Self-incrimination in Workplace Investigations

In the past few months, the ACFE has received several inquiries about questions of self-incrimination and the Fifth Amendment. Because I’ve focused on the related issues of attorney-client and work product privilege waivers correlated with a company’s cooperation with federal authorities, as well as First Amendment whistle-blowing protection of public employees, it would be good to address the Fifth Amendment’s impact upon incriminating statements made by employees – both public and private.

STATE ACTION 

Subject to limitations, the U.S. Constitution generally doesn’t limit the powers of private employers in conducting corporate investigations. There must be evidence of “state action” to bring a charge against an employer for violating a constitutional right. State action is any undertaking carried out by, or at the request of, the government. Thus, it occurs when a state or federal entity investigates an individual or organization. Whether state action is present in an investigation is determined on a case-by-case basis. Obviously, investigations conducted directly by state or federal authorities would qualify under the rule, but the following might also be considered state action in some circumstances:

• investigations by a private company at the request or suggestion of state or federal authorities;
• investigations by a private company that are later assumed or expanded by state or federal authorities;
• joint investigations by a private company and state or federal authorities;
• investigations by a private company that are required by state or federal law; and
• searches or interrogations conducted by off-duty state or federal authorities.

THE FIFTH AMENDMENT 

The Fifth Amendment states that, “no person shall be ... compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. ...” The Fifth Amendment only protects individuals against self-incrimination where there is state action. Self-incrimination in this context is the making of any statement, which could impute one’s personal involvement in a crime. Unless governmental conduct is involved in the investigation of a private employee, the private employee isn’t protected by the Fifth Amendment should he refuse to answer self-incriminating statements, and he can subsequently be discharged for such refusal.

The Fifth Amendment applies to investigations of public employees because the investigators conducting the questioning are employed by the government or acting on its behalf. However, public employers may discharge employees for refusing to answer specific questions about their compliance with job policy and/or performance. The government may discipline or terminate an employee for commission of a crime or for violating policy, but it can’t discipline or terminate the employee solely on the basis that the employee asserted his Fifth Amendment right.

Fifth Amendment protection applies to individuals whose incriminating statements can be used against them. It doesn’t extend to witnesses who refuse to answer questions that could incriminate another individual. Thus, a non-suspect witness who has knowledge about another’s criminal activity, and refuses to answer questions about this activity can be disciplined for his or her refusal.

RIGHTS & WARNINGS 

Often, there’s confusion as to when a public employee can refuse to answer self-incriminating questions without being subject to criminal prosecution. Garrity warnings and Kalkines warnings are the most frequently used cautions in the government workplace.

Garrity warning 

Garrity warnings are given to public employees who are the subjects of an investigation involving employment matters. The warning advises an employee that he’ll be asked questions in connection with workplace misconduct, and that the employee may give answers to such questions on a voluntary basis. Furthermore, the employee is advised that his answers could be used in a subsequent criminal proceeding, and may therefore refuse to provide answers that may tend to incriminate him without being subject to discipline or dismissal. Garrity warnings are likened to Miranda warnings minus the custodial setting.¹  

Kalkines warning  

Kalkines warnings are given when a public employer or government official wants to compel an employee to provide answers that have potential criminal liability and administrative consequences. In order to compel an employee to answer questions that might implicate the individual, the employer/ government official must receive written approval from the appropriate federal or state prosecutorial authority to grant the employee “use immunity.”²  

Use immunity precludes prosecution against the employee for statements derived from the compelled testimony. However, it doesn’t protect the individual from being subject to prosecution where the government receives evidence from a legitimate independent source. Furthermore, it’s important to note that an employee who agrees to answer questions following a Kalkines warning may still be prosecuted for providing the public employer/government official with false statements or answers.³ Should the employee refuse to answer questions after having been given a proper Kalkines warning, the public employer may take disciplinary measures or otherwise dismiss the employee.

A custodial setting is equal to that of a custodial arrest or interrogation, which occurs when an individual has been taken into custody or otherwise deprived of his or freedom by police or government authorities. Individuals in a custodial setting are entitled to be advised of their constitutional rights by being given certain warnings. The custodial setting does not require that an individual be formally arrested.

Such approval often comes in the form of a letter of declination to prosecute.

Juliana Morehead, J.D., CFE, is a legal writer and editor for the ACFE.   

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