Global Investigations Review - The law and practice of international investigations

Employee Rights

Last verified on Thursday 24th May 2018

United States

Richard Smith, William Burck and Alexander Merton
Quinn Emanuel Urquhart & Sullivan LLP

    The company’s investigation

  1. 1.

    How does the company retain its privileges, including the attorney-client privilege, when interacting with employees in an investigation?

  2. To ensure attorney–client privilege attaches to communications with company employees, the communications/information must be: (i) confidential; (ii) between an employee and corporate counsel; (iii) to secure legal advice; (iv) unavailable from upper-level management and within the scope of the employee’s work duties; and (v) provided with adequate Upjohn warning. See Upjohn Co. v United States, 449 U.S. 383, 390-92, 394 (1981). 

    An Upjohn warning makes clear to the employee that: (i) the company counsel is providing legal advice to the company; (ii) the company counsel represents the company and there is no attorney–client relationship between the company counsel and the employee; (iii) the conversation between the company counsel and the employee is privileged and should remain confidential; and (iv) the privilege belongs to the company, the company alone can choose to waive privilege and, in the future, the company may share the information with a third party. See, for example, In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 336, 340 (4th Cir. 2005). This warning should be documented in case the privilege is later challenged.

    When a special committee to the board of governors retains external counsel to conduct an investigation, the attorney–client privilege exists between the counsel and the special committee. See, Ryan v. Gifford, Civil Action No. 2213-CC, 2007 WL 4259557, at *3 n.2 (Del. Ch. Nov. 30, 2007). While communications between a special committee and its counsel are protected, it is less clear that the communications by committee counsel and other stakeholders (in-house counsel or management) in an investigation are protected, particularly if they are the subject of the investigation. See id. Special committees should be particularly mindful of not waiving the attorney–client privilege by disclosing privileged information to individuals who, as a result of the investigative findings, “cannot be said to have interests that are so parallel and non-adverse to those of the Special Committee that they could reasonably be characterised ‘joint venturers’” – eg, individual defendants accused of misconduct that also serve on the board of directors. See id. at *3.

  3. 2.

    How does the company retain work product privileges when interacting with employees?

  4. In contrast to the attorney–client privilege, which only protects confidential attorney communications, the attorney work product privilege protects “any [materials] prepared in anticipation of litigation by or for the attorney.” See In re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986). This can include witness interviews, reports and similar materials.  

    To qualify for work product protection, materials must be prepared with litigation in mind and not for ordinary non-litigation business purposes. See Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987). Generally, courts do not require that litigation be in progress, but they will inquire as to whether a document was created because of a reasonable possibility of litigation. See Biegas v. Quickway Carriers, Inc., 573 F.3d 365 (6th Cir. 2009). 

    Most courts distinguish between factual and opinion work product. See Upjohn, 449 U.S. at 400-01. Factual work product may be discoverable upon a showing of substantial need. An example of substantial need would be if an eyewitness passes away after having been interviewed. Opinion work product, which contains an attorney’s own legal analysis or impressions, receives absolute or heightened protection depending on the court.  

    To avoid discovery of attorney work product, company counsels should integrate their legal analysis and impressions into the documents and memoranda they create rather than simply resuscitating facts. Companies should be careful not to inadvertently waive the work product privilege by making documents public or revealing them to those with adverse interests. See, eg, In re Steinhardt Partners, 9.F.3d 230, 234 (2d. Cir. 1993). 

  5. 3.

    What claims may an employee bring against the company during an investigation? How can the company protect against them?

  6. Employees may bring claims against the company for alleged misconduct during an investigation for, among other things, defamation, whistleblower violations, wrongful termination, false imprisonment, intentional infliction of emotional distress, malicious prosecution, and violations of an employee’s collective bargaining rights or privacy rights. To protect against these claims, companies should carefully consult with counsel to ensure their interactions with employees throughout the investigatory process do not create legal exposure. Supervisory actions, state law, federal law and employment documents, such as company policies and employment contracts, create a minefield of potential liability that a human resources department would struggle to navigate without the help of experienced counsel. 

  7. 4.

    What agency procedures or whistleblower rules should the company be aware of in this jurisdiction?

