cover in a report, the company has to decide how detailed and specific it wants to document the investigation. Keeping in mind that all nonprivileged documents memorializing the investigation will likely be produced later in discovery if litigation results, there certainly can be drawbacks to taking very detailed and copious notes, especially if there are inconsistencies in those notes. On the other hand, well-drafted notes regarding the company's investigation of the alleged harassment or discrimination, as well as a description of the reasons it took the employment action, can protect the company from future litigation, as we discussed.
- Make sure policy is the one that was in effect as of the date of the violation/complaint. Including the relevant policies and documents may be time consuming, but ensures they are all in the same place and easy to access if and when litigation or an agency charge results, which could be years later. Some investigators and organizations prefer that the investigation report be a stand-alone document without attachments. In those circumstances, consider including the text of a particularly relevant document in the body of the report.
- Other option: Detail each individual’s interview, followed by overall summary of factual findings. Harder to get through – unless you include an “executive summary” in front of it
- Be complete – don’t avoid the tricky issues or be afraid to acknowledge that there’s a gray area. Already been a webinar on determining credibility so won’t spend too much time on it here other than to focus on documentation of it.
- Has the client requested this from the investigator? -This may be part of an investigator’s responsibilities in some organizations but not others. -Understand expectations before including recommendations for remedial action in a report, as this can create potential liability if the employer choosesnot to follow them. Many investigators only make general recommendations in the report, rather than specific punitive or disciplinary actions (e.g., terminate the employee) if an allegation is substantiated. You could recommend that the higher authority take “appropriate action to hold the subject accountable.”Corrective action recommendations should be aligned with past practice for similar violations, if possible. Was the incident an isolated incident or does it reflect a pattern of inappropriate behavior? Was the incident severe enough to objectively create a hostile work environment? Is the person that engaged in inappropriate workplace behavior a supervisory employee? Has any supervisory employee failed to report or act on known or suspected harassment? What were the prior relationships between the employees involved?Explain WHY recommendations are what they are. No violation but recommendations for change: Consider having a verbal discussion about whether or not to include these types of recommendations in the report. If included, make clear that these are not a remedy for any violation but for best practices, etc. Could include structural changes, clarification/communication of policies to clear up misunderstandings, etc.
- Plaintiffs attorneys will use these kinds of mistakes to question credibility, raise whether an investigator who is careless in drafting a report could have been careless in conducting the investigation. Abbreviation – Make sure any internal abbreviations are spelled out (department names, for example) so an external party would understand (and because these often change over time)Tone – Avoid emotional, judgmental or value-laden words to describe events.Use active voice to let the reader know who performed the action. Set the right level of formality. Quotations – Be careful. If you didn’t record the interview or it isn’t directly from a signed statement, avoid using direct quotations – it can come back to haunt youTenses – be consistent (e.g., third person or first person). Style – Use a simple, direct approach. Redundancy – To make the report as tight as possible, eliminate these. For example, you can say three eye-witnesses who were interviewed confirmed the statement was made, rather than listing it out three separate times for each eye-witness.
- Could spend an entire day talking about privilege in workplace investigations – just going to spend a few minutes on it here.Privilege applies within an organization to communications between an individual and an attorney (functioning as an attorney) where the individual made the communication at the direction of superiors in order to obtain legal advice. In addition, communications among nonattorneys may be privileged if made at the direction of counsel to gather information to aid the attorney in providing legal advice. This applies to a non-attorney professional (such as an accountant or investigator) retained to assist counsel – called the Kovel Engagement in New York. While privilege is often waived over the report in subsequent litigation – as its in the employer’s best interest to show that it did look into the issues raised, you want to try and preserve the company’s control over when to waive it – so document should also be clear that it’s being prepared at the direction of counsel (or being prepared at the prospect of litigation). Rubber stamping the document this way isn’t enough – usually law dept will direct the investigation be completed, etc. The EEOC or plaintiff may argue that the company waived it’s privilege if an in-house attorney assumed the role of investigator, and therefore ALL investigatory material, including notes, emails and communications with the company about action to take in response to the investigation findings may be discoverable. Waiver arguments typically occur after an employer seeks to introduce evidence that the investigator gathered during the investigation either in response to litigation or a charge of discrimination.Several courts have stated that employers cannot assert the attorney-client privilege while simultaneously relying on the investigation evidence and/or findings in defense of a discrimination or harassment claim. Instead, many courts have held that the attorney-client privilege is waived once the employer takes the position that it took "prompt and corrective action" based on the investigation findings and recommendations made by its in-house counsel.Indeed, these courts have taken the position that the employer "cannot have it both ways," when it seeks to present evidence that it investigated an employee's complaint and took corrective action based on the investigation findings, but claims the attorney-client privilege when the plaintiff or enforcement agency makes discovery requests regarding the investigator's communications with the employer regarding his or her findings and recommendations.To avoid waiver arguments, the employer must demonstrate that the investigator's materials and findings were unmistakably isolated from the provision of any legal advice to the employer regarding the complaint or proposed actions to take in response to the investigation findings. Moreover, some courts have held that the attorney-client privilege is not waived when the corporation and in-house counsel investigator communicate about strategy well after the investigation ended and action was taken in response to the findings, and now the employer is responding to litigation that was not pending at the time of the investigation. Thus, segregation of the investigation and any legal advice based on those findings is key to preserving the attorney-client privilege.There are some courts, but not all, that recognize a self-evaluative privilege (rather than attorney client). Self-knowledge in order to comply with regulations, laws, etc. may be protected from disclosure. OR (small pitch) – use of external expert investigators who perform their work at the direction of the in-house counsel avoids the issue altogether! Majority of my referrals for investigations come from an organization’s outside employment counsel who do not want to risk being conflicted out of a subsequent litigation (or deal with the complicated privilege issues) by doing the investigation themselves.
- Attorneys know what to look for and they will ask for it! Under new federal e-discovery rules, draconian penalties can result if a company permits the destruction or deletion of relevant documents, such as investigation notes, after the company has notice of a potential claim. To avoid such a possibility, it is generally advisable to keep any documents related to an investigation for a minimum of two years following the relevant employee's termination and/or separation from the company. If the company reasonably anticipates litigation, either by receipt of a formal charge or by a verbal threat by an employee, all potentially relevant documentation relating to either the events or the employee should be preserved, even if the company maintains a document destruction policy. When in doubt, the safest practice is for the company to preserve the relevant documentation, including any investigation notes.Confidential location – NOT personnel file. However, keep in mind that some states, such as Illinois, require employers to keep certain documentation relating to an employee's discipline, probation, or termination in their personnel file. Therefore, in certain circumstances, it will be important to maintain the documentation memorializing the results of the investigation or any disciplinary action taken against an employee in the disciplined employee's personnel file. This is also helpful from an internal perspective – managers and HR reps change – having documentation in the disciplined employee’s personnel file provides information for future decisionmaking re: career, and/or if further issues occur down the line.
- Legal counsel can help identify legal issues as well as help determine whether certain facts meet certain legal standards. Legal counsel can also help identify what forms of corrective action may be legally appropriate.If conducted under legal privilege, there may be restrictions on how report is transmitted to others internally or externally (e.g., via the attorneys)