In his Employment Issues column, Philip Berkowitz discusses issues surrounding global workplace harassment investigations. Because U.S. anti-harassment policies were engineered for the U.S. at-will employment environment, simply exporting these tools into overseas investigations may cause problems. American companies must consider local law and custom overseas before carrying out an investigation—just as we would expect an overseas-based company to do prior to carrying out an investigation in the United States.
In the wake of the #MeToo movement, domestic and global workplace investigations have become commonplace. The need to conduct multiple ongoing investigations, whether in response to anonymous hotline complaints or vocal current employees, can overwhelm an HR department and its counsel. The problems become more acute when the investigation involves cross-border conduct, or when witnesses or documents are located overseas.
Because U.S. anti-harassment policies were engineered for the U.S. at-will employment environment, simply exporting these tools into overseas investigations may cause problems. American companies must consider local law and custom overseas before carrying out an investigation—just as we would expect an overseas-based company to do prior to carrying out an investigation in the United States.
In many cases, the company carrying out an investigation in this kind of scenario must start at square one. Circulating a legal hold in the best of circumstances may result in anxiety and misunderstandings among the individuals receiving the hold. Overseas personnel, whether they are witnesses or employed in HR, may be completely unfamiliar with the process, and require a careful explanation prior to receiving such a document.
Asking busy senior executives stationed overseas to set aside hours of their time for the purpose of an interview may seem an extraordinary imposition, and highly unnecessary to the individual receiving the request.
American counsel need to anticipate that they may receive substantial push-back when they issue requests for what seems like routine and normal requests for information, documents, and time.
Choosing the Investigator
American investigators can be reluctant to tamper with their sophisticated investigatory strategies, which they see as vital in confronting a cross-border lawsuit. Nevertheless, careful attention must be paid at the outset of any investigation to the laws, bar rules, and privilege customs of the local jurisdiction in which the investigation is being conducted.
Having a U.S.-based lawyer conduct an investigation into conduct occurring overseas is often inappropriate, impractical, and indeed off-putting. Overseas clients and witnesses alike may also find the approach of a brash American questioner used to U.S.-style, adversarial cross-examination, to be off-putting and inappropriate.
On the other hand, if we ask our overseas colleagues to conduct the investigation, we may find that their experience in doing so differs from ours.
In the United States, under our adversarial system, lawyers routinely question witnesses, both in pretrial discovery and in court. We also prepare our witnesses for testimony. In the United States, people are more accustomed to confrontational and even accusatory interviews.
However, under the inquisitorial system used in many countries, a judge, not a lawyer, normally conducts witness questioning. Further, there is little in the nature of pretrial discovery, and there are no pretrial depositions anywhere but in the United States. Moreover, lawyers are highly restricted in their preparation of witnesses, and the U.S. approach of preparing witnesses in their responses to question may be unethical and even unlawful.
In France, the Parisian Bar Association developed in 2016 strict guidelines that specify the measures that lawyers are required to take in conducting internal investigations. See Vademecum de l’avocat chargé d’une enquête interne (Sept. 13, 2016). Furthermore, the French Supreme Court held that an external lawyer cannot assist an employer when conducting a pre-dismissal meeting. Cass. soc., May 27, 1998, No 96-40.741.
In many Asian communities, traditional social norms mean that many women and men fear speaking up due to the deeply-rooted stigma associated with sexual harassment. Even body language may differ. For example, because looking someone in the eye may be considered rude in some countries, not maintaining eye contact with an investigator is not necessarily a clue that a person is lying.
In cross-border investigations, understanding culture differences plays a pivotal role in order to avoid potential misunderstandings and to put a witness at ease. Thus, it becomes essential that Americans work with investigators with local language skills, with interpreters, and with “cultural liaisons” who can help the American client or investigator navigate their way through the local laws and cultural norms.
In the United States, the attorney-client privilege is sacrosanct, and the employer is often best advised to assure that the attorney-client privilege attaches to the investigation, so to protect the results from discovery. The privilege is often waived in order to assert an affirmative defense, and it may be waived by necessity if the employer seeks to rely on the investigation results in formulating a legal defense.
The attorney-client privilege, in the United States, is to some degree a product of our discovery process. The privilege protects from disclosure any advice or requests for advice between lawyer and client. But overseas, the lack of pretrial discovery has resulted in a concept of privilege that is far less developed than exists in the United States.