  8. There is an array of state and federal whistleblower statutes. Among the most important in the corporate investigation sphere are the Sarbanes-Oxley Act and the Dodd–Frank Act. Sarbanes-Oxley was passed in response to the 2002 Enron scandal. In addition to creating an expansive regulatory regime to govern corporate fraud, it included whistleblower protections for any person reporting instances of mail fraud, wire fraud, bank fraud, securities fraud, or any other US Securities and Exchange Commission (SEC) regulation violation. Likewise, Dodd–Frank was passed after the 2008 recession. Similar to Sarbanes-Oxley, it grants protections to people who report securities violations; however, it also expands these protections and provides monetary rewards to whistleblowers. These laws now cover a wide array of corporate and financial crimes, including violations of the Foreign Corrupt Practice Act (FCPA).  

    To the extent a company conducts business with the US government, the False Claims Act permits a whistleblower to file an action on behalf of the US by asserting that the company presented a false claim for payment to the federal government or has knowingly and improperly avoided or decreased an obligation to pay money owed to the federal government. If a whistleblower pursues a claim against a company under the False Claims Act, the act prohibits the company from discharging, demoting, suspending, threatening, harassing or in any other manner discriminating against the employee in the terms and conditions of her or his employment as a result of her or his lawful acts that were done to stop one or more violations of the False Claims Act.

  9. 5.

    What are the considerations when conducting without notice interaction with company employees in an investigation?

  10. If an employee initiates a without notice interaction with the company related to its investigation, the company should immediately request that the employee terminate the conversation and wait so that proper procedures can be followed. Unplanned interactions can lead to mistakes, such as communicating with an employee who is represented by outside counsel, in violation of attorney ethics rules (see question 12), or not meeting all the necessary requirements to assert privilege over a communication (see question 1). It can also lead to improper recordkeeping, such as not having a second investigator in the room to take notes and corroborate any later disputes about the content of those communications.  

  11. 6.

    What should the company know about the anti-bribery and anti-corruption laws in this jurisdiction? How, if at all, does the Voluntary Self Disclosure and FCPA Pilot Program apply to this investigation?

  12. The FCPA is the primary tool the United States uses to combat bribery of foreign government officials. In addition to prohibiting bribery, it contains accounting provisions which require public companies to maintain accurate books and a system of internal accounting controls. In 2016, the US Department of Justice (DOJ) launched the FCPA Pilot Program, which creates incentives for companies to self-report FCPA violations and cooperate with federal officials in exchange for leniency. In 2017, the DOJ made this guideline permanent.

    Federal and state law also allow the prosecution of domestic bribery of government officials and private parties in the United States. For example, 18 U.S.C. § 201 prohibits the bribing of federal officials and many states have laws that prohibit bribery between solely private parties. See Perrin v. United States, 444 U.S. 37, 50 (1979). 

  13. 7.

    How do labour laws, collective bargaining agreements, and the procedural pre-emptions affect the internal investigation?

  14. The National Labor Relations Act protects the right of all non-supervisory employees, even non-unionised ones, to engage in “concerted activity”, which can include discussing ongoing investigations involving company employees. Companies can request that an employee maintain the confidentiality of an interview, but they must show that they have a “reasonable basis for seeking confidentiality”. See Banner Health Sys., 362 NLRB No. 137 (26 June 2015), aff’d in part, 851 F.3d 35 (D.C. Cir. 2017). This can include instances where “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.” Id. In most investigations there will be a reasonable basis for seeking confidentiality, but companies should avoid a blanket confidentiality requirement that applies in all investigations. Instead, they should document a case-specific basis for each investigation. 

    Unionised employees have a right to request that a union representative be present at any investigative interview that the employee reasonably believes could lead to disciplinary action. See N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251, 257-62 (1975). This does not, however, mean a union representative must be present or an employee must be informed of this right.

  15. 8.

    Does this jurisdiction recognise the "employment at will" doctrine? Are there exceptions to this doctrine?

  16. Yes. The presumption in the United States is that employer/employee relationships are “at will – ie, an employee can be fired or quit at any time without cause. There are, however, a number of exceptions to this default rule that vary in their application by state. First, parties can explicitly contract for “just cause” protection or negotiate a term contract. Second, most states recognise an implied-contract exception to the employment at will doctrine. Implied contracts can be created by things like oral assurances of job security or written assurances in an employee handbook. Third, most states recognise an exception to employment at will if a discharge offends public policy. For example, a court may find a company cannot fire an employee for refusing to break the law. Fourth, a minority of states recognise a general covenant of good faith and fair dealing in every employee relationship. For instance, a company may not fire a long-term employee to avoid having to pay them retirement benefits. There are also many statutory exceptions, such as not being able to fire an employee based on discrimination or for certain types of whistleblowing. See Charles J. Muhl, The Employment-at-Will Doctrine: Three Major Exceptions, January 2001, https://www.bls.gov/opub/mlr/2001/01/art1full.pdf.

