HR Management & Compliance

Can Employees ‘Plead the Fifth’? — And Other Investigation Challenges


Every HR manager has to do investigations, and it’s hard to get it right–interview too few witnesses, and you’re negligent; interview too many, and you’re invading privacy and violating confidentiality.  


Who’s waiting to pick apart your investigation? Your employee’s attorney will question the approach you took at every step along the way, says attorney Walter Stella.


Stella is a partner in the San Francisco-based law firm of Shook, Hardy & Bacon, LLP. His remarks came during a SHRM Employment Law and Legislative Conference in Washington, DC.


Legal Issues with Investigations


Stella pointed out several common questions employers have about investigations:


Do employees have a right to have an attorney present? No, says Stella, assuming you are a private employer. You are not the cops. But what if you have gone to the police, say, over an issue of a theft? Still no, because you are conducting your own investigation to see if there was a violation of your policy.


Do employees have a right to plead the Fifth Amendment?  Again, no; this is not a criminal case.


Do employees have the right to have the charge in writing? You do not have an obligation to put it in writing. However, you might tell the employee, “These are the four things we are looking at.”




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What if the employee asks, “May I leave?” You cannot require employees to stay and participate in the investigation. However, you can have a policy that requires employees to participate in investigations of misconduct and discipline them for that failure.


What if the employee asks, “May I have 4 days to confer with my lawyer?” Stella recommends that you say, “That’s fine, but I need your answers to these questions now. That doesn’t mean that I won’t consider additional responses at a later date.”


Can I discipline employees who won’t cooperate?  Yes, but be careful that you have a policy that requires cooperation. You want to avoid charges of retaliation.


Can I discipline employees who fail to maintain confidentiality? Yes, as long as you are consistent. Again, it is best to put this requirement in your policies and to give people notice.


When You Are ‘On Notice’


People will often approach HR with a phrase like this:
          I don’t want to have an investigation.
          I don’t want any action taken.
          I want this “off the record.”


In any of these cases, you can’t agree to that demand–once you have notice, you have to investigate, says Stella.


Interim Preventive Measures


Interim measures have their own perils. For example, in one case, an administrator complained that the executive VP was harassing her. The company wanted to separate the two during the investigation.


The VP stayed in his fine corner office, and the administrator was moved as far from him as possible, to an isolated work space with no views. Her attorneys immediately cried “retaliation.”




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Investigate Promptly


EEOC pretty much defines “prompt” as “immediately,” says Stella. However, routine exigencies make that difficult. You and the people you need to interview are busy, some are sick, and some are out of town. That’s understandable, but you need to show that you made your best effort to conduct a prompt investigation.


Be Careful with Questions


In doing your interviewing, always start with open-ended questions. Try to get responses unsolicited. If that doesn’t work, you may have to get in to specifics.


But there’s also a problem with narrow, specific questions, says Stella. You  ask, “Did you see X do y to Z?” The person being interviewed says “No.” Case closed? The person may be thinking, “I didn’t see X do y, but I did see X do a, b, and c.”


In the next issue of the Advisor:  Things you must do after you investigate, and an introduction to a product specially designed to help the small HR department that has to do investigations and dozens of other tasks.

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