Jim Garrity

Florida & Georgia Employee Rights Lawyer

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What to Do If Your Employer Demands that You Give A

Statement in an Internal Investigation
If you are suddenly approached on the job and instructed to give a statement as
part of an internal investigation, consider these thoughts in deciding
how to proceed.
DISCLAIMER: THESE ARE GENERAL RULES, NOT LEGAL ADVICE. EVERY
SITUATION IS DIFFERENT. USE THESE AS BACKGROUND INFORMATION.
ASK A LAWYER IF YOU NEED SPECIFIC ADVICE.
1. If you are a current employee, you are generally required to cooperate.
Your employer may be able to fire you if you dont. The general rule in
Florida and Georgia is that an employee is required to cooperate with internal
investigations. Refusing to do so can give the employer a legitimate reason to
terminate you.
2. If you are a former employee, you are generally not required to
cooperate. Some employers will reach out to you even after youre no longer
employed, and lead you into believing that you must cooperate with an
internal investigation. This is generally not true. In most circumstances, I do
not recommend cooperating with a former employer. If you have asserted a
claim against the employer, the most likely reason for the request is to gather
information to defeat your claim. If you have not asserted a claim, it is
possible that anything you say could become relevant in someone elses
lawsuit. You may have no legal protection against claims for defamation or
slander if you say something in an interview like that when you have no legal
obligation to do so.
3. If ambushed and asked to give a statement without any prior warning,
ask that the appointment be set for later in the day or some other day.
Use that time to gather your thoughts and to review documents. You should
also ask what the topics will be so that you can properly prepare.

4. If ambushed and instructed that you must give a statement immediately,

use extreme caution in what you say. Most of these statements are
recorded and will be preserved for years. It may not be obvious in the future,
from a review of your statement, that you were forced to give a statement
without warning. Answers that are wrong may hurt you. Be sure if you are
forced to answer questions without warning that you clearly state on the
record that you were not given notice about the interview and that your
answers might be different or more complete if you had been given notice. Ask
the interviewer while the recorder is running why you were not given any
notice. Use the recording to your advantage by documenting the unfairness of
the situation.
5. Ask that there be no recording of the statement and that the interviewer
just take notes. If your employer refuses, use your own recorder to
create your own copy. There is generally no legal obligation for an employer
to give you a copy of your own recorded statement. So make your own. If the
employer refuses to allow you to make your own, be sure to mention this on
the record while the employers recording is running and also ask that your
employer provide you a copy (I want to note for the record that I asked you to
allow me to record this independently and you refused. Can you tell me why
you refused? And will you provide me a copy of this complete interview within
24 hours?)
6. Watch out for unusual behavior during the interview. Be sure to mention
(while the recorder is running) any unusual tones of voice, facial gestures
or other behaviors. Remember that the recorder will only capture the sound
of voices (unless it is a video recording, which is very rare). So your
interviewer may do things during the interview to agitate you that will not be
caught on the recording. Be sure to speak up and note each time you observe
it. In some instances, I have been told by employees that the investigator or
interviewer rolled their eyes, smirked at them, or leaned very close to them for
the purpose of making them uncomfortable. In one case, an investigator
moved his chair around the table to sit knee-to-knee with my client. It was an
intimidation tactic, and my client was smart enough to describe out loud
exactly what the investigator had just done. Keep in mind that some
recordings will disappear and the only thing that remains will be a printed
transcript of the conversation. So even tone of voice cannot be captured
unless you speak up (such as, Why are you raising your voice at me? Why
are you laughing at me? Why did you just move your chair so that you are
sitting inches from me?)
7. If you are unsure about an answer, say so. Do not guess. The fact that you
are asked a question does not mean you know the answer. It is not being
untruthful to say that you do not know the answer if, in fact, you do not know
it. Resist the urge to give an answer simply because you feel pressured to do
so. If you know the answer, say so and answe truthfully and completely. But if
you dont know, or are simply being asked to guess, say that you do not know.

