Author: Bonnie Levine
In an era of distributed and remote work, matrix reporting, and multinational account territories, workplace concerns increasingly have a cross-border component. Multijurisdictional dilemmas can overwhelm even the most experienced investigator. Various laws and local policies impose conflicting expectations about privilege, data handling, and due process; witnesses bring varying norms; and the employer’s own obligations may shift depending on where evidence, management, or reporting lines sit.
This article offers a practical, human-centered framework for navigating those investigations. It distills the key tensions that arise when legal systems, languages, and workplace cultures intersect, and outlines tools to manage them while preserving fairness, impartiality, and compliance.
1. What Makes an Investigation “Cross-Border”?
A matter can become cross-border in more ways than one might expect. Sometimes conduct, witnesses, and evidence span countries. Sometimes a single employee has connections in multiple countries. Sometimes a complaint arises in one jurisdiction but is overseen or decided by HR or counsel abroad. Even within a single legal entity, the involvement of multiple nationalities or data subject locations can trigger overlapping privacy, reporting, or labor-law obligations. Employers may also encounter cross-border elements within a jurisdiction—such as language barriers, cultural dynamics, or divergent expectations about confidentiality—that influence how participants perceive the process. An expat residing in one country while payrolled in another might have rights in both. An investigation led from U.S. headquarters into alleged misconduct at an overseas subsidiary may therefore implicate not just foreign law, but also power asymmetries and credibility challenges that require a broader lens.
2. Universal Values, Local Realities
Fundamental investigative principles—fairness, impartiality, nonretaliation, and respect—apply worldwide. But local laws and expectations affect how to achieve these fundamentals. At the same time, over-correcting for local sensitivities can erode consistency and credibility. If witnesses in one country receive written interview summaries while those elsewhere do not, or if only some subjects receive formal notice of allegations, investigators risk accusations of bias. Investigators are well served by aligning process where possible, adapting only when legally necessary, and documenting the rationale for the process decisions they made.
3. “At-Will” and its Hidden Assumptions
The U.S. “at-will” employment relationship contrasts with other countries, where employees have contractual rights and there is usually a general labor code governing the relationship (as well as consultative bodies or industrywide collective bargaining agreements). This shapes multinational investigative practice, particularly where U.S.-headquartered companies utilize a U.S.-centric investigation process globally, or vice versa. Outside the U.S., terminating employment typically requires (at a minimum) notice or payment. U.S.-based employers may assume that credible factual findings give organizational decisionmakers everything they need to take personnel action. But outside the United States, unilateral action—even after a substantiated finding—can constitute a breach of contract, or if the action is employment termination unfair dismissal. This difference affects not only outcomes but also process design and framing the findings. If a finding might warrant personnel action for a non-US employee, decisionmakers must consider whether disciplinary steps require prior notice, consultation, or opportunity to respond. To articulate usable findings, a cross-border investigator must translate between these frameworks, recognizing limitations on employer discretion and understanding the implications after factual findings are made.
4. Friction Points
Cross-border investigations frequently surface recurring legal and procedural tensions:
Data protection. In Europe and many other regions, employees are “data subjects” with rights to access, correct, or delete their personal data. Interview notes, emails, and even drafts of reports may therefore be subject to disclosure. While legitimate-interest and legal-obligation bases can justify retention, investigators should anticipate potential data subject access requests and write with that audience in mind.
Privilege. Attorney–client privilege varies dramatically across jurisdictions. In-house privilege is limited or nonexistent in much of Europe and Asia, and documents protected in the United States may be discoverable abroad. Even within a single investigation, privilege may attach in one country but not another. At minimum, investigators should set expectations clearly at the outset and mark privileged communications consistently.
Due process. In some jurisdictions, employees under investigation may expect written notice of allegations, an opportunity to respond, representation by a works-council member or union representative, or access to the final report. Some such expectations are based on norms rather than laws; some are based on laws that apply only at the disciplinary stage. Look out for Misjudging the timing of these rights can render an otherwise well-run investigation procedurally defective.
Anonymity and reporting. Many multinational employers utilize intake systems that allow for anonymous complaints—which may have country-specific guardrails based on (sometimes a misapprehension of!) local claw. Employers may need to adjust their whistleblower systems or communication templates to ensure that reports comply with national rules while still incentivizing speaking up, protecting reporters from retaliation, and ensuring that data tracked in the system is representative and accurate (or knowing the differences so they can be explained before drawing inaccurate conclusions from the aggregations).
Employer status. Particularly where dealing with a jurisdiction where the company lacks a local office, or where the local client base is tied to the local country manager, non-employees may be involved. These include clients or (sometimes misclassified) contractors. In global employment structures involving staffing providers or professional employer organizations (PEOs), more than one entity may be deemed the “employer.” When a PEO-assigned worker raises a complaint, both entities may share investigative obligations.
Post-acquisition integration. Many multinational employers grow by acquisition—a combination of local and company cultures can lead to feelings of disorientation and discomfort, and (despite some laws that protect workers from transaction-related terminations) professional insecurity. In some contexts, integration dynamics can lead to a spike in complaints—particularly when a transaction leads to employee access to a global whistleblower hotline for the first time.
5. Designing the Process: Intake to Report
Intake and Triage. Not every complaint warrants a full investigation. Before launching one, ask: If the allegations are true, what policy or law would they violate? This question can get even more complicated when looking at multiple jurisdictions. If the answer is unclear—or outside the company’s remit—the matter may be better handled as a coaching or HR issue. If unclear, an intake call with the individual who reported the conduct (or facilitated anonymous interaction through hotline platforms) can help clarify whether to investigate and the proper scope. Once an investigation is warranted, define its scope explicitly and ensure proportionality between the allegations and the process.
