Investigative Reports – One Size Does Not Fit All
It should come as no surprise that different employers have different investigative needs. Thus, good investigators should be prepared to provide some flexibility in the form of the final written work product they provide. Sometimes an employer needs a highly-detailed, comprehensive investigative report. Other times, an executive summary is preferable. In other cases, the client may desire separate reports. In any case, investigators should give some thought to how their work product is likely to be used and what sorts of options they can offer to an employer.
So what are the differences? Typically, a comprehensive investigative report contains detailed information about the methodology, the factual background that sets forth context, the allegations and responses, the witness statements, with a thorough analysis and findings section. By contrast, an executive summary focuses on the methodology (important to show the investigator’s good faith process) and the analysis and findings.
The following provides some guidance and examples of situations where an employer may want to entertain multiple options.
Example 1: Three complainants each make identical allegations of serious misconduct against a single Respondent. There are 10 witnesses to the alleged misconduct and 20 to 30 pages of documentary evidence. In this case, the employer may want a comprehensive investigative report so that if the allegations are sustained, they have as much detailed information as possible at their fingertips so they can be confident in supporting whatever action they choose to take based on the report.
Example 2: The same situation as Example 1, but the allegations involve only minor alleged misconduct that may result in lower level discipline or training, but likely not termination or litigation. In this case, the employer may want an executive summary – without detailed witness statements – in order to minimize the potential for future conflict and retaliation. For example, in the public sector, an employee who is disciplined may have certain rights to review the evidence supporting any proposed disciplinary action. Thus, if a Respondent (against whom findings are sustained and minor discipline is imposed) is able to see the statements of individual witnesses, this may breed resentment between the Respondent and any witnesses who testified against the Respondent’s interest.
Example 3: A single Complainant makes distinct and different allegations of varying levels of misconduct against four separate Respondents. In this case, the employer may want four separate reports. In the event that allegations are sustained against only some Respondents, the employer may not want all of the allegations (especially if they are salacious or unfounded) in a single Report or Executive Summary that they might later want to produce in litigation. Producing a single Report at litigation might mean that the details of unsustained, but nonetheless damaging allegations against some of the Respondents could become public knowledge, along with the identities of witnesses who testified against those Respondents.
Example 4: The same situation as Example 3, but many of the allegations are intertwined and some must be considered together to develop a complete understanding of the investigation. In this case, the employer may want multiple reports and/or a single report available in different formats for each Respondent. If there are serious allegations sustained against Respondent A, but only minor allegations sustained against Respondent B, and both appeal the discipline, the employer may not want the details of the Respondent A’s misconduct to become known to Respondent B, or vice-versa. The employer may also want to provide an Executive Summary to Respondent B as a way of limiting the details disclosed to Respondent B that are not strictly relevant to their appeal. Depending on the comparative gravity of the allegations, the employer may provide an even more truncated version of an Executive Summary that contains only the specific evidence forming the basis for a proposed disciplinary action.[1]
The following are some questions to ask when considering whether multiple reports or different report types might be more suitable than a single Comprehensive Investigative Report:
Are there multiple Complainants, Respondents, or allegations?
Is there a significant disparity in the gravity of individual allegations
To what degree are the underlying facts undisputed?
To what degree are the underlying facts sensitive in nature?
To what degree do multiple allegations arise from a common set of facts?
Are there credibility or bias issues that are best illustrated by considering different allegations or responses together?
To what degree does a finding on one allegation serve as the premise for a separate allegation?
Is it possible that some parts of the investigation can be resolved more quickly than others?
Is termination a likely potential outcome?
How likely is it that those involved in the investigation will need to continue to work together?
Will the employer want or need to publicize information about the investigation or its findings?
Is there a disparity in the likelihood of litigation amongst the various parties or allegations?
Are employees entitled to receive information about the investigation?
Are there allegations that are conceptually distinct that can be investigated or considered separately without undermining the thoroughness of the investigation of other allegations?
The attorney investigators at Van Dermyden Makus are experts who have been seated on either side of the bargaining or Skelly table. Because we know how our end-product will be used, that diversity of experience gives us the foresight to provide flexible investigative solutions that meet the unique needs of employers.
[1] Although public employers traditionally expect some form of a written work product, an oral debrief is still an option. See our prior blog posts about this option.
