SOUTH KOREA Law and Practice Contributed by: Sang Wook Cho, Soojung Lee, Seung Hyun Lee, Tae Eun Lee and Christopher Mandel, Yulchon LLC
As for the respondent, it is more customary not to disclose that the investigation has been initiated until the interview with the respondent is expected to take place. The primary reason for such an approach is due to the possibility that the respondent may interfere in the investigation, for example, by reaching out to the reporter or third-party witnesses. This is often a very contested area, where the employer needs to protect the reporter while providing the respondent with a suf - ficient chance to offer a defence. A typical approach is to interview the respondent last and provide a fair chance to defend their case with sufficient detail, while also issuing a clear warning that the respondent must There are generally no requirements to notify gov - ernmental authorities of the initiation of an HR inter - nal investigation, and it is uncommon for employers to voluntarily notify them of its opening. However, employers subject to specialised regulations, such as financial institutions, may have particular reporting obligations and practices. in no way retaliate against the reporter. 2.2 Communication to Authorities Although voluntary reporting to the authorities is rare, one exception is when there is a complaint of work - place or sexual harassment, and the reporter files a petition with the labour authorities before the com - pany completes its investigation. In that instance, it can be prudent for the company to notify the labour authorities that it is investigating, before being for - mally instructed to do so; carry out the investigation swiftly; and then report the results to the authorities. This is to demonstrate that the company is complying with its legal obligation to promptly investigate harass - ment complaints and take appropriate action. 2.3 Confidentiality Agreements and NDAs In cases of workplace harassment or sexual harass - ment, employers are obligated to keep all informa - tion related to the investigation confidential. To satisfy this obligation, it is prudent to obtain NDAs from all individuals who provide evidence in the investigation. Typically, the employer will receive an NDA prior to beginning each interview. If the individual refuses to sign it, or if the process of obtaining an NDA is fore - gone for any reason, the employer should instead
instruct the individual that they are obliged to keep the matter confidential, and document that instruction. If any individual involved in the investigation violates their confidentiality obligations, the employer may take disciplinary action according to its rules and regula - tions. If such a violation makes the employer liable for any compensation, the employer may, in turn, seek to hold the individual liable; however, in practice, proving causation may be difficult. 2.4 Preliminary Investigation and Scope- Setting It is possible to conduct a preliminary investigation to determine whether a more complete HR internal investigation is necessary. In some cases, a limited form of preliminary investigation may even be advisa - ble. In particular, in cases of workplace harassment or sexual harassment, if the alleged victim does not want a full-scale investigation, the employer might conduct more limited fact-finding with a narrow scope in order to learn what it can while avoiding further harm to the alleged victim and then the employer could determine whether more is needed. An employer may also carry out a preliminary investi - gation before deciding whether to proceed with a full- scale investigation if a report is made anonymously or the employer receives information about alleged employee misconduct that is not specific enough to warrant a full-scale investigation. In these cases, the employer may conduct a limited fact-finding inquiry within a reasonable scope and decide whether to pro - ceed further.
3. Interviews and Fact-Finding 3.1 Interviewees
Typically, a reporter and a respondent are almost always considered necessary interviewees in an investigation. Witnesses are usually identified from the complaint itself (or the initial information prompting the investi - gation) and the reporter’s interview. Typically, anyone who was present at key events described in the com - plaint, or who is likely to have material information
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