The wave of crises at Uber Technologies Inc. has forced the ride-hailing company to make a series of consequential legal and public relations decisions—keeping the public and investors in the loop, or not at all. Uber must now decide whether, and how much, to publicly release an internal investigation into allegations of sexism and sexual harassment at the company.

The investigation of the San Francisco-based company, led by former U.S. Attorney General Eric Holder Jr., now a partner at Covington & Burling, is reportedly nearing its end. The Wall Street Journal and others reported that the findings were set to be disclosed this week to a subcommittee of the company's board and then released as an executive summary to employees and the media, likely with redactions, in early June.

Jason Doiy

Companies regularly face questions about how much of any internal report should be distributed to the public. Attorneys and other observers unaffiliated with Uber presented a variety of viewpoints in interviews with Corporate Counsel about how they believe a company in Uber's position should handle Holder's report.

Uber's case is unique, the lawyers said. While some said no company should be forced to release an unredacted report that could breach ethical and privacy protections, others said Uber could use broad disclosure of the report to better highlight how the company is maturing.

“This is an opportunity for Uber to draw a line in the sand—that was then, this is now,” Richard Levick, chairman and CEO at public relations firm Levick, said of the release of information from Holder's report. “This is the tipping point … where they can either move on or stay in this terrible morass.”

A spokeswoman for Covington declined to answer questions about the investigation when reached by Corporate Counsel. Uber did not respond to Corporate Counsel's requests for comment on the release of Holder's report, but The Wall Street Journal reported that an Uber spokesman said, in the interest of privacy, an unredacted version of the full report would not be released.

Uber launched the investigations after a former Uber software engineer, Susan Fowler Rigetti, published a blog post in February that portrayed the company's work culture as biased against women and where managers ignored sexual harassment complaints she and other female workers made. Just hours after Fowler Rigetti published her account, Uber CEO Travis Kalanick tweeted that what's described in the blog post is “abhorrent & against everything we believe in.” He ordered an “urgent investigation” by Uber chief human resources officer Liane Hornsey.

Hornsey and Uber board member Arianna Huffington, according to the WSJ, launched an internal review to get employee feedback and take questions. Perkins Coie, which Uber originally hired to investigate Fowler Rigetti's particular claims, is also interviewing employees for a broader investigation, the WSJ reported.

That review is a companion to Holder's three-month inquiry. The Covington team interviewed certain employees in the firm's San Francisco office about their experiences at Uber, the WSJ reported.

Uber's Tough Choices

Uber has faced an onslaught of recent challenges to its public image. Federal investigators are looking at the company's use of regulator-skirting software called “Greyball.” Uber recently fired autonomous vehicle lead Anthony Levandowski amid a spat with rival Waymo—Google's self-driving car spinoff—over alleged trade secret theft. In New York City, the company underpaid drivers.

How Uber handles the release of Holder's findings appears to be all the more significant.

There are several ways a company can manage the release of a potentially negative internal report, said Levick, whose firm has been involved in a number of high-profile crisis management campaigns, including the response to the 2010 Deepwater Horizon oil spill. A company's options would include releasing a summary of the findings or, over time, slowly dripping the information contained in the report. And a company can release its full report, with certain information, such as employee names, redacted for privacy.

“If it's a summary, the questions by the press will be: 'What about the full report?' and that will dominate the narrative,” Levick said. “And the other problem if they do a summary is ensuring that [the full report] is not going to leak.”

The public and Uber's employees both expect transparency, Levick added. “I think we've seen enough examples where there wasn't [transparency] that caused significant blowback,” he said. Levick cited, for instance, Baylor University's decision not to release a full report on sexual assault claims against school football players.

At the end of the day, distributing the detailed report with redacted information is the best way forward for Uber, Levick said. “By releasing the full report, names redacted, they can make this a turning point,” he said. “And there should be three messaging points: This is what happened, this is what we're doing to address what happened and this is what we're putting in place to make sure it never happens again.”

Employment lawyers, however, aren't so keen on the idea of releasing a full, detailed report, regardless of whether employee names are redacted.

William Milani, a partner at Epstein Becker & Green, in New York, said employers must consider confidentiality and non-retaliation policies to be top priorities when faced with whether to publish an internal investigation.

If a lengthy report with potentially identifiable information does get released, Milani noted, “there will be a lot of speculation of who might have said what,” which could “chill employees in the future from raising issues.”

'None of Their Damn Business'

Deborah Kelly, a partner at Manatt, Phelps & Phillips, who has conducted corporate investigations for big companies, said she generally tells clients to keep investigative findings brief—at least the portion that will appear in writing.

“It's not something they have to share with the public because it's none of their damn business,” Kelly said. “The norm is if you're representing a company and you're brought in to do an internal investigation, you're brought in to get the facts and call balls and strikes. You're just collecting information … in a prompt and thorough way that protects all the witnesses to the greatest extent possible and promises no retaliation. To pull all of that off, you want this to be as confidential as you can.”

Uber's case, Kelly said, is atypical though, simply because the company is facing intense public scrutiny and should consider whether choosing secrecy over transparency will potentially damage its brand. Kelly said she thinks Uber was smart to hire a third party to investigate claims and to make the findings in some part public.

That said, her advice to Uber or any company is to “give a real high-level summary” of the investigation's findings to the board of directors. She gave a hypothetical example of what that summary might look like: “We interviewed this many people and … although there was nothing unlawful found, there were issues with the culture we will be addressing right away.”

Kelly said she makes it a point to avoid sharing investigation findings with her clients in writing beyond a high-level executive summary.

Once the summary is prepared, she typically gives a briefing or oral presentation and answers any questions for the company's board of directors at that time. “As long as they have questions, you stay there,” said Kelly, who adds that she doesn't put these questions and answers in writing either. “What good comes of writing it all up? There's no document to be subpoenaed.”

Kelly said that not only can written findings be used as evidence during litigation with current or future claims, there's always the possibility of a leak to the media or to the public.

“The more specific you are [in a report or executive summary] the more you put confidentiality in danger,” she said. “No employee, no matter how good or bad they are, is expecting what they reported to be broadcast all over CNN.”

Remedial Steps

No two investigations are alike, said Illovsky Law Office principal Eugene Illovsky, a former Morrison & Foerster partner with a corporate internal investigations practice. Still, he said, speaking generally, a critical part of many corporate investigations is the presentation of findings to employees.

“There will be carefully set-up meetings with employee groups. There will be presentations,” Illovsky said. Part of any presentation, he said, would include preparing “remedial steps” a company can take to fix internal issues and send a signal to employees about the company's culture and how it might change.

“I've found that the bigger impact on culture comes not really from the findings, the details and the investigative methods the board used, but really from the remedial steps a report like this will quite often have,” Illovsky said.

Employment lawyers said that at the very least, additional training for all employees could be necessary after an investigation and the legal department will have to work with HR to identify areas where it can improve or better enforce policies

Any showing by Uber that it took harassment and discrimination claims seriously, according to employment attorneys, could go a long way with current employees and even future candidates.

Revelations about company culture could even boost recruitment efforts for the legal department by providing transparency into how the department works, said Sarah Blumling, founder of legal recruiting firm QueensBench.

A chance to peer into a company's internal structure can give prospective in-house attorneys insight into “really fascinating legal work,” that the law department could be tackling in the near future, Blumling said. She added that an internal investigation can reveal regulatory challenges, structural and organizational needs or shareholder demands.

“All those things provide huge intellectual challenges to legal,” Blumling said, though she noted the internal investigation element could scare away risk-averse candidates.