HR Investigations Rising in the Post-Covid Environment

Following the Covid-era’s economic concerns and travel restrictions, many multinational companies are taking a closer look at their overseas operations. In some cases, that may include a deep dive into the conduct of executives based in Taiwan. Below are some things to keep in mind when these types of investigations are initiated.  

Importance of efficiency: Companies will often become aware of potential or actual wrongdoing via whistleblowers or other evidence, and it is important to run investigations ethically, professionally, and swiftly, before evidence disappears or memories fade. An investigation needs to be run neutrally and fairly without pre-planned results or conclusions, but it must also be conducted efficiently. An investigation that drags on and becomes a “fishing expedition” can interfere with business objectives and create unnecessary animosities within the workplace. 

Correctness is essential: An office under investigation is often unable to heal and return to appropriate productivity if the investigation is incomplete. In these situations, achieving the desired outcome necessitates approaching the work without a predetermined agenda. The result of an investigation should be a report that demonstrates enough fairness, truth, and understanding of context that anyone reading it can see the essential correctness of the conclusions reached.  

In our casework experience, we have sometimes been able to clear executives of wrongdoing by unraveling key misunderstandings or confirming that a complaint was made in bad faith. In other cases, an investigation into one employee’s potential misconduct uncovered a range of unhealthy management practices. In many cases, the investigation can never unravel the complete truth of what happened, but at least it can come close to identifying what most likely occurred.  

Efforts to impede: Sometimes efforts to impede an investigation are more actionable than the original issue ever would have been. In one of our favorite cases, a multinational company’s Taiwan in-house counsel sent an email to warn his country manager that he was under investigation – and that the corporate IT staff were reviewing his email communications!  

Another case involved a country manager who emailed investigation interview participants to tell them not to discuss the investigation with any colleagues, but then privately briefed them on what she wanted them to say. We discovered this when the first few employees used identical phrasing in the first 10 minutes of their interviews. In our work with many multinationals, we have seen many senior executives get terminated for lies and cover-ups for conduct that would not have led to discipline.  

Company equipment: In recent years, it has become more common for companies to let employees bring and use their own devices, ostensibly because the employees will be happier using their preferred brand of phone, tablet, or computer.  

The problem is that during an investigation of wrongdoing or in the aftermath of a termination, employers have little to no control over these devices. Employers may be able to deny former workers access to the intranet and email, but obtaining timely access to any electronic device that does not officially belong to the company is extremely difficult, if not impossible. 

Messaging apps in the office: Many managers wrongly think that when they use WhatsApp or Line to send horrible messages to employees, the conversation is “private” and can’t be reviewed by a court. We’ve seen aggrieved employees pull out binders filled with hundreds of pages of messaging screenshot printouts, all of which could be produced as evidence.  

Conversely, we have seen employees present very thorough defenses against misconduct allegations with such messaging screenshots to demonstrate context and timing. The informal messaging groups found within many offices are sometimes filled with content that can be defamatory and poisonous to a good working environment.  

What to do: In addition to our work for multinationals, we have sometimes been hired by senior managers to counsel them on how to respond to an investigation. It’s essential to be honest, provide documents and information that will shed light on what happened, and engage with the process in good faith. Establishing a chronological timeline is important, and organizing the emails and messaging screenshots to allow an appropriate and clear explanation of the situation is essential.  

— By John Eastwood and Heather Hsiao, partners at the Eiger law firm who regularly work with SMEs and multinationals on their employment matters.