  17. 9.

    Does this jurisdiction recognise claims for unlawful retaliation by an employer against a whistleblower?

  18. Yes, a whistleblower may bring a claim for unlawful retaliation both under federal and state laws. Claims for retaliation can allege forms of misconduct that do not necessarily include termination. For example, retaliation can include conduct that affects the conditions of employment such as a demotion, suspension, threats or harassment. See Sarbanes-Oxley Act § 806. In addition to consulting counsel before taking any action against a whistleblower, companies should create an effective anonymous reporting system and retain external counsel to investigate serious whistleblower reports as necessary.  

  19. 10.

    Who may represent the employees in an investigation, and what are the company’s obligations to facilitate their representation?

  20. Employees may retain their own independent counsel during an investigation and, depending on the circumstances, employers may be obligated to pay for it. Such obligations can arise statutorily or from contracts, such as indemnification agreements or corporate by-laws. See, eg, Waltuch v. Conticommodity Servs., Inc., 88 F.3d 87, 94-96 (2d Cir. 1996). Even if the company does not finance independent representation, it is often a good idea for them to recommend that employees retain outside counsel to preserve the integrity of an investigation and protect unwary employees from potential liability. Sometimes, companies are ethically required to recommend that an employee retain outside counsel. See question 13.  

    Company lawyers may concurrently represent an employee and the company in certain circumstances. See ABA Model Rules, Rule 1.13(g). To do so, however, a lawyer must obtain informed consent from both the company and employee, and would need to reasonably believe that she/he could adequately represent both parties’ interests. See ABA Model Rules, Rule 1.7(b). Dual representation, however, can raise a number of legal and ethical issues and should generally be avoided.

  21. 11.

    What obligations does external counsel to the company have towards employees that are not considered to be clients of the attorney? Is this the same for in-house counsel?

  22. When representing a company a lawyer’s obligation is to represent the interests of the company, as distinct from the interests of its employees. See ABA Model Rules, Rule 1.13. This rule applies to both in-house and outside counsel.

    If a company’s interests come into conflict with those of an employee, company lawyers are ethically obligated to explain to the employee that they represent the interests of the company—not the employee – and they should consider seeking independent counsel. See ABA Model Rules, Rule 1.13, Comment 10. Counsel must exercise care to ensure employees do not form the mistaken belief that they are their client. If it becomes apparent that an employee has formed this misimpression, counsel should correct it. See ABA Model Rules, Rule 4.3.  

    Finally, Upjohn warnings should be given to employees before an interview to prevent employee misunderstandings regarding who controls the privilege. See question 1.

  23. 12.

    What should the company consider when interacting with employees represented by an attorney?

  24. Company attorneys and their agents are prohibited from contacting a represented employee in connection to an investigation without consent from the employee’s attorney. See ABA Model Rules, Rule 4.2. 

    If the company interests align with an employee’s interests, a company may choose to enter into a common interest or joint defence agreement. See question 22. Such an agreement would encourage cooperation on the part of the employee and offer increased privilege and work product protection. Companies, however, must weigh these benefits versus the risk that entering into a joint defence agreement may limit their ability to disclose investigation results to the government to earn cooperation credit. 

  25. 13.

    How does this change for employees who are not represented by an attorney?

  26. Company attorneys must take extra care to ensure an unrepresented employee understands that they represent the company, not the employee. Failure to do so could severely undermine an investigation. Unrepresented employees must be given an Upjohn warning so they understand that the attorney does not represent them as an individual, but the company only. See question 1. This is especially important when the employee is unrepresented. Likewise, if it becomes apparent that the employee’s and company’s interests may be adverse, the counsel should reiterate that they represent the company only – and not the employee – and they should recommend that that the unrepresented employee consider seeking the advice of outside counsel. See question 11.

  27. 14.

    If documents or electronically stored information containing employee information is sent from this jurisdiction to another, for analysis or use in legal proceedings, what are the aspects to be considered?

  28. Privacy protection in the United States is not as robust as in many other countries. There are a number of ad hoc data protection laws at the state and federal level, such as the Health Insurance Portability and Accountability Act, which protects healthcare data, but the United States does not have any laws that offer across the board data privacy protections or regulate cross-border transfers of personal information, such as the European Data Protection Directive. To ensure they are in compliance with all applicable laws, companies should consult counsel familiar with the particular locale and industry. Companies should also be sure to continue to honour any privacy policy they have put in place even after the information is sent abroad.

