How do you conduct a workplace investigation involving a cross-border executive?

Rebecca Wise (00:00:05)

Today we're talking about cross-border workplace investigations, which is an area that's coming up increasingly for us. Together, we'll walk through some of the legal and practical considerations that organizations should have in mind when dealing with a workplace investigation that involves employees or issues on both sides of the Canada-US border.

I will say that although we're focused today on the Canada-US issues, a lot of the guidance that we're providing today is equally applicable when you're dealing with other jurisdictions.

So, let's start at the top. Ally, what's driving this increase in internal investigations across borders?

Alexandra Lawrence (00:00:33)

So, a couple of things. First, organizations are doing business across more borders than ever with clients, operations, and partners in multiple provinces and states.

Relatedly, the workforce itself is dispersed. Many businesses have employees sitting in multiple jurisdictions, so almost any workplace investigation now has the potential to become a cross-border matter. And that's true whether you're dealing with a harassment complaint, a financial irregularity, or some other issue. The cross-border element surfaces quickly once you start identifying who's involved and where they're located.

Erica, what's the first complication that organizations tend to run into when faced with a cross-border investigation?

Erica Goldman (00:01:13)

So, often it's the governing law: figuring out which jurisdiction’s rules actually apply to the investigation. For example, let's say you have a senior executive who's based in Toronto, and a complaint comes in from someone on the team who's based in New York. Right away, you're asking, “Is this governed by Ontario law, US state law, federal law in the United States, or some combination of all of the above?” And the answer will impact everything from how you scope the investigation to what procedural protections might apply.

Rebecca, are there certain considerations that should be kept in mind when interviewing witnesses across borders?

Rebecca Wise (01:48:27)

Absolutely. Witness rights differ as between Canada and the United States. That includes different rules around recording interviews, whether a particular witness is entitled to have counsel present, what information needs to be disclosed at the outset or what notices need to be given to witnesses at the outset of an interview, and also what information needs to be shared with witnesses at the conclusion of the investigation.

I think the thing to keep in mind is that getting the process wrong in one jurisdiction can actually compromise the entirety of the investigation, so it is really important to have these issues in mind before you even speak to anybody.

Alexandra Lawrence (00:02:24)

And another issue to be mindful of is privilege.

The rules on what's protected differ between Canada and the United States, and so a document or a communication that is clearly privileged in Canada may not be privileged in the US, or vice versa. This means that privilege issues should be mapped from the start and before documents are shared or interviews are conducted.

Once privileged material has been disclosed in a jurisdiction that doesn't recognize the protection, it is very difficult to put that back in the box.

Erica Goldman (00:02:53)

And on the data side, moving employee information across the Canada-US border isn't always as easy as people assume. Canada's privacy rules impose restrictions on how personal information is collected, used, and transferred. And in the United States, you might be dealing with state-level privacy laws on top of the US federal requirements.

Although we're focused on the Canada-US cross-border nature investigations, I also should flag that if employee data is stored in a cloud system, for example, it could be sitting in a server in another jurisdiction entirely without anyone realizing it, so before you start pulling documents or accessing systems, you need to understand where the data lives and what rules apply to accessing it.

Rebecca Wise (03:35:11)

Those are really great points, and I think the key takeaway from today for organizations is that these issues need to be identified early, and it's really important to have a team that's working seamlessly on both sides of the border. Once an investigation is underway, you're often moving quite quickly, and it can be really difficult to course-correct mid-way through an investigation.

So again, just emphasizing the importance of thinking about these issues right from the get-go.

Thank you very much for watching.