International Video Series: Cross-Border Investigations
In the second segment of our four-part video series, two International Practice Group attorneys, Diana Nehro, a shareholder in our Boston and Stamford offices, and Bonnie Puckett, of counsel in our Atlanta office, discuss challenges that cross-border investigations present for U.S.-based in-house counsel. Watch the video below for a brief discussion of the different rules and unique threats for in-house counsel to keep in mind when handling an investigation abroad, as well as best practices and data protection measures to consider.
Diana: Hi, I am Diana Nehro, a shareholder in Ogletree Deakins’ International Practice Group.
Bonnie: And I am Bonnie Puckett, of counsel with the international practice group. We are here today to talk about a very tricky subject in the world of international employment law—cross-border investigations.
Diana: When an employer receives an allegation of serious misconduct involving an overseas affiliate or an employee with connections to multiple countries, the resulting investigation can pose some very unique challenges.
Bonnie: That’s right—cultural differences, for example, can complicate things in a big way, especially with conduct that might not even be illegal in certain countries, like certain types of discrimination and retaliation, but that a global employer nonetheless wants to avoid. Savvy employees outside the United States may attempt to take advantage of US companies. These US companies often set up ethics hotlines for anonymous complaints and must take any allegation of corruption or bribery very seriously.
Diana: Absolutely. Cross-border investigations often require a different set of rules—and present a different set of threats.
Bonnie: So what are examples of those different rules?
Diana: Good question Bonnie. Some countries give employees the right to a representative or an opportunity to respond to specific allegations made against them. Some countries, like France, even mandate specific procedures that must be followed. Employees in certain countries may be entitled to view the investigation records, as the concept of attorney-client privilege may not exist.
Bonnie: No kidding! And how do you know which country’s investigation rules even apply?
Diana: Often there is no clear answer—especially if you are investigating allegations that involve an expatriate from one jurisdiction working in another country. You will want to familiarize yourself with all the potentially-applicable laws in developing your strategy for the investigation.
Hey Bonnie, how about sharing some best practices for actually conducting the investigation?
Bonnie: After reviewing the relevant documents, you will need to figure out a culturally-appropriate approach, which may mean sending someone from headquarters, involving outside counsel, or finding a more general entry point to question the employees (such as a standard training, or interviews on employee engagement). This might elicit a more honest feedback.
When employers are ready conclude an investigation, then what?
Diana: You will probably want to do some training to reemphasize the company’s culture of compliance. And if it goes further than that, you’re going to need to keep in mind that your investigation report is not likely to be privileged like I mentioned earlier, and that the standards for discipline and termination are much different in other countries.
Bonnie: So if you do need to take disciplinary action, you’ll need to make sure it’s done in compliance with local laws. These may require you to do it within a strict time limit, and may include formalities such as, for example for harassment allegations in India, a hearing by an independent committee. And terminating for misconduct is much more difficult abroad—there is often a real possibility the termination would not hold up in court, so you may want to present a “resignation” option to an employee, or prepare to litigate so as to set a precedent.
Diana: That makes sense. With that in mind, one thing is the same in the US and abroad—you will want to prepare your company for an investigation well in advance. To do this, you’ll want to have a Global Code of Conduct and other applicable written rules that you can point to when any allegation of wrongdoing is made. Local law may require you to consult with employees or their representatives before you can implement or enforce this kind of policy.
Bonnie: Also, you’ll need to make sure that you are in compliance with local data privacy legislation, including having put employees on notice of the use and transfer of their data, entering into intercompany data transfer agreements, and obtaining employee consent where applicable. For example, local data protection laws in Belgium and the Netherlands explicitly limit cross-border transmission of workplace accusations.
Diana: Thank you all so much for listening to our conversation about cross-border investigations. We hope it was helpful for you.