BRAZIL Law and Practice Contributed by: Patricia Barboza, Alinne Gordilho and Amanda Costa, CGM Advogados
However, it is strongly recommended that interview - ers introduce themselves clearly, explain their role in the investigation – emphasising that they represent the employer and not any individual – and provide the following information to the interviewee before the interview begins: • the objective of the investigation, including a sum - mary of the reported conduct without revealing the reporter’s identity; • the reason the individual is being invited to partici - pate in the interview (eg, as the reporter, a potential witness or the respondent); • the confidentiality of the process and the expecta - tion that the interviewee will maintain confidentiality if they agree to participate; • assurance of non-retaliation for participating in the interview or co-operating with the investigation; and • information that participation in the interview is voluntary, and a request that the individual confirm whether they are willing to participate. Additionally, interviewers should explain that, once the interviewee agrees to participate, any breach of confi - dentiality could result in disciplinary measures. At the conclusion of the interview, it is advisable to remind the interviewee of their ongoing duty of confidentiality. 3.8 Stopping the Interview Since participation in the interviews is voluntary, the interviewer must stop the interview if requested by the interviewee. The interviewer should remain available to resume the interview at the interviewee’s request. The interviewer must emphasise that the obligation of confidentiality continues to apply even after the inter - view is concluded. 3.9 Minutes There are no specific rules regarding taking minutes during interviews, but it is permitted and recommend - ed for interviewers to take notes of the information provided by the interviewees. These notes or minutes should be treated as internal records for preparing the final investigation report. Interviewees are not entitled to review or sign the
minutes unless required by the company’s internal regulations. In sensitive cases, it is advisable that only lawyers conduct the interviews and take notes to ensure the protection of attorney-client privilege over the content of the discussion and the notes or minutes. 3.10 Recording If the interview is recorded, the recording can be tran - scribed and the material should be accessed only by those responsible for conducting the interviews. Its use should be limited to the preparation of the final investigation report. If internal company policy pro - hibits the recording of interviews, it is recommend - ed to inform the interviewee of this restriction at the beginning of the conversation. The company may also request that the interviewee sign a statement confirm - ing that the discussion is not being recorded. How - ever, such a requirement is not legally enforceable, as Brazilian law allows individuals to record conversa - tions in which they participate without notifying the other party. 3.11 Other Fact-Finding In addition to interviews, HR internal investigations often include the review of corporate emails, comput - er files, instant messaging tools and mobile phones. Since these are considered the employer’s property, such reviews are generally permitted. However, it is strongly recommended that employees are informed, through their employment agreements and company policies, that corporate equipment may be monitored by the employer. Evidence used to reach a conclusion in the investiga - tion should be preserved by the company. It is advis - able to document the collection process and maintain a clear chain of custody, particularly in cases where the conduct could lead to criminal prosecution, such as fraud. The investigation report and evidence should be retained by the company or external attorneys for at least five years from the conclusion of the investi - gation. The collection of evidence from personal devices or services – such as personal mobile phones, laptops or personal email or instant messaging accounts – is a
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