Surviving Workplace Investigations

Surviving Workplace Investigations
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In most nonworkplace situations, you know when you might have a criminal law problem. Rob a store or get pulled over while driving drunk, and you know you’ll be in trouble with the law. However, in white-collar investigations—ones that often start in the workplace—it can be difficult to tell when you have violated some obscure regulation. This is particularly true in heavily regulated businesses like government/military contracting, pharmaceuticals, shipping, and import-export companies. It is also true for multinational corporations with significant dealings with second- or third-world countries. So, any time you are involved in a workplace investigation, you should be concerned about potential problems with law enforcement.

The difficulty with workplace investigations is that they are conducted without regard to an employee’s constitutional rights. For instance, if you work for a pharmaceutical company and get interviewed by compliance, you may have no idea what the investigation involves, and you may not realize that what you say could be turned over later to federal law enforcement. The company could use that interview against you without regard to your right to speak to law enforcement or your right to contact a lawyer.

In short, workplace investigations are nothing but a tangled mess of trouble for employees. It can sometimes be difficult for a lawyer to decide what rights apply and when. So how are you, the employee, supposed to make sense of it? I know I am a bit of a broken record on this issue, but it is almost always worth your time to sit down and talk to an attorney any time you are involved in an investigation, even if you are not the one being investigated.

Even if you meet with an attorney, you should learn the basics so that you know the right questions to ask. To that end, in this chapter, I provide an overview of your rights in a workplace investigation.

The first issue for you to consider is whether your employer provides a process for an investigation and your rights in it. For instance, if you are a member of a union, your union contract may give you the right to have a representative at some meetings with management. Similarly, your company may have published guidelines that it is supposed to use when conducting an investigation. These guidelines may, for instance, indicate that you have the right to bring a representative. Understand that there are no absolute rights in many instances. Strangely, there is nothing necessarily illegal about a private company choosing not to follow its own guidelines. Still, if you find yourself involved in an investigation, you know what the company’s internal rules are. You can often find these in the employee handbook and on the internal company website.

The next important issue depends on whether you are a government employee or a private employee. A government employee may have some due process rights provided by state law. For instance, public schoolteachers, particularly if they belong to a union with bargaining power, may have specific, enforceable rights to some process. By process, I mean a certain type of hearing and the right to bring representation.

Importantly, government officials have the right not to be fired for refusing to answer questions that could be self-incriminating. There are a couple of important points here. First, everyone has a right against self-incrimination when questioned by law enforcement when in custody. But, in the private sector, this right does not provide job protection. For instance, if a police officer stops you and says, “You can’t go anywhere. Did you just take that Snickers bar without paying for it?” you have a Fifth Amendment right to refuse to answer. Let’s assume that the officer asks you this question while standing in your conference room at work beside your boss. After the officer asks the question, you say, “I’m taking the Fifth.” Then your boss says, “Hey, you answer the question, or you’re fired.” Is that legal? Yes. You have an absolute right to refuse to answer the officer’s question, but that right does not include job protection.

Things are different if you work for the government, and sometimes even if you work for a government contractor. In the case Garrity v. New Jersey, 385 U.S. 493 (1967), the US Supreme Court held that it was unconstitutional to make police officers choose between answering law enforcement questions about the alleged fixing of traffic tickets and losing their job. The court reasoned that this choice resulted in coerced testimony, which violates the Constitution. The government used its power as an employer to force these officers to give potentially incriminating testimony. Of course, the same pressures apply to a private employee making the same choice. But in the private sector, the government is not on one side of the equation and thus, at least as far as the courts are concerned, cannot be said to coerce your testimony.

The rights are referred to as Garrity rights, and government employers are required to inform government employees subject to investigation of the right to both keep their job and refuse to answer incriminating questions.

A Garrity rights statement for a federal employee might sound like this:

You have the right to remain silent if your answers may tend to incriminate you. Anything you say or do may be used as evidence in both an administrative proceeding and any future criminal proceedings involving you. If you refuse to answer the questions posed to you on the grounds that the answers may tend to incriminate you, you cannot be discharged solely for remaining silent. However, your silence can be considered in an administrative proceeding for its evidentiary value that is warranted by the facts surrounding your case. This interview is strictly voluntary, and you may leave at any time.

