Your Rights In Workplace Investigation ChartSurviving Workplace Investigations
|What Happens||The Protections You Have||What to Do|
|FBI agents show up in your office and “just want to talk.”||You have the right against self-incrimination.You have no workplace protection.||Don’t talk no matter what, even if they tell you that it is in your best interest. This is almost always a lie. Get a lawyer or say that you want to talk to the company’s lawyer. But better to get fired than risk criminal prosecution. In truth, your risk of getting fired is low. Most companies would probably prefer that you talk to a lawyer before deciding whether to cooperate.|
|OIG investigators show up and say they are conducting an investigation. They read a Garrity statement and ask you to sign it.||You have the right against self-incrimination.You have Garrity job protection even if you refuse to answer.||Don’t talk, ever, unless they later offer immunity. Regardless, talk to a lawyer as soon as you can.|
|OIG investigators show up and say they are conducting an investigation. They read a Kalkines statement and ask you to sign it.||You have the right to counsel.You will not be criminally liable (unless you lie).You have no workplace protection if you refuse to answer.||Tell them that you want to talk to a lawyer. Go talk to a lawyer. Explore whether you face any possible criminal liability. If you do, it’s probably best not to talk: it’s better to lose your job than go to jail. If, after consultation with your lawyer, you decide that you face no criminal liability, agree to talk, but only with your lawyer present.|
|HR representatives show up and tell you that they are investigating something and need to talk to you. You do not work for the government.||You have virtually no protections.This is not law enforcement, so you have no Fifth Amendment protection.You don’t work for the government, so you have no rights under Garrity or Kalkines.
If it’s just HR with no lawyer, the company is 99% of the time well within its rights to talk to you; in fact, the company can lawfully fire you for refusing to talk.
|Ask for some time. Most companies will not walk you out of the building immediately for refusing to talk. They’ll give you at least a day.Go talk to a lawyer see what risks might exist in talking and whether you have any rights (e.g., under contract or state law) to have legal representation. In some rare instances, it may be worth it to risk getting fired instead of talking. For instance, if telling the truth means admitting to a crime, don’t talk. It’s better to get fired. If you admit criminal liability to a private citizen, nothing would prevent that person from telling law enforcement, and there would be nothing illegal if law enforcement used that information to arrest you.If it’s not that dire—for instance, if the investigation is based on a complaint that you raised—agree to talk. If you have time, talk to a lawyer about any traps that may lie ahead. For instance, it is possible that an HR rep in such an “investigation” might be trying to establish—without telling you—that you were in danger of getting fired well before you raised a complaint. HR would do this to prepare a defense for the company—using your words—that any disciplinary action taken against you was unrelated to your complaint, which may be illegal retaliation. If you game this out with a lawyer beforehand, you might be able to avoid these traps.
Ask whether you can bring your lawyer or a friend. Ideally, you will have someone in the room on your side who can back up your version of events if it turns into a he-said/she-said situation.
If the company’s lawyer is in the meeting and you have your own lawyer who is not with you, raise this fact and ask that you be allowed to bring your counsel. (As I mentioned above, in most instances, this would be worked out beforehand.)
When you go to the meeting, whether with someone or alone, keep your wits about you. Make sure that you understand everything being asked of you. Though you don’t want to hide the ball, particularly if you want the company to know about wrongdoing, generally, the less you say, the better. You can always follow up in writing later if you miss something.
Don’t let HR put words in your mouth. For instance, if an HR person says, “Earlier you said that you did not think your boss meant to do any harm” and that’s not exactly what you said, then say so. “No, I said he did not do any physical harm to me. I do think he meant to insult me,” or whatever the real story is.
When you get out of the meeting, write down everything you can remember, in question and answer style. While it is not the same as having someone in the room on your side, it can be evidence later of your version of events. Plus, you may forget important details as you get further away from the event. Your detailed notes that you took while events were fresh in your mind may prove helpful later.