Managing a Cross Border Crisis - Are You Ready?

July 13, 2017

Korean media has recently reported that the Prosecutor's Office in Korea is investigating a claim that  McDonald's Korea may have violated  food safety rules based on the allegation by a family that their daughter contracted  hemolytic-uremic syndrome ( "hamburger disease") after consuming a hamburger at a McDonald's outlet in Pyeongtaek, Korea. Though McDonald's has denied responsibility, the investigation into McDonalds Korea, brings back memories of the Jack In the Box e-coli  crisis that resulted in the near destruction of the Jack in the Box brand. It also highlights the issues facing companies caught up in an international or cross border crisis.

Managing an international crisis or a crisis with cross border implications can be a daunting task. Especially if it requires internal investigations to be conducted at a foreign venue or an overseas subsidiary. Conducting an investigation can be  an emotion-charged, time-consuming process that requires expertise and effective planning. Are you ready to handle one?   Managers and other staff who investigate sexual harassment claims in an organization or even claims involving corruption or bribes, harassment, or theft as well as other allegations should be prepared to conduct interviews and document the investigation in a proper and thorough manner.

Among the issues that add to the complexity of an international investigation are of course issues dealing with foreign laws, culture, communication, personnel security as well as data security and even differences in time. All of the issues combine to make international investigations very complex and rather daunting.  For instance, who will handle the investigation? What privacy rights do employees have and what data privacy rights do they have.  What laws will govern the investigation? And do the rules of attorney-client privilege and work product apply? These questions will have to be answered  in order to set the stage for the investigation and to provide the framework needed for setting the ground rules of the investigation itself.

In most cases, courts will very closely scrutinize the employer’s internal investigation processes when deciding whether to find in favor of the employer or the employee. The employer will be held to a very high standard, and mistakes, slowness, inadequate documentation and other problems could make the difference between winning and losing the case. It may also decide whether a company faces criminal liability or criminal penalties.

The ultimate goal of an investigation is to enable the company’s decision-makers to resolve matters fairly and effectively. The immediate goal of an investigation is to obtain the facts. Therefore, to be effective, an investigation must be:

  1. Thorough and accurate.
  2. Fair and impartial.
  3. In compliance with the requirements of law and the company’s ethics program.
  4. Commenced and competed in a timely manner.The investigators must establish a good rapport with those individuals involved in the investigation (whether it be the individual making the report, an interviewee or other individual).
  5. If possible, the investigators should also:
  • Determine if there is any reason an interviewee thinks the investigator or the investigation cannot be fair or objective.
  • Explain the Company’s anti-retaliation policy and reassure the individual that the Company will not tolerate retaliation.
  • Remind the individual that he or she must report any suspicion they have of retaliation.
  • Establish WHO, WHAT, WHEN, WHERE, HOW, WHY, and any other data that might be relevant to the report.
  • Be flexible in the approach to the investigation, interview, meeting or other aspect to the investigation.
  • Follow fact trails to the end and ask follow up questions. For example, if the witness states that her supervisor makes inappropriate remarks, ask: who is the supervisor; what were the remarks; were they said in the presence of anyone, who; when were they said; where were you when the remarks were said; etc..

The investigative team involved in the investigation, if from the home office may face visa, medical and personnel safety issues that others don't face.  The team may also be denied access to sensitive data that they are normally given access to back at home or they may have a hard time accessing databases that would allow them to track property ownership and court filings.  These issues must also be taken into consideration when handling an international internal investigation.

To successfully handle or manage an international internal investigation as well as the international crisis itself requires a great deal of planning.  The more planning that is done the easier the investigation will be.

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