    For more information on United States data privacy law, see https://globalinvestigationsreview.com/know-how/topics/1000306/data-privacy-&-transfer-in-investigations.

  29. 15.

    What are the company’s public disclosure obligations about the internal investigation in this jurisdiction?

  30. Securities laws may require companies to publicly disclose information related to an internal investigation. For example, SEC Regulation S-K requires companies to periodically report major pending or contemplated litigation proceedings that are not incidental to the ordinary course of business, such as claims for damages that exceed 10 pe cent of the value of the company. See 17 C.F.R. § 229.103. It also requires reporting of any known events or “uncertainties that have had or that the company reasonably expects will have a material… impact on net sales or revenues.” See 17 C.F.R. § 229.303. Not all legal exposure will be considered “material” and thus may not need to be included. See In re Lions Gate Entm't Corp. Sec. Litig., 165 F. Supp. 3d 1, 20 (S.D.N.Y. 2016). In general, the larger and more certain the potential exposure, the more likely it should be reported. In addition to mandatory SEC requirements, there are statutes that apply to particular industries. For example, certain illegal kickbacks and improprieties in the government contract industry must be reported to the government. See, 48 C.F.R. 52.203-13. 

  31. 16.

    Are public company statements relating to employee misconduct protected from defamation claims?

  32. No. Public company statements relating to employee misconduct are not protected from defamation claims. See, eg, Pearce v. E.F. Hutton Grp., Inc., 664 F. Supp. 1490, 1517 (D.D.C. 1987).

    From the employee’s perspective

  33. 17.

    What is the law, policy and enforcement track record on individual accountability for corporate wrongdoing?

  34. The DOJ has recently increased their focus on individual accountability for corporate wrongdoing. In what has since become known as the Yates Memo, the DOJ stated that “[o]ne of the most effective ways to combat corporate misconduct” is through individual accountability. See Sally Yates Memo, available at https://www.justice‌.gov/archives/dag/file/769036/download.

    The memo described the DOJ’s strategy towards individual accountability going forward. Key points include: (i) in order to receive any cooperation credit, a corporation must completely disclose details regarding individual misconduct; (ii) investigators should focus on individual actors from the outset of any investigation; and (iii) absent extraordinary circumstances, no immunity should be granted to individuals as part of a deal with a corporation. Recent enforcement actions have underscored the DOJ emphasis on individual accountability. See Press Release, DOJ, Five Individuals Charged in Foreign Bribery Scheme Involving Rolls-Royce (7 November 2017).

  35. 18.

    What is the employee’s obligation to speak with the company in an internal investigation?

  36. As a general rule, there is no legal obligation for an employee to cooperate with the company in an internal investigation. But, this does not mean that non-cooperation is without potential consequences. A private company cannot subpoena an employee, but they are well within their rights to take disciplinary measures to induce cooperation. Such measures can include demotion, suspension, or even discharge. See, eg, Gilman v. Marsh & McLennan Companies, Inc., 826 F.3d 69, 74 (2d Cir. 2016). It is possible, however, that an employee or union contract will grant certain employee protections or outline procedures that the company must follow during an investigation.   

  37. 19.

    What are attorneys’ roles representing the company and representing the employee, and who should explain these roles to the employee?

  38. Generally, company attorneys represent the interests of the company, not the employees. In certain situations, attorney ethical rules require them to explain that their duty is do what is in the best interest of the company. For example, an attorney is required to explain to employees that they represent the company any time the attorney realises the company’s and employee’s interests are in conflict. See question 11. In certain circumstances it is possible for an attorney to represent both a company and one of its employees – by obtaining the employee’s informed consent and the ability to adequately represent both parties – but those situations should generally be avoided. See question 10. 

  39. 20.

    May an employee appoint its own counsel in an internal investigation?

  40. Yes, an employee may appoint their own independent counsel in an internal investigation. Although a company may object to such a retention, subject to contractual and union obligations, the company should generally welcome the involvement of an impartial counsel to bolster the integrity of an investigation. 

  41. 21.

    Who pays for employee representation?

  42. An employee may need to pay for their own representation, but it is common for the company or an insurance policy to cover legal fees due to a contractual or statutory obligation. See question 10. 

  43. 22.

    May employees enter into joint defence agreements? With whom?

