Employee Rights to Legal Representation During Investigations

Employers conduct internal investigations for a variety of reasons, such as violations of work rules, substance abuse and even attitude problems. When an employer receives a complaint from an employee about workplace discrimination or another matter that involves alleged violations of law, the employer has a duty to investigate. If an employer fails to investigate misconduct, such as sexual harassment or threats of violence, the alleged victim may have grounds for a lawsuit against the employer. Whether an employee who is being investigated for misconduct has a right to legal representation during an investigation depends upon the type of employment.

When an employer receives a complaint from an employee concerning a fellow employee's alleged misconduct, the employer may ask someone in the human resources department to conduct an investigation or seek the assistance of an outside investigator. Sometimes, senior-level management may assist in conducting investigations. When an investigation requires strict confidentiality, an attorney or a consultant with experience conducting workplace investigations may be called in. Just like external investigations conducted by police agencies, internal investigations generally involve interviewing witnesses and preparing documentation. Employers are wise to keep all documents relating to the investigation secure, as the employee who is under investigation has a reasonable expectation of privacy; leaked information that could cause the employee embarrassment may give rise to a lawsuit.

Public sector employees — that is, individuals employed by municipal, state and federal governments — have broader rights than private sector employees. This is because the Constitution protects individuals from the actions of government, and government employers fall within that scope. Thus, public sector employees have the right to be protected from self-incrimination when an investigation is related to possible criminal conduct, which is why public sector employees generally have the right to have legal representation present during investigative interviews. The Constitution does not protect individuals against the actions of private employers during investigations; however, employees of private sector, unionized workplaces have greater rights than private sector employees in nonunion work environments.

Private sector employees who work in unionized workplaces are afforded the right to have a union representative present during an investigation that may lead to disciplinary action. Private sector employees who do not work in unionized workplaces do not have a right to any representation during investigations — legal or otherwise — even if the investigation may lead to criminal charges. That is not to say that employers must refuse the presence of counsel; employers may agree to employees' requests to have counsel present. However, they are not necessarily required to do so. Any employee — whether employed in the private or public sector — has a right to legal representation. However, private sector employers are not required by law to allow an employee's attorney to sit in during investigative interviews.

Generally, courts have ruled that private sector employers may terminate an employee for being noncompliant with an investigation. However, courts have also ruled that employers do not have an automatic right to terminate an employee simply because he requested time to consult with an attorney or to have an attorney present during investigative proceedings. Absent bylaws specifically precluding an employee from bringing legal representation to an investigatory interview, an employer may face legal action if an employee is terminated based on his request for the presence of legal counsel.