Interim Measures. Safety and retaliation risks often require immediate action, but measures should be reversible and narrowly tailored. Suspending an employee may trigger pay and documentation requirements, or may require notice or regulatory reporting. Always weigh the risks of action versus inaction and record the reasoning.
Investigator Selection. Selecting the right investigator can itself raise cross-border implications. Should the investigation be outsourced? Where should the investigator be from, knowing that this could send a signal as to which law the company is applying? In complex cases, particularly involving multiple languages, a dual-investigator model—pairing one local and one HQ professional—can balance these concerns.
Data Collection and Preservation. Review privacy policies before transferring data across borders. Certain jurisdictions restrict remote access to employee email or personal devices. Avoid coercive requests for personal data, and document lawful bases for collection.
Witness Interviews. Conduct interviews in the witness’s preferred language with interpreters where needed. Explain boundaries clearly: outline who will see the information and why. Avoid overreliance on demeanor; in multilingual contexts, differences in tone or fluency are poor indicators of credibility.
Language and Documentation. Record interview language, interpreter details, and any translation considerations in your notes and final report. Avoid using quotation marks for translated statements unless the exact wording is critical. Summarize neutrally and transparently.
Written report. While not all investigations involve a written report, documentation may serve a dual role in a cross-border context where ad hoc decisions may exist, and the process utilized may be less intuitive than in other contexts. Reports should begin with a clear scope and identify applicable policies or laws. Explain the methodology, evidentiary standard (typically “preponderance of evidence”), and credibility framework. State which sources were reviewed and which were unavailable. Keep analysis distinct from findings and use appendices for technical details like process logs where extensive.
Privilege and Disclosure. Decide early whether the report will be shared internally or externally. If external disclosure is foreseeable (for example, to regulators or data subjects)—and note that the attorney-client privilege may not apply predictably outside the U.S.—consider preparing two documents: a privileged memo and a standalone factual summary.
6. Communication
Cross-border investigations are communication exercises as much as legal ones. Subtle factors often determine whether witnesses cooperate and whether findings are trusted. Cultural factors play a role: both the local culture and the company’s culture. Investigators benefit from a sense of what will put witnesses at ease and what will register as improper.
- Formality vs. familiarity: In some settings, a structured and formal tone builds confidence; in others, it can chill candor.
- Hierarchy: Employees in high power-distance cultures (whether based on the locality or the company) may hesitate to criticize superiors; build rapport and reassurance accordingly.
- Language gaps: Even fluent non-native speakers can misinterpret idioms or tone. Avoid idiomatic phrasing, compound questions, and legal jargon.
- Trauma-informed interviewing: Especially in harassment or misconduct cases, avoid forcing emotional narratives. Offer breaks, explain each step, and reaffirm nonretaliation protections.
- Credibility: Assess credibility according to standard factors; some are more culture-dependent than others.
An investigator’s own cultural lens also matters. Overconfidence is a type of bias present whenever we rely on our own expertise, and it can obscure other biases—among them confirmation bias and “credibility bias” tied to communication style. Seeking a local second reader or conducting peer review can mitigate these effects.
7. Balancing Global Consistency with Local Law
Organizations often struggle with the tradeoff between harmonization and localization. Global consistency promotes fairness and credibility but may clash with mandatory local rules. Tailoring every process locally can undermine global integrity. The practical solution can be layered governance: define global minimum standards (confidentiality, impartiality, promptness, anti-retaliation) while allowing local supplements as required by law. Document deviations and ensure that all investigators understand the rationale behind them.
8. After the Investigation: Accountability and Follow-Through
An investigation’s value depends not only on factual accuracy but also on what the organization does afterward:
Close the Loop. Transparency builds trust but can also fan flames. Provide appropriate feedback to reporters, subjects, and key witnesses without violating privacy laws.
Identify Potential Retaliation. Retaliation may manifest differently across jurisdictions—through subtle work reassignment, denial of bonuses, or social exclusion. Consider risks and take mitigation measures.
Systemic Learning. Beyond individual cases, investigations reveal patterns: unclear policies, poor supervisory conduct, or systemic bias. Summarize these insights and feed them into policy reviews and training initiatives.
Governance and Documentation. Maintain a central repository of investigation templates, reports, and precedents (appropriately redacted) to ensure future consistency. Periodic audits can verify compliance with privacy and privilege obligations.
9. Investigator Mindset and Ethics
Ultimately, cross-border investigations are exercises in judgment, not mechanical compliance. The best investigations balance analytical rigor with humility about what they do not know—law, language, or culture. Identifying those limits, rather than hiding them, strengthens credibility. Reports can note, for example, that interviews were conducted in a non-native language or that local counsel was consulted on due process requirements (make sure the investigator knows where the “requirement” comes from, but whether to include it will depend on the investigational context). Transparency about the investigation’s design is itself a hallmark of fairness. The human element also matters: witnesses participate when they feel respected, and employees accept outcomes when they believe the process was fair, even if not perfect. Intentional, proportionate, and empathetic practice therefore serves not just legal defensibility but also organizational health.
Cross-border workplace investigations expose the fault lines between global values and local law. They require the investigator to operate amid ambiguity—navigating multiple legal frameworks, cultural contexts, and organizational interests at once. Success lies in grounding each stage of the process in fairness, consistency, and humanity. By integrating deliberate planning, transparent communication, and cultural awareness, multinational employers can transform investigations from reactive crisis management into a source of learning and trust. In the end, the goal is not to eliminate legal risk—an impossible task—but to manage impartiality with integrity globally.
