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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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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