Attorneys in Attendance

Question: As an HR executive, I often conduct workplace investigations for my company. One of the witnesses (the complainant) whom I will be interviewing told me that she wants to have her attorney attend her interview. This is not our common practice. Is it OK if I tell her that her attorney cannot attend — or do I have to let the attorney attend? Any guidance would be appreciated.

Answer: First and foremost, it is crucial that you consult with your legal counsel as soon as you learn that a witness to an investigation (complainant or otherwise) has retained an attorney before moving forward with any internal investigation.

This is because retaining counsel usually indicates that the witness/complainant will likely be participating in the investigation from an adversarial position, and as such, will likely look for mistakes or omissions in the process (whether or not the counsel is present).

By consulting with your employer’s legal counsel beforehand, you will be better able to conduct a full and fair investigation as well as protect the company.

That said, employers are not required to allow a private employee’s attorney to attend an investigatory interview. Buerger v. Southwestern Bell Telephone Co., 982 F.Supp 1247 (E.D.Tex. 1997) (holding that the Sixth Amendment right to counsel does not extend to private employees during internal workplace investigations.)

Employers should bear in mind, however, that even “[p]rivate conduct … may become so pervaded by governmental involvement [so as to lose] its character as such and invoke[] the full panoply of constitutional protections”, including the right to have an attorney present at an internal investigation. People v. Ray, 65 N.Y.2d 282, 286 (N.Y. 1985).

Absent “a clear connection between the police and the private investigation”, however, (such as a workplace investigation undertaken by the employer at the behest of the police), this right to counsel will usually not attach.

Nonetheless, while private employees have no legal right to the presence of counsel during ordinary workplace investigations, case law presents several compelling reasons to consider allowing the employee’s attorney to attend such proceedings, and moreover, even to encourage it.

First, an employee whose request to have an attorney present at an internal investigation is denied may refuse to cooperate in the proceeding. If the participation in the proceeding would have been in support of the employer/ against the complainant, and the employee refuses to participate, the refusal may qualify as protected activity within the meaning of the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), which prohibits employers from taking adverse action against employees on the basis of their participation in such activity.

As such, termination or discipline for an employee’s refusal to cooperate such circumstances, may give rise to a claim for unlawful retaliation. See Smith v. Columbus Metropolitan Housing Authority, 443 F. Supp. 61 (S.D. Ohio 1977) (holding that “whether an employee decides to assist the charging party, or refuses to assist the respondent employer, the employer may not retaliate against the employee, because this decision of the employee constitutes participation in an investigation or proceeding under Title VII”).

While courts have refrained from articulating a precise standard, it appears that whether such a refusal amounts to protected activity will most often turn on the employee’s reason for refusing to cooperate.

One line of cases establishes that an employee’s failure to cooperate with an employer’s internal investigation will only be protected insofar as the employer/defendant has engaged in some potentially unlawful activity during the investigation.

For example, an employee’s failure to participate in an investigation was deemed protected activity where the employer pressured the employee to give a false statement during the investigation, and provide evidence he did not possess. Thomas v. Norbar, Inc. 822 F.2d 1089, 1987 WL 38040, *5 (6th Cir. July 14, 1987) (discussing Merkel v. Scoville, Inc., 787 F.2d 174, 179-80 (6th Cir. 1986), cert. denied, 479 U.S. 990 (1986)).

In contrast, an employee’s general refusal to cooperate with an in investigation will usually not be deemed to be protected activity. See Miller v. Express Casino Joliet Corp., 2009 WL 1469730 at *3 (ND Ill 2009); Tuthill v. Consolidated Rail Corp., 1997 WL 560603, *3 (E.D. Pa. 1997) aff’d, 156 F.3d 1220 (3d Cir. 1998) (unpublished opinion); Morris v. Boston Edison Co., 942 F.Supp. 65, 71 (D.Mass. 1996).

That said, it is important to thoroughly evaluate the nature of the employee’s complaint, as well as the potential negative impact that a refusal to allow counsel to be present at the investigation may have on the investigation as a whole.

Employers should also adhere to and consistently enforce their own written policies regarding internal investigations. Regular review should be done to ensure that all complaint investigation procedures are clear and detailed, particularly on the question of whether one may have his or her personal attorney present at internal investigations.

If an employer maintains a policy or practice of allowing such presence, a deviation from it may prompt a court to find that the refusal was motivated by retaliatory bias.

Employers should also consider what, if any, effect refusal to permit counsel at an interview may have on potential admissions made by the complainant during the interview. In cases where the competency of the complaining employee may be an issue, if the employee has requested and been denied the presence of counsel at his/her interview, a court may find that any statements obtained during that interview may be not have been voluntarily or knowingly made.

It is also important to consider that employers may actually stand to benefit from allowing the attorney’s presence during an interview. In Duviella v. Counseling Service of the Eastern District of New York, 2001 WL 1776158 (E.D.N.Y. Nov. 20, 2001), the complaining employee was given the option of having her attorney present during her investigatory interview. However, the complainant refused to participate in the investigation notwithstanding the investigator’s offer to allow her attorney’s presence.

As a result, the court found that such informed refusal and subsequent noncooperation precluded the complaining employee from later challenging the results of that investigation.

If you choose to allow the presence of the employee’s counsel at the interview, you should inform the complainant and his/her counsel that the counsel may be subsequently called upon as a witness, and thereby be precluded from representing the complainant if the matter proceeds to litigation.

In my practice, I have found that attorneys often overlook this fact, but once I remind them, they usually decide not to attend the interview. However, if an attorney insists on attending, it is wise to have them agree (in writing) to specific ground rules for conduct in advance of the interview.

Helpful ground rules include agreeing not to interrupt the interview process, not to answer for the witness and not to coach the witness. Further, make sure to document the presence of counsel and any obstructionist behavior during the interview process.

Documentation of obstructionist behavior is important because attempts by an employee’s counsel to interfere with the investigatory process may prompt a court to preclude that employee from later attacking the results of the investigation. O’Dell v. TransWorld Entertainment Corp., 153 F. Supp. 2d 378 (S.D.N.Y. 2001), aff’d, 2002 WL 1560266 (2d Cir. July 16, 2002); Spreight v. Albano Cleaners, Inc., 21 F. Supp. 2d 560 (E.D. Va. 1998).

It should be noted that unionized and public employees enjoy different rights than private employees.

For example, unionized workers have a right to have representatives present at internal investigations that could result in disciplinary actions against the employee (i.e., Weingarten Rights), See N.L.R.B. vs. Weingarten, Inc., 420 U.S. 251 (1975).

Many state statutes provide for exceptions to the “no right to counsel” rule for those employed by the federal government and/or state governments. See, e.g., 5 U.S.C. § 7114(a)(5) (1978).

In sum, while it may be your knee-jerk reaction to deny requests for the presence of counsel at a complaining employee’s internal investigation interview, you should first carefully consider the significant legal and practical implications, and consult with your own counsel before making any decision.

In some cases, permitting counsel to be present at the complainant’s interview may provide the employer with a strategic opportunity to strengthen the credibility of its investigation.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department’s Employment Litigation and Arbitration Practice Group.

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