SOUTH KOREA Law and Practice Contributed by: Sang Wook Cho, Soojung Lee, Seung Hyun Lee, Tae Eun Lee and Christopher Mandel, Yulchon LLC
Whether interviewees have a right to be accompanied by legal counsel is a frequently discussed topic and there are precedents supporting both positions. How - ever, the more widely accepted position is that there is no right for interviewees to be accompanied by a lawyer in an HR internal investigation. In practice, it is not uncommon for an interviewee to request to be accompanied by a lawyer, and employ - ers sometimes accommodate such requests. If such a request is denied, the employee may refuse to be interviewed. There are pros and cons to accommodating such requests. The primary downside is the potential for delay and obstruction during the interview, due to the intervention of the interviewee’s attorney. A potential upside is that, if a dispute arises later, the employer can better show that it has been procedurally fair. There may also be certain instances where having the interviewee’s attorney present may facilitate discus - sion of very sensitive topics that would otherwise be difficult to question the interviewee about, because the attorney may reassure the interviewee that it is safe to discuss them, albeit this is very situation- dependent. 3.7 Information There is no legal requirement for an interviewer to pro - vide information at the outset or end of the interview. Typically, interviewers may briefly explain the purpose of the interview, confirm that the person is being inter - viewed voluntarily, and request that the person sign an NDA obligating them to keep information about the investigation strictly confidential. When interviewing the reporter in a harassment-relat - ed investigation, it is also common to convey that the company will ensure that there is no retaliation of any kind in relation to filing a claim. When interviewing an alleged harasser, interviewers also often convey that, regardless of the investigation outcome, they must take care not to take any action that can be perceived as retaliatory. 3.8 Stopping the Interview If an interviewee requests to stop an interview, it is generally prudent to stop. Coercive behaviour towards
a reluctant interviewee could result in legal claims (eg, harassment), and could damage the credibility of any interview statements. Should the interviewee request to stop the interview without a clear, justifiable basis, the interviewer could urge the interviewee to co-operate without coercing them to stay. It is common to take a break during the interview if it lasts more than two hours, even if the interviewee says they can continue. 3.9 Minutes There is no legal requirement to prepare minutes of an interview, or any specific form of notes, or to involve any external party or separate department in prepar - ing minutes. However, it is practically necessary to prepare minutes, notes, or other written documenta - tion of what was said in an interview. One reason good, detailed documentation is practi - cally required is to support any subsequent discipli - nary action by the employer. If an employee brings a legal challenge to overturn any disciplinary action, the employer has the burden to prove that it had just cause for the discipline imposed. In practice, employ - ers are held to a very high standard of proof, so clear, detailed written evidence is important. It is debatable whether employees can review the minutes of their interview. There is an argument that applicable law provides such a right. In practice, how - ever, employers often allow employees to review their interview notes on-site to confirm accuracy. Interview - ees are also typically asked to sign an acknowledge - ment confirming they have read and verified the notes. An employee is not legally required to sign such an acknowledgement, but is often asked to do so to pre - vent later disputes and strengthen the value of the
notes as evidence. 3.10 Recording
It is a crime under Korea’s anti-eavesdropping law to record a conversation to which one is not a party. But an interviewer can record the interview without violat - ing that law, even without the interviewee’s consent, as a party to the discussion. However, secret record -
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