Indeed, most countries’ legal systems do not recognize the attorney-client privilege at all, or recognize only a principle of confidentiality that is not nearly coextensive with the protections provided by the privilege in the United States.
Thus, France and Italy do not recognize a privilege, but only regulations on the ethical issue of confidentiality.
In China, there is no concept of legal privilege, although there is a similar concept of confidentiality. Communications with the client can be disclosed if required by law or a court order.
It is critical that U.S. counsel understand the hostility with which foreign prosecutors may view efforts to shield investigation results relying on U.S. notions of an attorney-client privileged. German prosecutors, for example, have conducted “dawn raids” on a number of U.S. law firms, impounding records they felt relevant to their investigations despite the lawyers’ assertions that the documents are privileged.
U.S. courts, consistent with Upjohn Co. v. United States, 449 U.S. 383 (1981), generally recognize that the privilege may attach to communications between in-house counsel and the corporate client. However, the privilege has limited application outside the United States to these communications between in-house counsel and the client.
In Europe, the European Court of Justice held in September 2010 in an antitrust case that communications with in-house counsel are not privileged because in-house counsel are not considered independent enough to warrant extending a legal professional privilege. Akzo Nobel Chemicals Ltd. v. European Commission, Case 155/79, A M & S Europe Limited v. Commission,  ECR 1575. While EU regulation has led some measure of consistency in member states’ laws dealing with attorney-client privilege, there are still significant differences of emphasis and approach.
Rights of Representation
Things are also different from a substantive legal standpoint, of course. Foreign workplace laws tend to have no counterpart to U.S. employment at will, and thus may confound American investigators.
Having a U.S. lawyer unfamiliar with local laws question a witness may prejudice the client’s rights, even one as fundamental as the ability to discipline the employee whose conduct is at issue.
One of the starkest differences between domestic and cross-border investigations is that, in some jurisdictions, the employee may have (1) the right to representation during an interview, (2) the right to be informed of their procedural rights during the investigation and (3) the right to have access at least to some degree to investigation materials that identify them.
Under some circumstances, the French investigator must explain to these individuals that they can be assisted by lawyers. In Finland and Nigeria, if an employer is seeking to terminate the employee, the employee must be informed of his or her right to have a lawyer present during an interview.
It is unlawful in some countries to impose discipline based on an interview conducted in an investigation. An interview of an employee outside the United States may need to be suspended if the interview reveals that the employee engaged in wrongful conduct that may subject him or her to discipline.
In China, for example, the applicable union must be consulted for any unilateral termination of employment by the employer even if it is based on a statutory ground.
Further, in some jurisdictions, employees have the right to refuse to cooperate with an employer-led investigation, even if they are not its target.
Any efforts to search email—whether or not located on company-owned systems and computers—or even to review any personnel records, must be considered with privacy law issues in mind. Many countries in Central and Eastern Europe prevent companies from extracting the employee’s email accounts without the employee’s consent.
French and Swiss blocking statutes prevent the transmission of evidence abroad unless certain procedural safeguards are met.
In Japan, when an employer collects employees’ personal information, the employer must disclose the purpose for which such employees’ personal information is to be used as soon as possible after collection of such personal information.
China imposes tough requirements regarding the collection and analysis of “state secrets” and other information that is in China’s “national interests.”
Because of the growing prevalence of data protection laws and the continued challenge of blocking statutes, the handling of foreign evidence must be given careful thought from the beginning of the investigation.
At the close of the investigation, the company will typically prepare an investigation report, unless legal considerations suggest a different approach. There may be good reasons for not preparing an investigation report, depending on the results of the investigation as well as the possibility that the report, if written, may be subject to disclosure, whether in litigation or to a government authority.
On the other hand, labor laws overseas may require a written report, especially if disciplinary action is taken or if the company has the duty to provide certain investigatory material, including a written investigatory report, to the target or the witness under investigation.
U.S. lawyers called upon to carry out investigations involving cross-border issues, or witnesses and evidence located overseas, would do well to consider with care the laws and cultures of those jurisdictions. Preparing in advance for potential questions about what may otherwise seem routine inquiries may avoid significant roadblocks.
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Philip M. Berkowitz is a shareholder of Littler Mendelson and co-chair of the firm’s U.S. international employment law and financial services practices.
Reprinted with permission from the September 11, 2019 edition of the New York Law Journal©
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