Managing Cross Border Internal Investigations M O D E R AT O R / PA N E L I S T: PA N E L I S T S :
E L E A N O R M I C H A E L
T H U Y
B E N M E N A S H E , M I N E R , M A R L A
P.
T R A N
A S H L E Y
C O S E L L I ,
M O O R E
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trained to do full-scale investigations.
conducts an exit interview. Someone leaving
I.
Sometimes these departments count on us
the organization brings forward an allegation,
to help them, whether in training them to
which plays into ethics.
Introduction
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conduct investigations or actually coming
Ethics is who are we, and maybe it is a
together hand-in-hand with them to handle
little bit more than what we do. Compliance
investigations. Consequently, there is not
and ethics drives the inner workings of an
just the core set of compliance lawyers or
organization. A company may receive the
investigators. Companies get a lot of work
traditional HR type of complaint at first
that burns up many resources and so the
by employees who are a little bit more
more resources, the better. Companies
willing to speak up. Then, it may require a
are fortunate if they have a pretty big
dedicated investigator to go and investigate
team and collaborative group to devote to
the traditional HR matter. When this
investigations.
occurs, it leads to the perception by those
since 2010. The number of substantiated
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in the organization that the company does
cases by percentage have also gone up from
II. Investigations as a Practice
care—someone has spoken up, and other
Internal investigations have increased in frequency. Securities and Exchange Commission (SEC) whistleblower claims are up 76% since 2012.1 Equal Employment Oppor tunity Commission (EEOC) harassment cases just last year are up 50%, likely an unsurprising phenomenon given the #Metoo era.2 The NAVEX 2018 Annual Report,3 states there has been a 56% increase in the reporting rate for internal complaints
36% to 44% since 2012.4 What companies are asking is: 1)
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do they need internal lawyers who know
When managing the help line or
investigations; 2) do they need external
compliance line, it is key to have partnerships
lawyers who know investigations; and
with other stakeholder groups within
3) do they need non-lawyers who know
the organization, such as the Labor and
investigations? The answers to these questions
Employment Counsel, HR group, or Internal
are: yes, yes, and yes. This trend is not going
Audit. From a traditional compliance
to slow down.
perspective, whether a Foreign Corrupt
The need for internal investigations
Practices Act (FCPA) investigation or fraud
extends beyond the legal field. In compliance
investigation, information from trusted
departments, the lawyers (and staff ) are
sources and background on personnel and
expected to do a little bit of everything,
personalities is critical; sometimes where there
including picking up purely Human
is smoke there is fire. Sometimes a request for
Resources (HR) matters, quality issues, or
an investigation will come in through the
health, safety, and environmental matters.
HR group, even when the original complaint
This is because the people working in
looks like it was a traditional HR matter. For
those particular disciplines are not always
example, an allegation may arise when HR 52
Currents 24.1 2020
individuals now feel empowered to speak up. Further, the organization now has people who are picking up the rocks in an effort to look into potential violations and scrutinize the compliance culture. Unless people are speaking up, compliance departments do not know the problems or where to start looking to fix those problems within an organization. A company should worry if it is not getting calls through a helpline, and someone needs to go to management and bring up the company’s branding issue. There should be complaints. A company with operations all over the world and tens of thousands of employees and contractors in numerous countries that is not getting complaints (at least through a helpline) either does not know what is going on in the organization
