Cross-Border Catch-Up: Compliance Strategies in Global Workplace Investigations, Part 2

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Patty Shapiro: Welcome back to the Cross-Border Catch-Up. I’m Patty Shapiro, and I’m here again with my colleague, Kate Thompson. Today, we’re continuing our three-part miniseries on global workplace investigations. In our last episode, we talked about how to prepare for a global investigation. Now, Kate, let’s discuss what happens when you’re actually conducting the investigation. What’s the first thing to keep in mind?

Kate Thompson: Thanks, Patty. So, the first thing is timeliness. You need to commence the investigation promptly within a reasonable time after the complaint is filed. But here’s the thing, what reasonable time means very significantly by jurisdiction, and some countries have very specific deadlines that you really need to be aware of.

Patty Shapiro: Can you give us some examples of those?

Kate Thompson: Yeah, definitely. So, let’s start with one of the most stringent deadlines that I’ve seen. So, in the Philippines, gender-based sexual harassment complaints that are lodged by the victim themselves, those have to be resolved within 10 days from the employer’s receipt of the complaint. That’s not just starting the investigation, that’s actually resolving it within 10 days.

Patty Shapiro: 10 days? That’s incredibly tight. How is that even possible for a complex investigation?

Kate Thompson: It’s challenging, no question. It really underscores why preparation is so important. We talked about that a lot during the first part of our miniseries, but you need to have your processes and your team ready to go before a complaint comes in. For other types of complaints in the Philippines, the standard is still within a reasonable time, but that sexual harassment deadline is a real outlier.

Patty Shapiro: What about other jurisdictions?

Kate Thompson: Yeah, great question. So, the Netherlands has some interesting timing requirements. So, for whistleblower complaints specifically, the complainant must receive acknowledgement of receipt of their report within seven days, and then the employer has to provide information about their assessment of the report within three months. So, there are built-in checkpoints along the way.

Patty Shapiro: And what about countries like Australia, the UK, or Singapore?

Kate Thompson: So, in most jurisdictions, including Australia, also Canada, Hong Kong, Japan, Singapore, the UK, just to name a few, the standard is usually within a reasonable time. There’s no specific statutory deadline, but don’t let that lull you into complacency. So, courts and tribunals will still assess whether you acted promptly, and delays can ultimately undermine the credibility of an investigation and any disciplinary action that will follow.

Patty Shapiro: I couldn’t agree more. Companies should still be moving quickly, even without a hard deadline.

Kate Thompson: Yeah, definitely. And another thing that I just want to flag here, so a reasonable time, the standard, it still means that you need to act with urgency. We’ve kind of touched on this a little bit, but evidence can be lost or destroyed. Witnesses’ memories fade, and delays can create legal exposure, especially if an employee claims that the company did not take their complaint seriously. So, the bottom line here is know your jurisdiction-specific deadlines. And even where there is flexibility, you really want to treat every investigation as time sensitive.

Patty Shapiro: Absolutely. What about gathering evidence? What should companies be thinking about there?

Kate Thompson: Evidence collection is critical, but it comes with significant legal considerations. You’ll want to think about document preservation and legal holds across borders. Also accessing employee emails, devices, and files. Those may be restricted in certain jurisdictions due to data privacy laws. So ultimately, ensuring compliance with privacy and data protection laws when you’re collecting and using evidence, that’s going to be really critical. And also, you don’t want to forget chain of custody and admissibility concerns because you’ll want this evidence to hold up if it ever does go to litigation.

Patty Shapiro: Let’s shift gears into interviews. Who should be interviewed and in what order? Can you walk us through that?

Kate Thompson: Yeah, of course. So, investigators may interview the complainant, the accused employee, often called the respondent, and other witnesses with relevant knowledge or observations. Obviously, this is going to vary investigation by investigation, but those are typically our key players. And generally, the complainant should be interviewed first to help shape the scope and the process of the investigation. And the respondent is typically interviewed last right after we’ve talked to our witnesses, after the evidence has been gathered, especially in situations where they have the right to review all of the information. And believe it or not, that’s actually the case in some jurisdictions outside of the U.S.

Patty Shapiro: What about the right to have somebody in the interviews? Can you speak to that a little bit?

Kate Thompson: So, this varies significantly by jurisdiction. So, in Australia, employees can actually request a support person. So, think a family member, a colleague, a union representative, or maybe even a lawyer, but their role is limited to providing support just exactly as their title says. They could also take notes, but that’s about it. They’re not permitted to speak on the employee’s behalf or act as an advocate during these meetings.

In the UK though, this right typically only kicks in during formal disciplinary proceedings. And in the Philippines, complainants raising sexual harassment claims, they’re entitled to have a support person present. Ultimately, like we’ve talked about throughout this miniseries, these laws vary by jurisdiction and the role that a support person can have during these meetings obviously does vary. So, it’s just important to understand the legal nuances when we’re talking about cross-border investigations.

Patty Shapiro: Those are helpful examples. Thank you. What about giving the respondent notice of the investigation?

Kate Thompson: I’m sure you’re going to love my response, but again, this varies. So, in most jurisdictions, there’s no strict legal requirement to give advanced notice, but it’s generally a best practice. So, providing the respondent with advanced notice of the investigation or the interview, along with details of the complaint and those key allegations, that’s going to help maintain procedural fairness, which courts often assess when they’re determining the validity of disciplinary action or termination. And the respondent should understand the nature and the substance of the allegations, so that way they can basically help mount a meaningful defense.

Patty Shapiro: Are there any special considerations when the investigation involves senior executives?

Kate Thompson: Yes, absolutely. So, allegations involving senior executives require extra care. These situations tend to be politically sensitive and there may be concerns about confidentiality, potential influence on the investigation. So, you really need to be mindful of parallel government investigations or regulatory inquiries that also could potentially be going on.

Patty Shapiro: What about confidentiality during the investigation?

Kate Thompson: So, confidentiality is paramount. You need to protect the confidentiality of all parties involved. So, your complainant, your respondent, the witnesses, against any unnecessary disclosures. When you’re conducting these investigations, sharing the investigation related information really should only be with those who have a legitimate need to know. And you’ll want to carefully manage cross-border disclosures to headquarters or other entities. Again, keeping in mind data privacy regulations like the GDPR.

Patty Shapiro: And what if the complainant requests to be anonymous?

Kate Thompson: So, this is really tricky. If the complainant requests to be anonymous, then you need to assess whether it’s feasible without impeding due process or the respondent’s right to a fair investigation. Whistleblower protections and anonymous rights vary by jurisdiction. So, for example, in the Netherlands, whistleblower complaints allow for the respondent to be anonymous to the extent possible through redaction, pseudonyms or restricted disclosure. But in Hong Kong, this can actually be quite challenging because the investigation must be fair for all parties involved.

Patty Shapiro: So, taking a step back and looking at it all together, in your experience, what would you say the most important thing is to remember throughout the investigation?

Kate Thompson: I would say documentation is absolutely critical. Think about keeping those detailed records of all of the interviews, all of the evidence collected, and the investigative steps that were taken throughout the course of the investigation. You’ll really want to make sure that any decisions and rationale, that those are documented throughout the investigation, because ultimately at the end of the day, this will help to create a defensible record if the investigation is ever challenged.

Patty Shapiro: That makes sense. Thank you so much for these insights, Kate. That is about all the time we have for this episode, but join us next time when we discuss common pitfalls and best practices. Thanks for joining us for today’s Cross-Border Catch-Up. Follow us to stay in the know about cutting edge employment issues worldwide.

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