Cross-Border Catch-Up: Cultural and Legal Considerations in Global Investigations, Part 3

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Patty Shapiro: Welcome back to the Cross Border Catch-Up. I’m Patty Shapiro, and I’m here with my colleague, Kate Thompson, for the final episode of our three-part miniseries on global workplace investigations. Kate, we’ve covered preparation and conducting the investigations. Now let’s talk about some common pitfalls that companies should avoid and best practices to keep in mind. What are some of the most common mistakes that you see?

Kate Thompson: This is a great question, Patty. So, there are several pitfalls that trip up even really experienced organizations. The first I would say is breaching confidentiality. So, information leaks can derail an investigation and expose the company to liability. Keep in mind limiting the number of personnel involved and ensuring that evidence isn’t shared with unauthorized individuals during the course of the investigation.

Patty Shapiro: What about transparency? How do you strike the balance there?

Kate Thompson: Yeah, absolutely. So poor transparency balance is another common pitfall. We need to be transparent enough to maintain procedural fairness, but not so open that you compromise confidentiality or privilege protections. In jurisdictions like the Netherlands and the UK, which we talked about earlier in our miniseries, respondents are entitled to access the essential factual evidence necessary to understand and respond to allegations. But then in other jurisdictions like Japan, respondents have no legal right to receive or review the evidence.

Patty Shapiro: Data privacy is definitely a big concern in global investigations, especially with conflicting data privacy frameworks. How can companies avoid violations of data privacy law?

Kate Thompson: Yeah, this is a great question. And honestly, we might even want to consider adding a fourth part to our miniseries on data privacy considerations because this is honestly a major pitfall. So, you’ll want to ensure that cross-border data transfers and evidence collection complies with applicable data protection regulations like the GDPR, which we’ve talked a lot about during this miniseries. So just to kind of put this in perspective, in Hong Kong, information and materials collected during an investigation, those are protected against disclosure by data privacy rules and failing to comply can result in significant penalties and might even invalidate the investigation.

Patty Shapiro: Yeah, very high stakes there. We talked earlier in our miniseries about cultural considerations. What are some pitfalls with respect to that?

Kate Thompson: So cultural blind spots are surprisingly common. For example, companies that are headquartered in one country often apply their cultural norms to investigations in other jurisdictions. So, it’s really important to understand how different communication styles, perceptions of authority, even attitudes towards conflict and concepts of privacy and confidentiality in each location, how those ultimately play a role in these global investigations. Gender and power dynamics, body language, and nonverbal cues all play a role as well.

Patty Shapiro: That’s so true. The humanity or human aspect of this, I should say, really does play a bigger role than I think many companies realize when planning an investigation. What about documentation issues? Any pitfalls there?

Kate Thompson: Yeah, so weak documentation, this is a frequent problem. If you don’t thoroughly document all of the interviews, the evidence that’s been collected, and the investigative steps that were taken, then companies might not be able to defend their investigation later. And ignoring any evidence here, it could lead to accusations of an unfair or even a discriminatory investigation. So, it’s really important that you consider making a clear record of what was reviewed, why the decisions were made to ultimately avoid any of those risks that could follow if you don’t document properly.

Patty Shapiro: Absolutely. And I’ll just keep hitting you with some more questions about these pitfalls because they’re so different, but there’s so many of them. So how about timing issues? Can you speak to that?

Kate Thompson: So yes, absolutely. Premature discipline is a real pitfall. It’s generally best to let the investigation run its course before taking any type of adverse action. But at the same time, you really want to be aware that some jurisdictions do impose strict deadlines. And we’ve kind of talked about this a little bit earlier in the miniseries, but just to put it in perspective in the Netherlands for summary dismissal, you only have 48 hours after the decision makers become aware of all the facts supporting a serious cause dismissal. And other adverse actions should be taken within a reasonable time. So maybe not necessarily a summary dismissal, but we’re talking about a written warning, something along those lines. So, getting the timing right really requires careful planning.

Patty Shapiro: What about retaliation concerns?

