TYGlobe

I. Introduction

Due to the unique industrial characteristics of the film and television sector, labor dispute cases arising therefrom are not particularly prominent compared with those in other production and manufacturing industries. However, the internal personnel management of film and television companies also faces a number of unique challenges, as evidenced by the following two cases handled by the author.

Case 1: During the filming of a TV drama, Actress A of a film and television company reported to the company's human resources department that Actor B of the same crew repeatedly subjected her to verbal harassment at the filming site and during rest periods, including making sexually suggestive and extremely inappropriate remarks, which left A physically and mentally exhausted and deeply troubled. This constitutes a circumstance of workplace harassment.

Case 2: During his employment, C, an employee of a film and television company, seized on minor defects in the company's publicity and promotion of a certain film to extort a large sum of money from the company as compensation. He threatened that if his demands were not satisfied, he would make the aforesaid issues public, which seriously jeopardized the company's image and reputation. This constitutes an extortion case committed by an employee.

These two cases demonstrate that in the field of personnel management of film and television companies, the management incidents encountered are both complex and sensitive, and how to properly handle such incidents poses a challenge to HR personnel. Against this background, how to effectively employ the means of internal investigation to accurately ascertain the facts and properly resolve personnel disputes has become a critical approach to addressing such issues. Accordingly, this paper will conduct in-depth discussions on how to give full play to internal investigation as a key method for resolving personnel disputes in the personnel management process of film and television companies, and provide detailed guidance and suggestions in accordance with relevant laws and regulations.

II. Analysis on the Legal Basis of Internal Investigations

(I) Basis from the Perspective of the Labor Law of the People's Republic of China

The Labor Law, as the fundamental law governing labor relations, lays an important cornerstone for film and television companies to conduct internal investigations.

First, Article 4 of the *Labor Law of the People's Republic of China* explicitly stipulates that an employer shall establish and improve its rules and regulations in accordance with the law to ensure that laborers enjoy their labor rights and perform their labor obligations. This Article endows film and television companies with the duty and authority to formulate reasonable rules and regulations, which are designed to regulate the conduct of employees in the workplace. When a personnel dispute arises and an employee is suspected of violating the rules and regulations formulated by the company in accordance with relevant legal provisions, the company shall have the right to initiate internal investigation procedures pursuant to the aforesaid provision, so as to ensure the effective implementation of the rules and regulations, and safeguard the normal operation order of the company as well as the lawful rights and interests of employees. If a film and television company has not yet established rules and regulations for internal investigations, it shall put such systems in place first.

Second, Article 25 of the *Labor Law of the People's Republic of China* stipulates that where a laborer seriously violates labor discipline, the employing unit may terminate the labor contract. However, the determination of whether a laborer has committed a serious violation of labor discipline shall by no means be based on subjective assumptions, and must be supported by sufficient and conclusive evidence. This requires that when film and television companies face personnel disputes involving possible serious disciplinary violations by employees, for example, if the sexual harassment committed by the employee in the relevant case and the extortion committed by the employee in Case 2 meet the threshold of serious violation of labor discipline, they shall obtain relevant evidence through rigorous internal investigations. Otherwise, arbitrary termination of labor contracts will incur the risk of illegality.

(II) Support under the Framework of the Labor Contract Law of the People's Republic of China

*The Labor Contract Law of the People's Republic of China* further specifies and strengthens the rights and obligations of employing units in personnel management, and provides a more specific legal basis for internal investigations.

Article 4 of the *Labor Contract Law of the People's Republic of China* stipulates that an employer shall establish and improve labor rules and regulations in accordance with the law, and such rules and regulations shall not violate the provisions of laws and regulations. Meanwhile, when formulating, revising or deciding on rules and regulations or major matters directly involving the vital interests of workers, the employer shall conduct discussions with the workers' congress or all staff and workers, put forward plans and opinions, and determine the aforesaid matters through equal consultation with the trade union or representatives of staff and workers. This means that when carrying out internal investigations, film and television companies shall not only ensure that the rules and regulations on which the investigations are based are lawful and compliant, but also follow corresponding democratic procedures when it comes to major investigation matters closely related to the vital interests of employees, such as salary adjustment and post change. Only in this way can the legitimacy of the investigation basis and the acceptability of the investigation results be guaranteed.

(III) Constraints and Norms on Internal Investigations under the Civil Code of the People's Republic of China

The Civil Code of the People's Republic of China, as the fundamental law governing personal and property relationships among civil subjects, also plays an important regulatory role in the internal investigation activities of film and television companies.

