Last year, CareerBuilder found that 31 percent of employees don’t feel their workplace is well protected from a physical threat and 31 percent don’t feel their workplace is well protected from a digital hacking threat. Common sense dictates, and my experience representing corporate officials and employees confirms, that when people spend eight to 10 hours a day in the workplace, the issue of criminal behavior will inevitably intersect with daily life.
How should you react when an employee reports that he is under investigation or has been accused of a crime involving his use of workplace e-mail or telephone? How do you protect his rights while shielding your company from legal scrutiny? Should you talk through the accusation in detail with your employee and try to figure out what happened? The answers depend on the circumstances, but here are some tips to help you decide which road to take once your employee reports his legal issues to you.
What to do when an employee is formally charged with wrongdoing
In accordance with company policy or of his own volition, an employee may report to you that someone outside the workplace has formally accused him of a crime that intersects with his work. Let’s assume the crime involves an e-mail sent to a third party from the employee’s workplace e-mail address. In that context, “formally accused” means the employee has been actually charged with a crime. Before the conversation continues, the first question you should ask your employee is “Are you represented by counsel?” If the answer is yes, you should tell him that you cannot discuss the matter without first speaking to his attorney. In most cases, a person who is formally accused of a crime will already be represented by counsel.
The main reason to shut down any further discussion of the issue with your employee is that it’s considered unethical in the legal world to interview someone without first consulting with his attorney. The accused employee has an absolute right to remain silent, and your conversation may hurt him for myriad reasons.
Another reason to end the conversation is to avoid unnecessary entanglement for you and your company. You risk making yourself a witness to the accused employee’s statements as soon as you begin to discuss the facts and circumstances surrounding the accusation. You may wind up with a subpoena in your hands or unwittingly become a witness at trial if you discuss the circumstances of an alleged crime with the accused perpetrator. If you have information for either law enforcement or the employee’s attorney, it’s best to let them ask you for it instead of communicating anything through your employee.
That doesn’t mean you shouldn’t talk to the accused employee about issues that don’t relate directly to the facts of the alleged crime. For example, there would be nothing perilous about asking him when the court date is or other similar questions. However, you should not ask about the allegations, how the employee feels about the allegations, what his or her attorney has told them, etc.
What if you receive a formal request or subpoena for records?
If you receive a request for records, it would be a good idea in most cases to hire a local attorney who has a good reputation and is familiar with the jurisdiction where the person is facing the charges. An attorney who can simply pick up the phone and have a knowledgeable discussion with either the prosecutor or the defense attorney may be able to save you a lot of time and money.
What if the subpoena is a request for all of your employee’s e-mails over a three or four-month period? What if it asks for e-mails that contain protected information or originate from a private e-mail account? Subpoena requests can often become invasive, expensive, and burdensome. In many cases, a simple phone call can encourage the entity seeking your information to be more reasonable about the request. An attorney experienced in criminal investigations and prosecution will know if the records request is objectionable and may be able to save you from having to respond to improper requests. An attorney may also help you sort out what belongs to the company and what is inherently private information belonging to the employee.
What to do when an employee is being investigated for wrongdoing
Suppose your employee tells you that she has been served with a protective order forbidding further contact with another person whom she’s communicated with via her work e-mail. This is a critical point in the situation because there hasn’t yet been a decision to charge the employee, and any missteps could deeply affect the employee’s future. It’s important to handle the situation carefully because your employee is extremely vulnerable.
Whatever happened with respect to your employee’s e-mail on her work computer “is what it is,” so to speak. It’s important not to exacerbate the situation by becoming Inspector Clouseau. Instead, you need to do two things. First, recommend that the employee get a criminal defense attorney to guide her through the investigation, and avoid having any further conversations about the situation until she has consulted with counsel. Next, instruct your IT department to preserve and back up any data related to the e-mail that’s being investigated. That will protect your company from accusations of negligently or intentionally destroying information material to an investigation.
If you get a subpoena related to a criminal investigation of an employee, you’ll need to consult experienced counsel. Local counsel with a background in criminal investigations will be able to narrow the scope of what your company must produce in complying with any document subpoenas.
HR professionals are increasingly being asked to chart a steady course in the workplace when an employee is charged with or being investigated for criminal wrongdoing. Accordingly, you should be prepared to deal with situations in which employment and criminal law intersect. In such cases, it’s always advisable to consult with counsel who can assist you in fulfilling your obligations as an employer without compromising your employee’s rights.
Andrea Moseley, a partner with DiMuroGinsberg, PC, focuses on defending individuals and companies accused of white-collar crimes and during investigations by federal and state officials. She handles a broad variety of white-collar issues, including false claims, financial fraud, trademark claims, civil and criminal RICO matters, health care, immigration fraud, bribery, and money laundering. She may be contacted at email@example.com.