Interface between employment law and criminal law – “The times they are a-changin'”

In recent years, employment law matters have increasingly contained elements of criminal law. Traditionally, these two fields of law have not appeared in the same matters, but “the times they are a-changin'” and at a rapid pace at that. We have been involved in a number of recent cases relating to the violation or misappropriation of trade secrets, industrial espionage engaged in by employees, occupational health and safety offences and workplace discrimination. And this is just the tip of the iceberg: internal investigation proceedings are not made public, but this doesn’t mean that they don’t exist.

Involving a company’s senior management in something that has even the slightest hint of “criminal law”, “sanctions”, “fines”, or “imprisonment” is not the nicest of jobs. Still, management should pay close attention to advisors when signs of criminal activity in the company are detected. Here are some practical tips based on our extensive experience in dealing with the interface between employment and criminal law:

  • Pick the most experienced advisor with a solid track record and not the usual “corporate guy”.
  • Prepare for the worst and expect the unexpected; an investigation may reveal serious misconduct which may force you to make drastic HR-related decisions.
  • Criminal proceedings involving a pre-trial investigation are a long journey that take up a lot of management’s time. The make-up of the management team may change during the entire process, so make sure that the files are kept in a safe place and preserved if the team undergoes significant changes.
  • Even if the proceedings are not in the public eye until a certain point in time, prepare and plan the media strategy beforehand with recognized experts and do not forget internal communication. Note that lawyers are probably not the best choice for planning and implementing the company’s media strategy and crisis communication, so the communication strategy should be prepared in close co-operation with legal and communication professionals.