Kate Thompson: Yeah, so retaliation risks, unfortunately those are always present. So, ensuring that complainants, respondents, and witnesses are protected from retaliation throughout and after the investigation process is essential. In Singapore, for example, those responsible for managing whistleblower reports actually have to take appropriate steps to protect the whistleblower’s identity and ensure that they’re not subject to retaliation or adverse treatment. And we see that in many other jurisdictions as well, but just to kind of give you an example.

Patty Shapiro: Yeah. And that goes back to how challenging it can be with the potentially conflicting laws. So maybe a complainant, their identity needs to be kept confidential in one jurisdiction, but then the respondent is in a different jurisdiction where actually they have the right to know who made the complaint. I think that part gets particularly challenging. What about who conducts the investigations? Can you speak to that piece a little bit?

Kate Thompson: Yeah, of course. So, conflicts of interest can undermine an entire investigation. Investigations are generally expected to be conducted in a fair and an objective manner to ensure that all parties are treated equally and equitably. And importantly, in some jurisdictions, the investigator can’t be the decision maker when it comes to discipline. So, keeping those roles separate is often required. And that’s also an area where we sometimes see companies trip up and maybe make a mistake.

Patty Shapiro: Let’s shift to the reporting phase. What should companies know about investigative reports?

Kate Thompson: Yeah. So, disclosure requirements for investigative reports, those vary significantly. Some jurisdictions limit disclosure to non-privileged portions while many require sharing findings with the affected parties. So just to put this again in perspective, in Canada, both the complainant and the alleged harasser must be informed of the results of the investigation, and then any corrective action that’s been taken. In Australia and the UK, parties there are also entitled to non-privileged sections of the report. So structuring reports for multi-jurisdictional use and then balancing transparency with privileged protections, this is often a key consideration when we’re putting together these investigative reports.

Patty Shapiro: Definitely. And very challenging for sure. Finally, Kate, what are your top best practice recommendations?

Kate Thompson: So, there are four key takeaways that I really want to highlight here. So first, build a cross-border investigation playbook before issues arise. This common theme of making sure that you are prepared before an investigation is really important. And ultimately with the preparation, this is really where investigations are kind of set up to thrive or potentially fail. So being prepared and having this playbook that’s well thought will really go a long way.

The second is to invest in relationships with trusted counsel. Ultimately, you’re going to need advisors who understand the local landscape. We talked a lot during this miniseries about how laws vary by jurisdiction, whether we’re talking about data privacy or even what you can include in an investigation report and who has the right to access and receive information. So, making sure that you have an understanding of the local landscape is really critical to making sure that you have a successful investigation.

Third, I would say documenting decisions and rationale throughout the investigation. Again, we talked about this one a lot, but this will ultimately help companies be prepared in the event that an investigation or a decision that has ultimately stemmed from that investigation. If that’s challenged, then looking back and making sure that your rationale and your decisions have been documented will help to defend against any type of claim that could potentially pop up.

And then fourth, I would say communicate clearly with stakeholders about timelines and limitations part of the investigation. And then finally, I would stay updated on company policy, local laws, and make sure that you’re taking proactive steps to prevent misconduct. In some countries, this is actually a legal requirement. So, I would say those are my common takeaways. There’s many, many more that I could think of, but I think that that’s a good place to kind of end.

Patty Shapiro: Absolutely. I think it’s all really helpful. There’s just so much to consider with global investigations far more than I think meets the eye. This has been such a valuable series, Kate. Thank you for walking us through all of these considerations.

Kate Thompson: My pleasure, Patty. Global investigations are complex. There is no question about that. You’re dealing with multiple legal frameworks, cultural differences, timing pressures, and high stakes for everyone involved. But with the right preparation and approach, companies can conduct fair, thorough, and legally defensible investigations across borders. Again, back to my common theme, but the key is planning ahead. Make sure you assemble that right team and stay flexible as you navigate each jurisdiction’s unique legal requirements.

Patty Shapiro: I couldn’t agree more. Thank you all for joining us for today’s Cross-Border Catch-Up that wraps up our miniseries on global investigations. Follow us though to stay in the know about cutting-edge employment issues worldwide.

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