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Cochran/West: How to advise employees about government investigators

May 21, 2014
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By Robert Cochran and Lu Carole West

cochran-robert.jpg Cochran

In-house attorneys advise employees on many topics, but do the employees of your company know what to do during a government investigation? Government investigations are a fact of life in today’s business world, especially in highly regulated industries such as health care, securities and finance. Once a corporation becomes aware of an investigation or believes an investigation is imminent, counsel should provide the affected employees with some practical advice on how to respond to investigators who request interviews of the employees.

west-lu.jpg West

The government will often begin an investigation by calling or making unannounced visits to employees and managers. Investigators like to make unexpected calls or unannounced visits because they may believe the element of surprise will yield a more forthcoming response from a startled individual. These unannounced visits are likely to occur at an employee’s home. Many companies decide to send a memorandum to all affected personnel explaining, among other things, the nature of the investigation and the employees’ rights and obligations if approached by investigators for interviews.

The company will want to be very careful in how it instructs employees and managers, so as not to create an appearance of trying to obstruct or interfere with an investigation. Consulting with counsel will be important in providing the right guidance. However, some general principles related to employee rights and responsibilities include:

1. Government investigators have the right to contact you and to request an interview of you. However, you have no obligation to talk to investigators. Indeed, you have the absolute right to refuse to be interviewed. The decision to speak with an investigator is entirely up to you.

2. If you agree to an interview, you may terminate the interview at any time and you may refuse to answer any question posed to you.

3. You have the right to consult with an attorney before every conversation with government investigators. You are also entitled to have an attorney with you during any conversations you may have with an investigator.

4. If you agree to an interview, you must provide complete and truthful information in response to any questions you choose to answer. Lying to investigators is a crime.

5. If you do not want to be interviewed, you should politely, but firmly decline the investigator’s request.

6. Do not attempt to hide evidence by altering, destroying, tampering, deleting or discarding any documents or records, including electronic information.

7. Do not attempt to interfere with the government’s investigation.

8. Regardless of your decision, if an investigator contacts you it is helpful if you immediately contact your supervisor or legal counsel. This will help your employer ensure that it complies with any obligation it may have to preserve relevant evidence. You have every right to tell your employer about the government contact. The investigator may request or suggest that you keep the contact confidential but there is no law that would prevent you from disclosing the interview to your employer.

The time to consider training or education is before government investigators knock on your employees’ doors. While the experience is never easy, preparing your employees in advance can help avoid confusion and uncertainty.•

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Robert Cochran and Lu Carole West are attorneys with Ice Miller LLP. They assist clients in regulated industries such as health care, securities and finance with government investigations, government enforcement, corporate compliance, and internal investigations. They can be reached at robert.cochran@icemiller.com or lucarole.west@icemiller.com. The opinions expressed are those of the authors.

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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