Are you facing a federal workplace investigation? It can be an unsettling and confusing experience. The stakes are high, with potential consequences ranging from disciplinary action to criminal prosecution. It is crucial to understand your rights and responsibilities. This post aims to empower federal employees, offering clarity and guidance on how best to navigate an investigation effectively.  

UNDERSTANDING YOUR RIGHTS

As a federal employee, you have the right to receive critical warnings before any investigative interview. These warnings vary depending on the nature of the investigation and will provide you with essential information about your rights and obligations during the investigation. Here is what you need to know:

• Garrity Warning: This warning alerts you that any statements you make may be used against you both administratively and criminally. You have the right to remain silent, safeguarded by the U.S. Constitution, and can refrain from answering any questions that may incriminate you. 
• Kalkines Warning: Unlike Garrity, this warning notifies you that statements you make can only be used against you for administrative purposes. You should know that you are required to cooperate fully and cannot refuse to answer questions. The government cannot use your answers against you in a criminal matter, except for willful and knowingly false statements.
• Weingarten Rights: While not a warning, union members have a right to representation during any questioning that the employee reasonably believes could lead to disciplinary action. The agency is not required to notify a union member that they have this right but if the employee requests a representative then it must be provided. 

UNDERSTANDING YOUR RESPONSIBILITIES

Your cooperation and truthfulness are paramount during an investigation:

• Cooperation: The extent of your cooperation hinges on the nature of the investigation, and warning that you receive. Under a Garrity warning, you may choose to remain silent and not answer any questions that you reasonably believe may incriminate you. If you receive a Kalkines warning, you must truthfully answer all questions. Refusing to cooperate or answer questions could be an independent basis for the agency to discipline you.  
• Truthfulness: Avoid making any false statements, which can be grounds for disciplinary action for lack of candor or falsification, regardless of the outcome of the investigation. Federal law enforcement officers and more senior officials need to be particularly careful given the trust agencies place in such positions. Finally, even if you are issued a Kalkines warning, any knowing and willful false statements during an investigation could still lead to criminal charges.

TAKING ACTION

Upon notification that you are under investigation, taking these steps immediately will help to protect your rights and your job:

• Legal Counsel: Seek guidance from an attorney experienced in representing federal employees during workplace investigations. They will help you understand your rights, prepare for the investigation and navigate the complexities of the process, as well as any actions that follow.
• Clarification: Determine the nature of the investigation promptly. You may be advised when you are informed you are under investigation, but if not, you should explicitly ask the investigator to notify you whether it is potentially criminal in nature or purely administrative. If it is criminal in nature, exercise your right to remain silent and consult with a criminal attorney.
• Preparation: Gather relevant evidence and familiarize yourself with the alleged misconduct, without interfering with the investigation or potential witnesses. This will help you prepare for your investigative interview and will help in defending against any charges of misconduct following the investigation.
• Professionalism: Maintain your professionalism during the investigation. This can be difficult in the face of allegations of misconduct but your behavior during the investigation can influence whether, and to what extent, the agency proposes disciplinary action if the investigation finds you committed misconduct.

The Law Firm of Matthew D. Estes regularly represents and defends federal employees during workplace investigations, as well as during any proposed disciplinary actions that may follow. If you are under investigation, please contact us as soon as possible to ensure your rights are protected.

**This post is not intended to constitute legal advice and should not be interpreted as legal advice. Neither this post nor any of the information contained in it creates any attorney-client relationship.**