This second edition of Employee Rights presents the views and observations of leading internal and government investigation practitioners in key jurisdictions around the globe, including Brazil, Germany, Singapore, Switzerland, United Kingdom and the United States. From responding to allegations of assault, harassment, sexual harassment, improper use of corporate funds or assets, the development of the #MeToo movement and other similar movements, to dealing with shareholders lawsuits and the increased global enforcement of anti-corruption laws, a company’s need to investigate employment-related issues arises more frequently today than it has in the past. Most allegations against a corporate entity or its C-suite and senior executives – including employee, customer, community, regulatory and governmental complaints or concerns – extend into the employment sphere. CEOs have been required to resign, step down or were fired because of displays of bad judgement, alleged misconduct, and ignoring or failing to appropriately address allegations of serious misconduct. In the past 18 months, Jerry Stritzke of REI, Brian Krzanich of Intel, Ron Black of Rambus, Brian Crutcher of Texas Instrument, Travis Kalanick of Uber, Roger Ailes of Fox News, Dov Charney of American Apparel, and Harvey Weinstein of The Weinstein Company were among them. Consequently, boards are confronted with how to respond when allegation of sexual harassment and other impropriety are alleged against C-suite or other senior executives. A company board’s fiduciary duties compel it to take all necessary action to protect the company. This creates serious legal and reputational concerns for a corporate entity, which may require the assistance of experienced employment and white-collar attorneys who can efficiently and sensitively examine the truth of the allegations and help the corporate entity determine the best path forward.
An employee facing an internal investigation has a number of rights that the corporate entity, employee and their counsel should consider at the onsite of the investigation. This is the case regardless of whether the employee is a witness or subject of the internal investigation. Additionally, complication arise from the fact that an employee’s rights may vary based on the jurisdiction, type of company (public v privately held), corporate policies of the entity, the employees positon and seniority within the entity and whether a governmental regulatory or criminal enforcement agency is, or may become, involved. If governmental regulators or criminal enforcement agencies are involved and the corporate entity is the subject of the investigation, its people, policies and procedures will be at issue.
There are differences between investigations in the US and foreign jurisdictions. In the US, a proper Upjohn warning clearly communicates to an employee that the company’s counsel represents the company and not the employee; if necessary, the company can use the threat of disciplinary action to encourage its employees to cooperate. Internal investigation conducted in foreign jurisdiction, on the other hand, because of the absence of at-will employment and privacy rights in those jurisdiction, may have less leverage in securing an employee’s cooperation and fewer options for disciplining employees who fail to cooperate with an internal investigation. Corporate entities with employees in foreign jurisdictions and employees employed in foreign jurisdictions must be cognisant of the legal and cultural differences regarding the employer-employee relationship in each jurisdiction.
There is no one-shoe-fits-all in the context of an internal investigation; corporate entities, general counsel and HR professionals engaged in an internal investigation should consider the principles addressed in the responses to the questionnaire when they consider conducting an internal investigation. The answers to the questionnaire are intended to provide guidance and information about employee rights during a corporate entity’s internal investigation. They highlight the issues and consideration that are applicable to a corporate entity and its employees.
We want to thank all of the contributors who prepared submission for this project. They have taken time from their practice to provide insight and observations that will assist corporate entities, practitioners and their clients in navigating the minefield associated with an internal investigation.
Readers should be aware that the answers to the questionnaire are intended to be an overview of laws (not legal advice) and that even within each jurisdiction, laws and court interpretation of those laws may vary by jurisdiction.