Article 1010 of the Civil Code of the People's Republic of China stipulates that when an employee encounters workplace sexual harassment, State organs, enterprises, schools and other entities shall take reasonable measures such as prevention, complaint acceptance, investigation and disposition, to prevent and stop sexual harassment committed by taking advantage of functions and powers, subordinate relationships and the like. We note that the wording "shall" is used herein, which means that under such circumstances, launching an internal investigation is a mandatory provision, and it is an obligation that enterprises must fulfill.

Of course, Article 1032 of the *Civil Code of the People's Republic of China* explicitly stipulates that natural persons enjoy the right to privacy. No organization or individual may infringe upon the right to privacy of others by such means as prying, harassment, divulgence and public disclosure. This means that during the internal investigation of a film and television company, the investigation acts of the company shall be strictly limited within the scope of legality, and shall not arbitrarily infringe upon the right to privacy of its employees.

III. Specific Implementation Procedures for Internal Investigation and Document Formation

After clarifying the solid legal basis for internal investigations, how shall film and television companies specifically conduct internal investigations and form standardized document records? The implementation procedures thereof are elaborated in detail as follows.

(I) Specify the purpose and scope of the investigation

When a personnel dispute triggers the internal investigation mechanism, the primary task is to accurately and explicitly define the purpose of the investigation. Generally speaking, there are only two purposes for a company to launch an internal investigation: first, to thoroughly investigate the full facts and circumstances of workplace harassment incidents; second, where serious disciplinary violations are involved, to secure evidence and impose disciplinary sanctions on employees who commit such violations in accordance with the company's rules and regulations, so as to uphold sound work discipline.

(2) Formation of the Investigation Team

The establishment of a professional, neutral and competent investigation team is critical to the smooth conduct of internal investigations. The composition of the investigation team shall take multiple factors into account, and may generally include: professionals from the human resources department, who are familiar with the company's personnel policies and employee conditions; in-house legal personnel of the company (external lawyers are more preferable, as they are third parties that can enhance the objectivity of the investigation), who can provide professional legal opinions and ensure the legality of investigation procedures; and management personnel from other departments not involved in the disputed incident, who can view issues objectively from different perspectives. Such a diversified member composition can not only ensure a solid grasp of personnel policies as well as laws and regulations, but also guarantee adherence to an objective and neutral stance during the investigation process, thus laying a foundation for the impartiality of investigation findings.

(3) Formulation of an Investigation Plan

To ensure the smooth conduct of the investigation, a detailed and comprehensive investigation plan shall be formulated in accordance with the explicitly defined objectives and scope of the investigation, which shall cover investigation procedures, investigation schedule, evidence collection methods and other relevant contents.

(IV) Conduct Interviews

Interviews are a key link in the acquisition of first-hand information. When conducting an interview, the following key points shall be observed:

### Interview Preparation Prior to interviewing the subjects under investigation, the investigation team shall carefully prepare an interview outline. The outline shall be designed in light of the characteristics of different subjects under investigation (such as victims, harassers, eyewitnesses, etc.), so as to clarify the questions to be inquired and key focus areas of the interview. In the meantime, a quiet, comfortable and interference-free interview venue shall be selected to create a sound atmosphere for the interview and guarantee the interview effect.

Interview Procedure: During the interview, members of the investigation team shall maintain a neutral and objective attitude at all times, listen carefully to the statements of the persons under investigation, and shall not interrupt them rashly. Appropriate follow-up inquiries may be conducted on key issues, but the tone and manner of questioning shall be properly handled to avoid imposing unnecessary pressure on the persons under investigation. Upon completion of the interview, the interview records shall be sorted out in a timely manner. The records shall be accurate and detailed, covering information including the verbatim statements, facial expressions and tone of voice of the persons under investigation, so as to provide full and accurate materials for subsequent evidence analysis.

Upon conclusion of the interview, a Record of Interview shall be prepared and signed by all parties present.

(5) Collect and analyze evidence

Evidence includes documentary evidence (such as emails, chat records, etc.), physical evidence (such as articles related to harassment acts, etc.), and witness evidence (witness testimony obtained through face-to-face interviews), etc. For electronic evidence, special attention shall be paid to its preservation and extraction in accordance with relevant regulations to ensure its authenticity and integrity. In the meantime, the content of witness testimony shall be duly recorded, and the witness shall be required to sign for confirmation, so as to enhance the credibility of such witness testimony.

Upon completion of evidence collection, the investigation team shall conduct a comprehensive analysis of the collected evidence. This process requires the examination of evidence from different perspectives to determine the authenticity, relevance and sufficiency of such evidence.

