Cross-Border Catch-Up: Conducting Effective Global Workplace Investigations, Part 1

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Patty Shapiro: Hi, and welcome to the Cross-Border Catch-Up, the podcast for global employers who want to stay in the know about cutting-edge employment issues worldwide. My name is Patty Shapiro, and I’m here today with my colleague, Kate Thompson. We’re cross-border attorneys here at Ogletree, and today we’re going to kick off a three-part series on global workplace investigations. In this miniseries, we will go over preparing for the investigation, conducting the investigation, and then common pitfalls. There’s a lot to get through, so let’s dive in. Kate, let’s start here. Why are workplace investigations so important for multinational employers?

Kate Thompson: Great question, Patty. So, workplace investigations protect both employees and the company. They preserve company integrity, they promote a safe and effective workplace, and when they’re done right, they serve as a key legal defense. A credible, consistent investigation process also helps to build employee trust and signals that the organization values accountability.

Patty Shapiro: What would you say are some of the foundational challenges that companies face when conducting investigations across borders?

Kate Thompson: So, there are quite a few. First, you’re navigating conflicting legal frameworks, data privacy and protection regimes really vary dramatically. So, think about the GDPR in Europe versus more relaxed rules elsewhere. Employment and labor law variations come into play as do whistleblower and retaliation protections, which of course, as you can imagine, vary by jurisdiction. And don’t forget, attorney-client privilege and work product protections also look different around the world.

Patty Shapiro: Setting aside the legal issues for just a minute, are there cultural considerations that companies should be thinking about?

Kate Thompson: Yes, absolutely. And this is something that’s often overlooked. You need to consider workplace norms around authority, hierarchy, and speaking up. So, for example, in some cultures, employees may be reluctant to report issues or speak candidly during interviews because of how they view authority. Language barriers and translation issues, those can also create misunderstandings. And you need to understand the dynamics of local HR and legal teams. They ultimately might have different approaches than what headquarters expects.

Patty Shapiro: Let’s shift gears into the actual preparation. What should companies do before an investigation even begins?

Kate Thompson: So, the first step that’s really critical is to identify all of the applicable jurisdictions at play. So, determine what country’s laws and regulations are going to apply to the investigation, and then assess potential conflicts between those requirements. So, for example, what you can do with employee data in the U.S. is potentially going to be completely prohibited under the GDPR.

Patty Shapiro: That raises a really practical question, what happens when you have employees in multiple countries involved in the same incident? Say the complainant is in Germany, the respondent is in Singapore, and you have witnesses in the UK. How do you figure out which law applies?

Kate Thompson: Yeah, this is a really great question, and this is one of the trickiest aspects of cross-border investigations. Honestly, there’s no simple answer here. So generally speaking, the law of each employee’s location will govern how you interact with that employee. So, the German employee’s interview rights, data privacy protections, and works council requirements, those are going to be governed by German law. While the employee located in Singapore, their rights in general will be governed by Singapore law. So, you can’t just pick one jurisdiction and apply it across the board. And I think that now following the COVID pandemic, we’ve seen a large uptick in these investigations where you have employees that may be working remotely from other jurisdictions and now companies need to determine, let’s say that we’re based in the U.S., but we have an employee in Germany or Singapore, like your example, Patty, you really have to take into account all of these different laws and considerations because they’re going to vary drastically by jurisdiction.

Patty Shapiro: That’s a really great point, that some companies may be subject to this conundrum even if they didn’t intend to, even if they’re not multinationals, because employment law is generally territorial. What if the laws directly conflict? So, for example, one country requires you to share evidence with the respondent, but another country’s data privacy laws prohibit the transfer.

Kate Thompson: Yeah, that’s another really, really good point. And that’s where it starts to get pretty complicated. And it’s really important that in these situations that you are engaging with your counsel really from the outset, because in some scenarios you may need to find creative solutions like conducting separate interviews with a locally compliant process. You might need to anonymize or redact certain information before cross-border transfers. You basically undergo the cross-border transfer or structuring your report in a way that satisfies disclosure requirements in one jurisdiction without violating privacy rules in another jurisdiction. Sometimes you simply can’t do something in one country that you could easily do in another, and you just have to be flexible, and you have to adjust your approach accordingly. The key here is identifying these conflicts early so that you can plan around them rather than discovering them mid-investigation, which obviously we want to avoid those situations at all costs and why planning is really critical.

Patty Shapiro: That’s a fair point. So, if step one is identifying these conflicts and putting together a plan, what happens then?

Kate Thompson: So, after you’ve identified these jurisdictions, then you really want to determine the investigation scope. So, define the nature and the scope of the allegations that need to be investigated, and then you want to consider your privilege strategy. So, consider whether legal counsel should be engaged to help maintain attorney-client privilege and work product protections over the investigation materials. And this is really critical because as I mentioned at the outset of this session, privilege rules are going to vary significantly across jurisdictions. So definitely something that is important to keep in mind at the outset of the investigation.

Patty Shapiro: What about internal resources? Do you think that company should review anything before launching into the investigation?

Kate Thompson: Yes, definitely. It’s really important to review your internal policies. So, you’ll want to take a look at applicable company handbooks and policies regarding how the company typically deals with handling complaint procedures before they actually commence an investigation. Again, these policies and procedures are likely to vary by jurisdiction because of how the laws vary by jurisdiction. So, there’s really no one-size-fits-all approach here. And you need to understand whether you’re dealing with work rules versus standalone policies and what procedural differences ultimately exist in each location.

Patty Shapiro: I imagine assembling the right team is also important.

Kate Thompson: Yes, of course. It’s actually essential. So, you need to assemble the right team early. That means coordinating with your legal, your HR, and your compliance departments. So, in some jurisdictions, you’ll also need to consider works council and employee representative bodies. We spoke about this briefly with Germany earlier in our podcast, but failing to consult with them can actually derail your entire investigation.

Patty Shapiro: One more thing before we wrap up this episode of our miniseries. Should companies ask employees whether they want to proceed formally or informally when they make a complaint?

Kate Thompson: So, this is pretty nuanced. In some countries like Australia, Singapore, and the UK, you can ask the complainant whether they wish to proceed formally or informally, but you really need to be careful to avoid any perception of discouraging a formal grievance. The employee should be made aware of both options, that they’re available to them, and then that if they do choose the formal process, it won’t result in any type of adverse treatment to them or retaliation.

Patty Shapiro: That’s helpful, Kate. Any final thoughts on preparation?

Kate Thompson: Yeah, I’d say that the biggest takeaway here is just to build a cross-border investigation playbook before issues arise. You want to invest in relationships with trusted counsel so that you’re not scrambling when a complaint comes in from an employee. And ultimately here being prepared is half the battle.

Patty Shapiro: I couldn’t agree more, Kate. Thanks so much for walking us through these pre-investigation considerations. That’s about all the time we have for this episode but join us next time when we will discuss conducting the investigation. Of course, follow us to stay in the know about cutting-edge employment issues worldwide.

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