Today we celebrate a closure for it was on this day in 1935 that probably the best-known baseball player in the history of the game, George Herman ‘Babe’ Ruth, retired. While many of his records were broken with the march of history, his career slugging percentage of .690 remains the highest in Major League history. He was an oversized character in every way, from the mammoth home runs that he hit, to his ingestion of hot dogs. While his lifestyle may not be considered best practices for today’s major leaguer to emulate, his name, nicknames and legend will live on as long as baseball is remembered.
I thought about Ruth as I begin a two-part series on how to formulate an effective best practices cross-border investigation based upon an interview I did with Mara Senn, a partner at Arnold & Porter LLP, who specializes in white collar defense and cases brought under the Foreign Corrupt Practices Act (FCPA). The interview was based on an article that Senn and a colleague, Michelle Albert, published in the FCPA Report, Volume 3, Number 1, entitled “Internal Investigations, How to Conduct an Anti-Corruption Investigation: Developing and Implementing the Investigation Plan”. Today I will review practices one through five.
- Offer Interview Translations
Senn believes that most people know English to a certain extent and that it is a very universal language nowadays. While many people outside the US have various levels of capabilities in a non-native language, when you get into the very detailed questions in an interview, they may have enough English skills that you assume they understand everything, but in fact, they do not. You may ask a key question, for example, about expense reports, maybe they understand conversational English, but there’s no reason for them to know expense reports. This makes it important to have someone present in the interview that speaks the witness’s native language, and just assume that there are going to be times where you’re going to need to call on that person. She cautioned that you should make it clear to the witness at the outset of the interview that you do not perceive a problem with their English and they understand the reason for the translator.
- Avoid Cultural Pitfalls
Here Senn noted that cultural pitfalls are really truly pitfalls and, unfortunately, they can be big deep holes that you do not know anything about, but you can fall into pretty easily. She provided the issue of personal privacy as an example, where most countries have a different concept of privacy, particularly about whether your work area is your own versus what really belongs to the company. In most states in the US, employees fully understand that your employer can come in and take anything from your office at any time, even if it is personal, because you’ve brought it to work. Yet in many other countries, this is not the case. Things at your desk generally are never touched or looked at by anybody else and that’s considered your sanctum where no one else can come. If you go in and do a regular document sweep, the way that you would do in the US, that could be perceived as horribly offensive. She cautioned you should seek local counsel guidance to understand what needs to be done and also explain to you the best way to do it without offending people.
She explained that you do not want witnesses to begin the interview process with a negative view of you and you want them to be cooperative in the interview. This makes it in your best interest to follow local cultural norms. Otherwise, interviews can become embarrassing and awkward at times, if you do fall into one of these cultural pitfalls.
- Observe Data Privacy Restrictions
Most American lawyers are aware of different data privacy restrictions and requirements in countries governed by the European Union (EU) and the US. Senn mentioned that some of that is related to employee and employment law; whether or not they have ownership of certain information, and then other parts of the law that really do have to do with data privacy, which means personal information that no matter what form it is in, it cannot be disseminated. But here the point under this best practice is that your analysis and response must go much further to satisfy the US Department of Justice (DOJ) if you want to claim that you cannot get certain information out of a country because of data privacy restrictions.
For instance if you have personal data that you are routinely sending cross-border yet when an investigation begins you claim that you cannot take it out of that same country, for instance Germany; the DOJ will take a dim view of that claim. Further, even if there is a data privacy law on the books, yet the country does not enforce the law, that could work against any data privacy claim as well. So you will need to be prepared to fully present persuasive evidence on this issue if you try and make such a claim.
- Comply with Labor Requirements
Similar to the long-standing Weingarten right of unionized employees in the US to have a representative present for interviews, in many countries outside the US there are Works Council and similar analogs in other countries, where, basically, the Works Council is responsible for the interactions between the employers and the employees. Moreover, employees have certain statutory or labor code based rights as employees, regardless of whether they are members of a labor union or not. These rights can drill down into the types of questions that you can ask or even prevent you from meeting with or interviewing certain employees.
Senn noted that you may well have to work through Works Council to make sure that the way you ask the questions, and those present for the company, are acceptable to Works Council. If you do not have this pre-approval it may be that the Works Council prevents you from meeting with certain employees. For each area that you operate in, you must engage the local legal counsel to determine what is the best way to work with the Works Council, or similar types of organizations, to ensure that you can get done what needs to get done in your investigation.
- Be Aware of Other Local Requirements
Points three and four certainly lead into Senn best practice No. 5. She believes it is incumbent that you work with local counsel in the country you are performing the interviews to garner an understanding of the witnesses rights and your obligations during any investigation. She explained that many ways a US lawyer would think about doing an investigation could be problematic in other jurisdictions. She gave the examples of taking pictures or physically removing documents from a location, which could be issues that you might face. You certainly need advice and counsel on what is legal and what might not be going forward.
Ruth and Senn; Senn and Ruth? Even if you do not immediately associate them, Mara Senn has once again provided the compliance practitioner with concrete steps to take around international investigations and their protocol. Tomorrow, I will consider her practices six through ten.
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© Thomas R. Fox, 2015