(VI) Formulation of the Investigation Findings Report

Based on the results of comprehensive analysis, a complete and standardized investigation report shall be prepared, which shall cover the following contents: 1. Background and purposes of the investigation 2. Scope and methods of the investigation 3. Basic information of the investigated subjects 4. Evidence collection and analysis 5. Investigation findings: Explicitly indicate whether the conducts involved in the dispute (such as workplace harassment, employee extortion, etc.) exist. If such conducts exist, details including the nature and severity of the conducts shall be fully described. 6. Recommended handling solutions: Based on the investigation findings, put forward handling recommendations for relevant personnel in accordance with the Company's *Employee Handbook*, *Personnel Management System* and other relevant regulations, such as warning, suspension from post, termination of labor contract, etc. Meanwhile, recommendations for improving the Company's internal management may also be put forward. The investigation report shall be signed and confirmed by all relevant parties.

(VII) Document Archiving

All documents generated during the investigation, including interview records, evidence materials, investigation result reports and the like, shall be properly archived. The purpose of archiving is, on the one hand, to facilitate future reference, and on the other hand, to provide evidential support for possible follow-up legal issues that the company may encounter. This is an important measure to protect the legitimate rights and interests of the company and address potential legal risks. Document archiving is of critical importance. Many companies fail to attach importance to archiving after the completion of an investigation. When a dispute arises, they find that due to factors such as staff resignation, the relevant records of the investigation process and evidence concerned cannot be produced, or cannot be fully submitted to lawyers or judicial organs, which often leaves them suffering undue losses with no valid recourse.

Part IV: Key Points for Attention in Internal Investigations

In the process of conducting internal investigations by film and television companies, in addition to complying with the aforesaid specific procedures, special attention shall be paid to the following key points, so as to ensure the legality, impartiality and effectiveness of the investigations.

(I) Maintain Neutrality and Objectivity

Members of the investigation team shall maintain a neutral and objective attitude throughout the entire investigation process. Their judgment of facts shall not be affected by factors such as the position level of the subject under investigation and the closeness of the relationship between the subject and the investigators. They shall take facts as the basis and law as the criterion to ensure the impartiality and accuracy of the investigation results. For example, in the workplace harassment investigation of Case 1, the investigation team shall not show favoritism to Actor B on the ground that he is a well-known actor, nor shall it disregard the claims of Actress A simply because she is an ordinary employee. It shall determine whether there is an act of workplace harassment and the severity of such act on the basis of the collected evidence and relevant legal provisions.

(II) Protection of the Privacy of the Parties

When conducting internal investigations, the privacy information of the parties concerned, such as the personal feelings of victims in workplace harassment cases and the private life conditions of harassers, shall be protected. Except for necessary investigators and relevant decision-making personnel, no other person shall access such privacy information without authorization. In the meantime, the handling of such privacy information shall abide by the provisions on privacy protection under relevant laws and regulations, such as the provisions of Article 1032 and Article 1033 of the *Civil Code of the People's Republic of China*. For instance, when investigating a workplace harassment incident, even if information such as certain private living habits of the harasser needs to be obtained for the purpose of ascertaining the facts, the collection of such information shall be conducted within the legal and compliance scope, and such information shall not be arbitrarily disclosed or revealed to irrelevant personnel.

(III) Timely Handling

Once a company receives complaints and reports, it shall handle them without delay to ascertain the facts. Upon the issuance of the investigation findings, the company shall also promptly take disciplinary measures against relevant personnel in accordance with the findings. Any delay in handling will not only disrupt the normal operation of the company, but also disappoint the victims and damage the company's image among its employees. In the meantime, prompt handling can also serve a preventive function: it informs other employees of the company's resolute stance against such misconduct, thereby preventing the recurrence of similar violations. For example, after the investigation findings of the workplace harassment in Case 1 are released, if the company delays taking action against Actor Yi for his misconduct for a long time, it will not only cause Actress Jia to lose confidence in the company, but also lead other employees to believe that the company does not attach importance to workplace harassment, which may in turn give rise to the recurrence of similar acts within the company.

5. Conclusion

In view of the foregoing, it is of vital importance for film and television companies to make full use of internal investigation as a measure when addressing various personnel disputes in the process of personnel management. By thoroughly analyzing the legal basis of internal investigations, strictly complying with specific implementation procedures and paying attention to relevant key points, film and television companies can accurately ascertain the facts, properly handle personnel disputes, safeguard the normal operation order of the company and the lawful rights and interests of employees on the premise of legality, impartiality and effectiveness. Meanwhile, standardized internal investigation practices also help improve the management level and public image of the company, laying a solid foundation for film and television companies amid fierce market competition.