Page 33 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

privacy laws and whether the GDPR or an individual country’s regulations apply. In doing so,
counsel should consider where personal data is located, on what basis it will be processed, and how
that data will be relocated or transferred.

C. Employee Rights and Labor Laws

Access to information is often a challenge Investigatory Counsel face during an
internal investigation. A company’s own employees are often the best sources of that information.
While many U.S. employees generally must cooperate with internal investigations, employees
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in other countries can refuse to do so even if they are not the target of the investigation. Even if
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required to cooperate, employees abroad often can take advantage of expanded rights (similar to U.S.
Miranda rights or other rights under the 5th Amendment), which ultimately limit the practical extent
of that cooperation. Privacy protections in Europe have even been extended to limit an employer’s
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ability to access certain employee information, making it harder to gain access to such data without
express employee notice and consent. Accordingly, practitioners must consider the many ways
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in which stricter labor and employment laws can substantially hamper an internal investigation and
consult with local lawyers on what requirements must be met.

D. Culture and Language Barriers

Just as cultural and linguistic sensitivities matter in every other form of cross-
border interactions, they also matter for investigations. Employees whose first language is not
English may require or desire to have an interpreter present during interviews. In countries with a
history of governmental suppression or distrust, interviewers may want to steer clear of words like
“investigation,” “whistleblower,” and “informant” in favor of more neutral terms like “discussion,”
“analysis,” “employee,” or “colleague.” Investigatory Counsel should take into account body
language during interviews. For instance, looking someone directly in the eye may be considered
rude in some countries, but not others. Similarly, a more direct interview style may be effective in
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some jurisdictions, but will be ineffective in others. If Investigatory Counsel anticipates cultural
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or linguistic issues in their investigation, they should consider hiring multilingual staff, translators, or
local professionals to aid in overcoming these difficulties.

100 See, e.g., Nuzo v. Northwest Airlines, Inc., 887 F. Supp. 28, 33 (D. Mass. 1995) (concluding that “plaintiff’s discharge for failure
to comply with orders to cooperate in a company investigation did not interfere with any contractual or constitutional rights under state or
federal law”).
101 For example, in Brazil, an employee can refuse to participate in any internal interview and this refusal is neither a criminal
offense nor a labor fault. See, e.g. The Investigations Review of the Americas 2019, Global Investigations Review, Sept. 2018, available
online at https://globalinvestigationsreview.com/edition/1001208/the-investigations-review-of-the-americas-2019.
102 For example, in Australia, “the ability of an employer to require cooperation with an internal investigation is curbed by
the operation of the privilege against self-incrimination – more commonly known as the right to silence.” Nicholas Turner, Internal
investigations: are employees required to cooperate?, Oct. 11 2016, available online at https://www.dlapiper.com/en/australia/insights/
publications/2016/10/internal-investigations/.
103 For example, in 2017, the European Court of Human Rights ruled that employer monitoring of an employee’s personal
communications during work time breached his privacy rights under article 8 of the European Convention on Human Rights. The decision
is available online at https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-177082%22]}.
104 See, e.g. Alicia Raeburn, 10 Places Where Eye-Contact Is Not Recommended (10 Places Where The Locals Are Friendly), The
Travel, Sept. 12 2018, available online at https://www.thetravel.com/10-places-where-eye-contact-is-not-recommended-10-places-where-
the-locals-are-friendly/.
105 See, e.g. Pamela Leri, “Interviewing Across Cultures,” available online at http://fordschool.umich.edu/downloads/
InterviewCrossCultures.pdf (outlining general regional trends in interview styles).

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