Conducting an international employment investigation is essentially a game of three-dimensional chess: an in-house lawyer has to think and act across multiple legal dimensions. Here are some key practical and strategic considerations for making the right moves.

Establish the dimensions of the playing board and the players.

The first step is to determine the international structure of the playing board. Counsel should figure out who and where the players are: which individuals and legal entities are potentially involved, what external advice and support will be needed, and who the ultimate decision maker should be as to any actions to take after the investigation is complete.

Determine what are the goals and potential outcomes of the investigation.

Knowing what goals and outcomes are possible will help with making critical decisions as to how to proceed along the way, and what to prioritize.

A goal of an investigation could be, for example, to take prompt and effective remedial action in response to a sexual harassment complaint made to a hotline. Since local employment laws will apply to the alleged harasser, there may be specified and limited legal bases for termination, a specified process for an investigation, and even a specific limited timeframe for imposing discipline and dismissal in that jurisdiction. An effective investigation in such a case may have to be one that provides the relevant factors for the local decision maker to determine whether or not applicable termination grounds exist, and provides the necessary level and type of evidence required to prove the grounds in disciplinary proceedings. Noncompliance with these requirements may infringe the rights of the accused employee, resulting in an employee reinstatement or significant damages.

Suspending the subject of an investigation (even on paid leave) and shutting off system access, should also be handled in accordance with that employee's locally applicable employment laws. An automatic “knee-jerk” suspension without the ability to show reasonable and proper cause for the suspension may violate an employee's rights.

Another common investigation scenario involves looking into whether an employee is preparing to compete, taking confidential information, or planning a team move to a competitor. If the investigation violates the employee's legal rights, it may be impossible to prevail in a legal action against that employee.

Determine which jurisdictions' laws and internal policies matter.

The next task is to identify the countries and laws that may be involved. In cases involving mobile employees or activities that occurred in several locations, this information may not be entirely obvious, and employers may face choices between conflicting laws. The complainant and accused, witnesses, managers, decision makers and employing entities may all have different legal rights and obligations depending on where they are located, and sometimes this assessment will depend on complex choice-of-law rules.

Applicable written policies should be identified and gathered for reference. For example, an accused employee may have formal procedural due process rights set out in a written policy or regulation maintained by his or her employing entity.

Assess privilege and the “client team.”

The applicable rules on attorney-client privilege should be considered, as they may be substantially narrower outside the US. In the UK, for example, the scope of “legal professional privilege” has recently been in flux through a series of cases, and it currently appears that only the narrowest form of privilege, “legal advice privilege,” will apply in most investigation contexts. This privilege will not necessarily cover communications with third parties such as an external investigator, or notes of interviews with employee witnesses. And the “client” for purposes of protected communications will include only those individuals specifically tasked with seeking and obtaining legal advice either from in-house or external lawyers, and not to anyone beyond this core “client team.”  Communications with in-house counsel and clients may not always be privileged in some countries.

Therefore, once the potential goals and outcomes of the investigation are considered, it is paramount to determine whether and how communications and investigative work product can be properly protected under applicable privilege. Failure to do so may result in evidence from the investigation being disclosable and used against the company in a jurisdiction where an employee was dismissed, or litigation commenced.

Are employee data privacy rights implicated?

In addition to the above issues, it is important to identify the applicable data protection regimes, review the relevant internal notices, policies and compliance practices, and evaluate their implications for the investigation goals, procedures and outcomes. Before collecting and reviewing personal data, members of the investigation team should have a basic understanding of what constitutes personal data and how it must be handled under the applicable rules and according to the investigation protocol.

Many countries now afford individuals certain rights and require that specific steps be taken before their personal information can be collected, transferred outside of the country, or processed. If such steps are not followed, consequences could include an inability to use the information to take remedial actions such as dismissal, or a loss of protective contractual obligations otherwise owed by the employee (such as restrictive covenants). For example, under the General Data Protection Regulation (GDPR), employees in the EU must be sufficiently notified in advance through policies and data processing notices that their emails may be viewed for work-related purposes and targeted investigations. The scope and application of such policies must also be proportionate and narrowly tailored to avoid violating privacy rights under Article 8 of the European Convention on Human Rights.

The investigation team should also be conscious of a data subject's right to make a data subject access request (SAR) under the GDPR. This right means that some personal information—such as investigation notes of interviews relating to the employee, internal communications and correspondence about the matter—should be treated as potentially subject to production if not covered by applicable privilege.

Tahl Tyson, Shareholder at Littler, the world's largest labor and employment law firm representing management, is an experienced international employment lawyer, admitted to practice in the United States and as a solicitor in England and Wales.