8. Do not consent to giving the statement under oath. You are generally not
required to be placed under oath before giving a statement. Object to it. There
are many reasons not to give a statement under oath. If the employer insists
on it, ask them why the statement must be under oath and be sure to state on
the record that you objected to being placed under oath.
9. If you are placed under oath and then asked questions, use extreme
caution in giving answers. You could be charged with perjury if you give
answers that you knew or should have known are untrue. Also, statements
given under oath are usually admissible in court. Statements that are not
under oath are usually inadmissible. So being placed under oath may allow
the employer to use your statement in ways that would surprise you. You
should use great precision in giving your answers.
10.
Do not agree with facts the investigator or interviewer tells you
unless you independently know them to be true.
Just as some law
enforcement interrogators will plant false facts and ask the subject to agree,
so will HR and EEO interviewers. They may present facts as if they were
obvious for the purpose of making you feel foolish if you dont agree. (You
knew Mike was giving people a hard time and using profanity, right? Right?)
If you dont know something to be true, you must say so. Otherwise you will
be stuck with your answer for all time. Many investigators plant facts in a
witness mind because they know that many people will simply agree with
something that sounds reasonable and that is presented in a forceful manner
even if the investigator knows you have no idea whether it is true or not. But
once you agree with it, you are stuck with your answer.
11.
Do not let the investigator reword your comments. Most interviewers
or investigators with your HR and EEO departments are skilled in the wording
used to create or destroy claims against the employer. If you believe you or
others have been the victim of discrimination, say so. Often, for example, an
HR interviewer will pressure you to stop using the word discrimination, and
try to get you to use word like conflicts or disagreements or management
styles. You should assume there is a reason for any effort to change the way
you describe things. Dont let anyone put words in your mouth. Describe
things as you see them. If you feel the investigator is pressuring you to
rephrase things, say so on the record (e.g., I dont know why you keep
pushing me to describe it as a personality conflict. It wasnt a personality
conflict. The boss was harassing Andrea because of her race and that was
quite clear to me. It wasnt a personality conflict at all and I wish you would
not keep changing what I am telling you.)

12.
If you can better answer questions by looking at documents, say so
on the record. Often, we provide more accurate answers to a question if we
have the chance to look at documents. Internal investigators may pressure
you to answer questions even though you cannot look up documents. If that
happens, you can say something like I cant give you an accurate answer on
that, and I will not give you a guess, without looking at the documents. Can I
look at them? If not, why not? Dont you want the best answer I can give
you?).
13.
If - after your interview is over - you think of other information that
will clarify your answers, send an email immediately to the investigator
with the additional information. Some investigators will turn on you if it
suits them. They may claim you gave false answers even though it was a
simple mistake of memory. This is why it is so critical that you ask for time to
think about the topics before you begin the interview and, if not allowed time,
that you make it clear repeatedly during the recorded interview that you were
not given notice of the interview and were not given a chance to look at
documents.
14.
If the interviewer tells you that you are not permitted to talk to
anyone else about the interview or subject of the investigation, ask why.
At least one federal agency that deals with workplace investigations has ruled
that an employer may generally not forbid you employees from talking about
current investigations. The National Labor Relations Board ruled in 2012 that
except in unusual circumstances, an employer may not prevent employees
from speaking to each other about the subject of internal investigations. Such
an instruction may itself be a violation of your rights under federal law.
15.
Consider calling an employee rights lawyer for guidance if you have
the chance. Most employee-rights lawyers, me included, will speak to you for
free by phone and without an appointment. If youre ambushed, or even if
youre given a day or two to prepare, dont hesitate to call an employee-rights
lawyer for help. Your employer has an army of HR, EEO and other advisors,
not to mention lawyers. Its smart to get your own.
16.
Dont assume that your statement will remain confidential. Beware
of promises that what you say will remain private. That is rarely true. If your
employer is a city, county, state or federal agency, it will certainly become
public at some point. That means that the person you talk about will be able
to read what you said. It also means that the news media may be able to
publish your statement. If there is a dispute that winds up in court, lawyers
will obtain it as well, and may grill you about misstatements later. Think
ahead.

17.
Remember that in most cases, HR, EEO and other employer
representatives are not there to help you. The employer is paying them for
a reason to protect the employer. Many employees wrongfully assume the
HR office is a friend. In some cases that may be true. But in the
overwhelming number of circumstances, HR and other officials are your
adversary in every way, even if they act friendly and appear to appreciate your
input. And they are unlikely to come to you wind up being sued because of
something you said.

Questions about this or another employee-rights issue? Call me for a

free phone conferral.
Toll-Free: 1-800-663-7999

Jim Garrity, Esq.

Representing Employees Only
Main Offices: Tallahassee, Florida
More information: http://www.JimGarrityOnline.com
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