Employment lawyer shares insights on corporate investigations in hybrid work environments across jurisdictions
Recent high-profile decisions by companies like Amazon to push for a return to office (RTO) have reignited debates about the value of remote and hybrid work models.
Advocates of RTO often emphasize the importance of in-person connections, but research suggests that hybrid work can reduce turnover and increase profits.
For instance, a study at Trip.com revealed a 35% drop in employee attrition under hybrid policies, saving the company millions of dollars annually while maintaining productivity and satisfaction.
This shift underscores both the challenges and opportunities in managing employee behavior and compliance. Hybrid work provides flexibility but demands careful attention to processes like corporate investigations, where efficiency, fairness, and legal requirements are critical.
Corporate investigations are vital for addressing misconduct and protecting organizational integrity. With hybrid models becoming the norm, employers must rethink strategies for evidence collection, employee interviews, and policy enforcement.
According to Francis Chan, co-founder and executive director of Titanium Law Chambers LLC, hybrid work has transformed how employers manage the process by integrating remote communication.
“In the past, one challenge employers routinely faced was having a respondent or witness avoid interviews by staying out of the office... But now, with communication tools like Zoom and Microsoft Teams, there’s really no excuse for an employee to refuse an interview,” he explains.
Chan also points out that hybrid work allows for more discretion when handling sensitive allegations.
“Certain sensitive allegations may be better investigated in the absence of the accused employee. For example, if the accused is working from home, employers can search their desk or laptop without raising alarm... This is also a useful alternative to suspension, which can lead to complications such as accusations of prejudgment,” he says.
Chan highlights how hybrid work helps investigations proceed without workplace disruptions.
“If there’s a complainant involved, such as in cases of harassment... hybrid work allows you to manage the situation by keeping the complainant and accused apart without raising any workplace tension,” he adds.
However, Chan cautions against over-reliance on remote tools.
“Extra precautions need to be taken during remote interviews. For instance, you may not know who else is in the room with the respondent... Their lawyer, a union officer, or even someone holding up cue cards could be there,” he warns. “Another alternative is querying respondents via email, which can be preferable as all questions and answers will be on record.”
Cross-border investigations come with unique challenges, particularly in complying with local laws. Chan emphasizes the importance of understanding jurisdiction-specific requirements to avoid legal pitfalls.
“Don’t assume the laws in another country are similar to those in your own... A common mistake is thinking, 'Oh, we’re all Commonwealth jurisdictions, so it should be the same,' but employment laws and investigation requirements can be very country-specific,” he explains.
Chan illustrates this with an example from his practice: “I once led a cross-border investigation involving allegations of corruption and fraud across three jurisdictions... It was crucial to work with local forensic accountants and legal experts in each jurisdiction to ensure compliance with local laws and build a solid case.”
He also highlights potential risks with trade unions.
“In some countries, before you even start an investigation, you may need to inform the union and have a union officer present during interviews... Skipping this step can lead to backlash,” he notes.
Data transfer laws further complicate cross-border cases.
“Some jurisdictions have blocking statutes that prevent information and data from being transferred out of the country... or require approval from relevant authorities before certain investigative steps can be taken,” Chan says. “Understanding these laws is critical to avoid severe repercussions.”
The collection of digital evidence—a cornerstone of many corporate investigations—must align with data privacy regulations. Chan emphasizes the need for clarity in data collection policies.
“Employers need to ensure their internal investigation procedures are up to date and legally compliant... If these policies are part of the employment terms and conditions, failing to adhere to them could amount to a breach of contract,” he says.
Chan advises transparency when dealing with employee devices.
“If an employee’s personal data is on a company laptop, allow them to remove their personal files under supervision... This ensures the company isn’t accused of tampering, while also preventing the employee from deleting incriminating evidence,” he explains.
He stresses the principle of collecting only what is necessary: “Most data privacy laws go by the standard of what is reasonable and necessary... Over-collecting data or taking entire files when only specific documents are relevant can lead to legal complications,” he warns.
Chan also shares insights into handling sensitive data across jurisdictions.
“If the investigation involves employees in different countries... you must consider each jurisdiction’s data privacy laws. Some may require explicit consent for data collection or impose strict penalties for violations,” he adds.
Virtual interviews have become an essential tool in hybrid investigations, but they require careful planning and execution. Chan shares practical advice for ensuring effective virtual interviews.
“As far as possible, insist that the video is turned on during virtual interviews... This allows you to observe body language and assess if the interviewee seems comfortable,” Chan says. “It’s also a way to detect if something is off, like if someone is coaching them off-camera.”
He also stresses the importance of clarity. “Sound quality is critical because whatever is said during the interview could become evidence later... If any part of the interview is unclear, you must get the interviewee to repeat themselves,” he advises.
Finally, Chan recommends setting clear ground rules. “Make it clear if the interview will be recorded and ensure the interviewee understands that confidential documents shared during the process are not to be photographed or copied... This helps maintain the integrity of the interview,” he says.
Chan also highlights potential issues, such as unauthorized recordings. “Sometimes, interviewees may record the session without consent... or take screenshots of confidential documents shown during screen sharing. Employers need to be vigilant and set clear boundaries,” he warns.
The use of AI in corporate investigations is on the rise, offering tools to enhance efficiency and analysis. However, Chan urges caution in relying too heavily on AI.
“AI can help with things like summarizing interviews or generating reports, but it’s not at a stage where it can replace human investigators,” he says. “At the end of the day, AI needs to be double-checked to ensure the output makes sense.”
Chan points out that the human touch remains essential. “If employees feel they’re being treated unfairly or that an investigation was entirely driven by AI, they’re less likely to accept the outcome... Human investigators bring the judgment and fairness that AI cannot replicate,” he explains.
Chan also highlights how AI could evolve. “We might see AI being used for credibility assessments or even drafting investigation reports... But the technology needs to be handled responsibly to ensure accuracy and fairness,” he says.
Chan emphasizes the importance of training HR and legal teams to handle investigations effectively. “Investigations shouldn’t be treated as an emergency button to press only when needed... Teams need to be trained and ready to conduct investigations properly,” he says.
Structured processes are equally critical. “Clear policies ensure consistency and help teams avoid mistakes... This is especially important for multinational companies where cross-border investigations are more common,” Chan explains.
He also warns against outdated practices. “Policies that assume employees are always in the office won’t work in a hybrid environment... Procedures need to reflect current work arrangements and be updated to comply with any legal changes,” he notes.