  44. Yes. Employees may enter into joint defences agreements (JDAs) with the company and/or other employees if all parties share a common legal interest. See, eg, United States v. LeCroy, 348 F. Supp. 2d 375, 381 (E.D. Pa. 2004). JDA’s encourage cooperation and lower costs by pooling resources. They also increase privilege and work product protections by allowing a third party to be present during an attorney–client communication while still: (i) shielding information from the government; and (ii) preventing parties to the JDA from disclosing information they learned as a result of information sharing.

    An employee should weigh the benefits of a JDA versus potential drawbacks. Whenever privileged information is shared with a third party, the chance of inadvertent waiver of the privilege increases. The privilege may be inadvertently lost if all the elements necessary to establish a JDA are not met. See, eg, In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 338 (4th Cir. 2005). Furthermore, a party may lose privilege claims over information they shared with other parties to a JDA if they decide to leave the JDA and cooperate with the government. See, eg, United States v. Almeida, 341 F.3d 1318, 1326 (11th Cir. 2003).

  45. 23.

    Do employees have any constitutional or basic legal rights that they can rely on during government and internal investigations?

  46. If the government is conducting the investigation – ie, their agents are interviewing the employees – employees have all the well-known criminal protections that the US constitution provides. Among these include the Fifth Amendment right against self-incrimination and the Fourth Amendment protections regarding unreasonable searches and seizures.

    If the employer is conducting an investigation, even if it is related to a potential government investigation, these constitutional protections do not apply because it is only an interaction between private parties. Although a company cannot compel an uncooperative employee to cooperate as they might be able to with formal judicial resources, employers generally possess mechanisms to discipline any employee who does not cooperate. See, eg, Gilman v. Marsh & McLennan Companies, Inc., 826 F.3d 69, 74 (2d Cir. 2016). In rare circumstances, a court may find that the government exerted such influence and pressure on a company conducting an investigation that it became unconstitutional state action. For example, the Second Circuit has held that the government pressuring a company to not advance legal fees of their employees amounted to state action that violated the Sixth Amendment right to counsel. See United States v. Stein, 541 F.3d 130, 136 (2d Cir. 2008).

    Separately, an employee has some limited privacy rights in the workplace, but generally work-related materials, such as emails on a company server, are company property and can be culled, searched, and processed as part of an investigation. See questions 3 and 24. Some employees have contractual or union-negotiated procedures that must be followed during an investigation. See question 7. 

  47. 24.

    Who owns the documents and electronically stored information within employees’ possession or control and how can employees protect their privacy rights in this context?

  48. Generally, employers have the right to search company property, which can include office space, company emails and electronic information sent across a company network. This right is curtailed when an employee enjoys a reasonable expectation of privacy based on a company’s policies or general practices. For example, businesses can usually search employee lockers, but allowing an employee to use their own personal lock may create an employee expectation of privacy. See, eg, K-Mart v. Trotti, 677 S.W.2d 632, 637 (Tex. App. 1984). An employer can normally search emails within their own computer system, but courts have found searching personal emails sent on workplace computers can create legal liability, especially in instances where the company policy does not clearly address what sources of information will be monitored. See Stengart v. Loving Care Agency, Inc., 990 A.2d 650, 663 (N.J. Sup. Ct. 2010). In response to these privacy concerns, some state statutory regimes require an employee be notified in advance if their electronic communications will be monitored. See, eg, Del. Code Ann., Tit. 19, § 705 (2005). 

    To ensure confidential treatment of personal information, employees should understand and abide by the company’s privacy policies and procedures as well as avoid using company property and networks to send personal communications.   

  49. 25.

    What are the employee’s responsibilities if there is a parallel civil proceeding against the company or against the employee?

  50. Parallel proceedings against a company or an employee can create privilege and conflict of interest issues. Employees must balance their own personal legal interests with obligations to their employer. For example, in a civil proceeding against a company, an employee may wish to invoke their Fifth Amendment right against self-incrimination. An employee’s refusal to testify, however, can create an adverse inference against the company. See, eg, Brink's Inc. v. City of New York, 717 F.2d 700, 707-10 (2d Cir. 1983). In these situations companies may pressure an employee to cooperate, and the employee will need to weigh the benefits of mitigating potential personal exposure versus disciplinary measures due to refusal to cooperate.

  51. 26.

    What should employees do if they are sued by shareholders or other private parties as a result of an investigation?

