Employee Investigations and Actions

Federal employees’ most common type of investigation is administrative investigations into alleged work-related misconduct. Administrative investigations are often initiated to address workplace-related misconduct. There are various types of federal employee investigations, which can include the following:

• Internal Agency investigations for misconduct;
• Office of Inspector General (OIG) investigations for illegal or improper activities, including fraud;
• Equal Employment Opportunity (EEO) complaints for harassment or discrimination; or
• Office of Special Counsel (OSC) complaints for whistleblower retaliation, Hatch Act violations, or other prohibited personnel practices.

Federal employees investigated for misconduct have certain fundamental rights, including the right to legal counsel during the investigation.

Yet, these rights largely depend on the type of investigative interview being conducted. Sometimes, a federal employee may be legally required to answer an investigator’s questions or risk severe disciplinary action. As such, it is highly recommended that federal employees consult with experienced federal employment lawyers who can help them understand what rights are available to them under their specific circumstances.

Interview Preparation

To prepare for an investigative interview, a lawyer guides federal employees in collecting their thoughts and articulating what they know and don’t know about a particular incident. The goal is to provide the investigator with accurate, truthful, and forthcoming responses to the interview questions. Even when misconduct likely occurs, a federal employee should still be fully prepared and forthcoming during an investigative interview to avoid any additional consequences.

Types of Investigative Interviews

There are two types of investigative interviews for federal employees: compelled and voluntary.

• For voluntary interviews, federal employees can choose whether to participate.
• When an interview is compelled, the federal employee must either undergo the interview process or face potentially severe discipline.

Federal employees need to understand what type of investigative interview they are facing. At the start of the interview or before it, the investigator will likely provide you with a notice of your rights and a warning about the interview. The type of warning can indicate the type of interview—voluntary or compelled—being faced.

Garrity and Kalkines Warnings

The first type of warning is known as a Garrity warning. A Garrity warning informs the federal employee that they are free to remain silent and refuse to answer questions and will not receive disciplinary action for doing so. When a Garrity warning is given, it signals that the federal employee is testifying voluntarily and may be subject to criminal prosecution based on the information collected during the interview. An interview preceded by a Garrity warning is therefore considered a voluntary interview.

The second type of warning is often referred to as a Kalkines warning. When an employee is given a Kalkines warning, they are informed that their statements may not be used against them in criminal court and that they must provide truthful information during the interview or otherwise be subject to disciplinary action. An interview preceded by a Kalkines warning is, therefore, considered a compelled interview.

Unclear Warnings

Often, the warning you are given before an administrative interview is unclear. This can confuse federal employees about whether or not an individual is compelled to speak with investigators. Additionally, it is important to remember that an agency may use the information collected in compelled interviews to bring an adverse action against a federal employee, including an action to remove a federal employee from their employment. Our experienced attorneys assess these issues and interface on your behalf with the investigator to ensure you understand exactly what processes you are involved in, what your rights are, and any possible ramifications.

Issues to Consider During Investigations

As a federal employee who has found themselves to be part of an investigation, you should ask yourself the following questions to determine your understanding of the process ahead:

• Am I a witness to an investigation, or am I the subject of an inquiry?
• Do I have the right to consult with an attorney?
• Do I have the right to know what is being investigated?
• Do I have to answer the investigator’s questions?
• Do I have to answer the questions immediately?
• Do my answers expose me to self-incrimination or disciplinary action?

Knowing the answers to each of these questions and many others is essential to protecting your rights as a federal employee in the investigation process. A federal employment attorney can help guide you through these questions to improve your understanding and best prepare you for the investigatory process ahead.

The timelines surrounding disciplinary and adverse actions, primarily when notices of removal or suspension are issued, are often short and unforgiving. In most cases, the employee will have no more than thirty days, and usually much less, to respond to the proposed disciplinary or adverse actions. We recommend that you contact an experienced attorney to determine all of the options available to protect your career.

Contact Paul N Jones Law Firm Today

If you are a federal employee facing a misconduct investigation, disciplinary action, or adverse action, contact us to learn how our experienced federal employment attorneys may assist you.