However, if you are not subject to criminal prosecution because the government is giving you immunity, it can make you choose between answering questions and keeping your job. The US Court of Claims resolved this issue in a case called Kalkines v. United States, 473 F.2d 1391. Kalkines held that an employee could be disciplined or fired for refusing to answer questions—even incriminating ones—if the government has agreed not to prosecute. This is true even if the answers could get your fired. The reasoning here is that there is no government coercion to subject yourself to criminal (as opposed to employment) penalties because the government has taken criminal prosecution off the table. You will know if this is the case because the government is required to give you a Kalkines warning, which is essentially that “you can be fired if you don’t answer.”

The warning that your employer should read to you—and will typically ask you to sign—will go something like this if you are a government employee:

I want to advise you, [Employee], that you have all the rights and privileges guaranteed by the laws of the state of [your state] and the Constitution of this state and of the United States, including the right to be represented by counsel at this inquiry and the right to remain silent, although you may be subject to disciplinary action by the [name of government employer] for the failure to answer material and relevant questions relating to the performance of your duties as an employee of the [United States/state/locality].

I further advise you that the answers you may give to the questions propounded to you at this proceeding, or any information or evidence that is gained by reason of your answers, may not be used against you in a criminal proceeding except that you may be subject to criminal prosecution for any false answer that you may give under any applicable law, including [any law applicable to false statements].

Let’s go over two important points here. First, under Kalkines, you have the right to counsel, and you can still be prosecuted if you lie. This is why it is important to get an attorney immediately. He or she can be another pair of ears in the room working on your team. If you talk without representation, what happens when the investigator later says he or she believes that you were lying? All of a sudden, you are looking at possible criminal prosecution.

Garrity/Kalkines situations often come up with investigations by the Office of the Inspector General, a government body with various branches given the authority to investigate wrongdoing within the government. These officers do not have the authority to conduct criminal prosecutions, but they can refer cases to federal prosecutors. They can also “debar” individuals and companies from selling services to the federal government. This is very serious and can result essentially in an economic death sentence for a company, and potentially for an individual whose entire career has been in selling products to the government.

Here’s a weird curveball for you: the police do not have to give you these warnings. If FBI agents show up at your workplace, they can bring you into a room and, assuming that you are not “in custody,” can ask you anything they want, even if it is incriminating—and in a complicated workplace investigation or white-collar investigation, it may not be immediately clear whether you are in trouble.

What about an investigation that is not criminal—what rights do you have then? Not many. Let’s say, for instance, that you work for a car company and report to human resources that your boss is a sexually harassing creep. (Your words, not mine.) Two days later, you get a call to come down to HR. When you walk into the room, you see Pete, the vice president of HR, sitting there with his assistant, pen in hand. Pete says they are conducting an “investigation” into your “complaints.” This would be great, except that Pete and your creepy boss are buds, often golfing together on weekends. There is just no way this is going to be a real investigation. This is going to be a whitewash, no doubt.

What are your rights here? Can you refuse to participate? Can you demand that you be allowed to bring a lawyer? Unless you have a union contract (and how many people have one these days?), the answer to both questions is probably no. This is not a criminal investigation. Your employer is a private organization, so no constitutional rights are at issue. This means that you have no right to keep your job if you refuse to participate in the investigation. In fact, it would probably be legal to fire you for refusing to participate, even though you were the one harassed. A number of courts have held that refusing to participate in an investigation is not an activity protected under antidiscrimination law. Eventually, you’ve got to play ball, or you risk losing your job.

However, you do have some legal protections if you raise your allegations though a lawyer. (Of course, showing up with a hired gun may have some long-term implications for your job. That’s a different conversation.) Let’s try it out in the example above. Instead of going straight to HR, you first hire a lawyer. She tells you that you likely are protected under federal law prohibiting sexual harassment because your company has more than fifteen employees. The lawyer recommends that she write a letter to HR raising the issue through the company’s process for handling these complaints, and that she help you file a complaint with HR and file a charge with the EEOC. Sounds good. You hire yourself a lawyer. The lawyer sends the letter to HR, noting that she is representing you and that, the day before the date of the letter, you filed a charge of sex discrimination with the EEOC.

