Chambers and Partners Publishes Article by Jonathan Harris and Addy Schmitt on Internal Investigations

July 27, 2023

Chambers and Partners, as part of its Chambers Expert Focus Series, recently published an article co-authored by HSW managing partner Jonathan Harris and D.C. office managing partner Addy Schmitt.

The article, “Investigations Carried Out by Private Employers May Still Be Subject to Constitutional Protections for Public Employees,” discusses the legal landscape for private employees and employers during internal corporate investigations. Specifically, the authors explore whether long-established constitutional protections prohibiting a public employer from compelling an employee to incriminate herself during the employer’s investigatory questioning—protections known as “Garrity rights”— could extend to private employees when a corporate employer questions an employee in the course of an internal investigation.

As Harris and Schmitt note, this is an important question where the company’s internal investigation is being conducted in coordination with, at the behest of, or in response to a government inquiry. In those circumstances, an argument can be made that the employee is effectively being questioned by the government (through the company’s counsel) and is therefore entitled to the same protections against self-incrimination at play when the government does the questioning directly.

“When an employee refuses to cooperate [with an internal investigation], courts must determine what level of adverse employment-related action is permissible,” write Harris and Schmitt. “Emerging case law suggests private employee statements that are the product of coercion will receive similar Garrity protection when the government is sufficiently involved...”

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