How Place Shapes Our Investigations

Transcription

1 How Place Shapes Our Investigations Perspectives from Canada, Australia, and throughout the U.S.A. Stacey Perrin Moderator San Francisco Bay Area Global Director, Employee Relations and HR Compliance SAP What we will cover today A (nearly) around-the-world look at how our various jurisdictions influence key aspects of our investigative practices Who may conduct investigations Types of investigations; client base Substantive and style differences How courts and tribunals deal with investigations Legal framework 1

2 Cheryl-Anne Laird Director, Livingstones Brisbane, Australia Practice encompasses all states and territories of Australia, with some work in New Zealand Ashley Lattal Toronto, Ontario, Canada Lawyer, Investigator, Mediator Lattal Law Conducts investigations principally in Ontario Deborah Shapiro New York, New York Lawyer, Investigator Deborah A. Shapiro, LLC Practice encompasses New York state and New York City metropolitan area 2

3 Diane Citrino Lawyer, Investigator Giffen & Kaminski, LLC Cleveland, Ohio Practice encompasses Ohio, Illinois, and the Midwest more broadly Rebecca Speer San Francisco, California Lawyer, Investigator Tribù Partners LLP Practice encompasses SF and greater Bay Area, including Silicon Valley, and points beyond Restrictions on who may conduct investigations? Training requirements? Some jurisdictions impose no licensing requirements. But several do either as an attorney or private investigator. Licensing requirements in most cases do not apply to in-house investigators. No specific training requirements, although training/experience will be scrutinized in litigation, and standards of care must be met. 3

4 Type of clients you have, and most common subject matters investigated? Trends? For many of us, clients include both private and public sector organizations. In addition, not-for-profit organizations and professional firms. Bullying/harassment, discrimination (particularly gender discrimination), and retaliation claims remain common. Some of us at times investigate particularly serious forms of misconduct (e.g., aggravated sexual harassment/rape), and compliance-related issues (conflicts of interest, financial abuses) Laws affecting the investigative process or setting standards of care? Standards of care are not specifically codified for any of us. However, collectively, we revert to case law, administrative guidelines, and a client s internal policies/protocols for general guidance and (in the case of a client s policies) specific requirements. The broad principle of due process of a fair and effective process in particular influences our work. Laws or customs affecting interviewing practices? We follow both similar and divergent practices around Confidentiality and other witness admonitions Permitting someone other than the witness to attend an interview Recording interviews Setting the location of an interview 4

5 Any timing requirements that apply to investigations in your jurisdiction? No overarching specific timing requirement, although we respond to and comply with -- Client needs (and pressures!) The general expectation (and requirement) that investigations will be conducted promptly Specific statutory requirements applicable to particular subject matters (e.g., Title IX, workers comp) Employer policies governing internal investigations Any documentation that principals may/must receive? In general, no overarching legal requirement exists to provide particular documentation, such as our interview notes or a copy of a written complaint. (And, in some cases, we might be prevented from doing so in order to ensure attorney-client and work product protections.) We will provide or show a complainant, respondent, or witness documents -- When required by a client s policies or practices, or by any specific applicable statute At our discretion, as needed in the course of the fact-finding process Treatment of the attorney-client privilege? For some of us, how the attorney-client privilege is treated in investigations is evolving; for others, it is settled An investigation is not privileged just because we are attorneys; privilege attaches to communications in furtherance of legal advice (which most of us do not provide with our investigations) We establish or try to bolster the privilege in different ways: e.g., some of us contract directly with a client s outside law firm (as opposed to the underlying client); some of us avoid doing so (due to licensing requirements and other considerations) We expect that the privilege will be waived at the client s discretion in any ensuing litigation 5

6 Standards of proof applied in developing findings? We all seem to apply a similar standard of proof Balance of the probabilities More likely than not Preponderance of the evidence Any external or internal appeals process required or provided in your jurisdiction? In our jurisdictions, appeals or reviews of investigations variously occur pursuant to A client s internal policies and protocols Relevant statutes In litigation Anything particular unique or unusual in your jurisdiction? Australia follows principles of natural justice In Ontario, sexual and personal harassment are considered workplace safety issues and are governed by the Occupational Health and Safety Act (For the most part, we view other oddities that we encounter in this work as normal!) 6

7 Thank you! Cheryl-Anne Laird Livingstones Brisbane, Australia Ashley Lattal Lattal Law Toronto, Ontario, Canada Deborah Shapiro Deborah A. Shapiro, LLC New York, New York Diane Citrino Giffen & Kaminski Cleveland, Ohio Rebecca Speer Tribù Partners LLP San Francisco, California 7