Now you’ve got a little (but, unfortunately, only a little) something to work with. Cue the music—you’re now a “represented party.” This does not mean that you can refuse to speak to your HR department. But it does complicate things if your company wants to bring in its lawyer to talk to you. Under the rules of professional responsibility, a lawyer cannot talk to someone represented by an attorney on the other side of a dispute. He or she can speak only to the other attorney.

So, let’s say in the example above, you show up to the meeting, and HR Pete is sitting with the company’s lawyer. In that instance, it very likely violates the lawyer’s professional obligations to speak to you if he or she knows that you have an attorney. In that case, you could rightfully throw a wrench in the works and say, “I’m happy to help with the investigation, but not while your lawyer is here. If he’s going to be here, I want, and am entitled to, my lawyer.” Now watch Pete’s smirk vanish.

In truth, if you were to bring your complaint in the first instance through a lawyer, this all would be worked out beforehand. Instead of getting called to a meeting with no advance notice, the company’s lawyer would talk to your lawyer about setting up a meeting and who could—and could not—attend.

But lawyer or no lawyer, you cannot refuse to participate in the investigation if your employer is not the government. And that often is not a bad thing. You should be prepared for it. If you are prepared, it is an opportunity to give your side of the story.

Word here for those who are accused of wrongdoing in the office that is not of a criminal nature. Let’s say that you are the one accused of sexual harassment. Brenda from marketing sent a letter to HR saying you grabbed her derriere at the office holiday party. This is categorically untrue. Yes, you were at the party, and you talked to Brenda for a bit. But you spent most of the time watching the game in the hotel lobby. You’re fairly certain it was Ted from accounting with the wandering hands. How people often mistake the two of you, given your rugged good looks contrasted with his weak chin, you’ll never know. But it happens often.

The company holds an investigation. It even hires an outside law firm to do the interviews. You have nothing to hide, so you freely go and tell the truth. Two weeks later—after fifteen years of solid service—the company fires you without warning. Though you are never able to get an official answer from the company, you hear though back channels that the powers that be believed Ted and not you.

This is outrageous. You’re now unemployed with one kid in college and another on the way. Don’t you have rights? This was demonstrably the wrong outcome. Sadly, there is very likely nothing to be done here. This is not a criminal investigation, and you are not a public employee, so you don’t have the right to due process or to an appeal. The company got it wrong. That’s sad, but it’s not illegal.

That’s not to say there is no circumstance under which this would be unlawful. Let’s return to the example above. You are African American and Brenda is Caucasian, and so is Ted. The same events occurred. The company fires you. The next day, as you are trying to figure out what to do, the phone rings. It’s the secretary for the vice president of HR. He’s speaking in a hushed voice. “Look,” he says, “I don’t have much time. But I couldn’t sleep unless I did something. Yesterday I overheard the attorney tell the CEO that he talked to three people, and all of them said you didn’t do it. And then he said to the attorney, ‘Look, it is common knowledge that a black man will take his shot at a white woman if given half an opportunity.’ The attorney literally sprinted to the door to close it. I don’t think they know that I heard. I still can’t believe he said it. I mean, he’s black, too. Anyway, I thought you should know.”

Now, you’ve got something. This wasn’t someone making the wrong call in an investigation, which is not illegal. This was flagrant discrimination based on race and sex. You’d better call your lawyer.

I don’t mean to blow this out of proportion or to suggest that all HR investigations are a threat. Many are not. Sometimes HR (or the company’s law firm) is really making a good faith effort to figure out what happened and to stop wrongdoing. You need not go in with guns blazing in every situation. But sometimes it’s hard to know the difference. Regardless, at the end of the day, it is important to keep in mind that HR and the company’s attorneys are there to protect the company, not you.

This is a lot, I know. So, here’s my quick chart on how to handle 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 aGarrity 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 aKalkines 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 orKalkines.

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.