  52. If an employee is sued personally they should seek the advice of personal and company counsel to discuss how best to proceed. If the employee has been named in a lawsuit, the interests of the company and employee may diverge, and it is important that the employee have personal counsel. See question 19. Employees are often entitled to indemnification for actions they took on behalf of their employer under company bylaws, state law, contracts or an insurance policy. See, eg, Waltuch v. Conticommodity Servs., Inc., 88 F.3d 87, 94-96 (2d Cir. 1996). Depending on the details of the lawsuit, this can include the payment of legal fees or damages awards. If an employee is unable to afford the upfront costs of litigation, they may be able to obtain an advance of legal fees from the company or an insurance policy. See, eg, Citadel Holding Corp. v. Roven, 603 A.2d 818, 826 (Del. 1992).

  53. 27.

    What are the employees’ responsibilities to comply with law enforcement investigations, subpoenas and searches?

  54. Employees are legally required to comply with subpoenas, warrants and similar court orders. If personally served with a subpoena, employees should consult counsel to determine the scope and reasonability of the subpoena. Similarly, if served with a warrant, an employee should allow the investigators to search the area specified in the warrant unimpeded, subject to the employees rights.

    There are, however, situations where law enforcement will seek voluntary cooperation. If there is no formal subpoena, warrant or similar document, the employee is under no obligation to cooperate. Government agents often conduct scheduled voluntary interviews with an employee with the full knowledge of the corporation. It is also possible a government agent will attempt to interview an employee unannounced, such as by going to their house. See, eg, In re Amgen Inc., 2011 WL 2442047 (E.D.N.Y. Apr. 6, 2011). It is often best for the employee to politely decline to answer any questions during such a contact until the employee is able to confer with company and/or personal counsel; information disclosed to law enforcement may be used against the employee or against the company in an enforcement action. 

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Questions

    The company’s investigation

  1. 1.

    How does the company retain its privileges, including the attorney-client privilege, when interacting with employees in an investigation?


  2. 2.

    How does the company retain work product privileges when interacting with employees?


  3. 3.

    What claims may an employee bring against the company during an investigation? How can the company protect against them?


  4. 4.

    What agency procedures or whistleblower rules should the company be aware of in this jurisdiction?


  5. 5.

    What are the considerations when conducting without notice interaction with company employees in an investigation?


  6. 6.

    What should the company know about the anti-bribery and anti-corruption laws in this jurisdiction? How, if at all, does the Voluntary Self Disclosure and FCPA Pilot Program apply to this investigation?


  7. 7.

    How do labour laws, collective bargaining agreements, and the procedural pre-emptions affect the internal investigation?


  8. 8.

    Does this jurisdiction recognise the "employment at will" doctrine? Are there exceptions to this doctrine?


  9. 9.

    Does this jurisdiction recognise claims for unlawful retaliation by an employer against a whistleblower?


  10. 10.

    Who may represent the employees in an investigation, and what are the company’s obligations to facilitate their representation?


  11. 11.

    What obligations does external counsel to the company have towards employees that are not considered to be clients of the attorney? Is this the same for in-house counsel?


  12. 12.

    What should the company consider when interacting with employees represented by an attorney?


  13. 13.

    How does this change for employees who are not represented by an attorney?


  14. 14.

    If documents or electronically stored information containing employee information is sent from this jurisdiction to another, for analysis or use in legal proceedings, what are the aspects to be considered?


  15. 15.

    What are the company’s public disclosure obligations about the internal investigation in this jurisdiction?


  16. 16.

    Are public company statements relating to employee misconduct protected from defamation claims?


  17. From the employee’s perspective

  18. 17.

    What is the law, policy and enforcement track record on individual accountability for corporate wrongdoing?


  19. 18.

    What is the employee’s obligation to speak with the company in an internal investigation?


  20. 19.

    What are attorneys’ roles representing the company and representing the employee, and who should explain these roles to the employee?


  21. 20.

    May an employee appoint its own counsel in an internal investigation?


  22. 21.

    Who pays for employee representation?


  23. 22.

    May employees enter into joint defence agreements? With whom?


  24. 23.

    Do employees have any constitutional or basic legal rights that they can rely on during government and internal investigations?


  25. 24.

    Who owns the documents and electronically stored information within employees’ possession or control and how can employees protect their privacy rights in this context?


  26. 25.

    What are the employee’s responsibilities if there is a parallel civil proceeding against the company or against the employee?


  27. 26.

    What should employees do if they are sued by shareholders or other private parties as a result of an investigation?


  28. 27.

    What are the employees’ responsibilities to comply with law enforcement investigations, subpoenas and searches?