Any investigation is likely to involve a company’s employees – either under investigation themselves, as witnesses, or simply because their communications need to be reviewed. This involvement gives rise to a number of considerations for companies, particularly when it comes to legal representation for employees, where disciplinary action may be appropriate, as well as cross-border issues. Key considerations include:

• Assessing whether employees need separate legal counsel in any investigation or litigation
• Drafting constitutional documents and internal procedures to clarify which employees can qualify for indemnification or legal fee coverage when facing litigation, and under what circumstances
• Being aware of differences between jurisdictions, such as rules on indemnifying employees in bank regulatory proceeding

• Considering whether disciplinary action against individual employees is justified, and what particular risks might arise
• Handling employee concerns carefully, taking steps to protect whistleblowers and also considering the possible existence of whistleblowers when self-reporting of violations
• Documenting the grounds and justifications for employee terminations, and be prepared to defend those reasons in legal proceedings

• Taking into account international differences in employee rights when it comes to employment law, legal privilege, data privacy and whistleblower rules