Cochran/West: How to advise employees about government investigators

By Robert Cochran and Lu Carole West

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

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 [email protected] or [email protected]. The opinions expressed are those of the authors.