Mike Morris, Director
When Inspectors or OIG Agents Arrive:
Employee Rights During 'Surprise' Investigations
Greg Bell, Director
(This article first appeared in the September/October 2009 issue of The American Postal Worker magazine.)
Visits by postal inspectors or OIG agents – which are usually unannounced – often catch employees by surprise, and sometimes cause them to panic. Our stewards, officers and arbitration advocates are doing an excellent job of defending union members, but this article should remind employees of their rights. After all, when you exercise your rights to the fullest, you help protect yourself the most. And unfortunately, postal inspectors and OIG agents have persisted in conducting overly zealous investigations that have resulted in employees being wrongly accused and issued notices of removals.
Investigations by postal inspectors or OIG agents usually concern alleged employee misconduct in the workplace, but they also may relate to alleged violations of the law that could result in criminal charges. Whenever inspectors or OIG agents seek to interrogate an employee, the matter should be treated very seriously: Employees should always assert their right to assistance from a union representative. It is also important that employees be alerted not to give oral or written statements to OIG agents or inspectors unless they first have obtained advice from their steward and/or their attorney.
Before submitting to questions, employees should confer with a union representative, and ask inspectors the nature of the investigation. If the investigation potentially relates to a criminal offense, the steward should advise the employee to immediately inform the postal inspectors or Inspector General agents that he or she wishes to consult with an attorney before proceeding.
Even when employees are told that what they say won’t be used against them, if the matter under investigation is criminal in nature, the steward or the employee should advise the inspectors or OIG agents that the employee wishes to contact an attorney.
Under no circumstances should an employee sign any form or make any statement until he or she has consulted with an attorney. Even if an employee’s statement isn’t used, the employee may be charged in a criminal proceeding.
Keep in mind that inspectors and OIG agents are seeking information that is likely to lead to discipline and/or criminal charges. It is important to have a steward present to provide advice and to actively assist employees during an interrogation. The steward should attempt to clarify the facts, and assist the employee in articulating an explanation. If the steward discovers that the employee is under arrest or is a suspect in a crime, or if the steward believes that the employee may be a subject of a criminal investigation, he or she may appropriately advise the employee to remain silent and refuse to sign any statements or forms until he or she has consulted with legal counsel.
The CBA, The Courts
Employees should become familiar with their rights under applicable provisions of the National Agreement, and with landmark court decisions that come into play during workplace interrogations, such as the Weingarten ruling and the Garrity and Kalkines warnings.
Article 17.3 of the Collective Bargaining Agreement states in part, “If an employee requests a steward or Union representative to be present during the course of an interrogation by the Inspection Service, such request will be granted.” The Postal Service has acknowledged that this requirement applies equally to the OIG.
The right to assistance from union representatives during investigatory interviews was upheld by the U.S. Supreme Court in 1975 in NLRB v. J. Weingarten Inc ., 420 US 251. The Weingarten rule affords an employee a right to representation during any investigatory interview that he or she reasonably believes may lead to discipline. It is important to stress to employees that they must request union representation since management (or postal inspectors or OIG agents) are not required to notify them of their right to representation.
The Weingarten decision specifically provides that an employer must choose among three options once an employee requests union representation: (1) Grant the request and delay questioning until the union representative arrives; (2) Deny the request and end the interview immediately; or (3) Give the employee a choice of (a) having the interview without representation; or (b) ending the interview.
During investigative interviews with employees, OIG agents may provide warnings that are based on several court rulings, including Garrity v. New Jersey , 385 U.S. 493 (1967) and Kalkines v. United States , 473 F.2d 1391 (Ct. Cl. 1973). These cases relate to the principle that public employees cannot be disciplined or discharged because they invoke the Fifth Amendment privilege against self-incrimination.
In the Garrity ruling, the Supreme Court concluded that because employees were coerced by the employer’s threat of removal if they invoked their right against self-incrimination, subsequent prosecution of the employees could not rely on statements of the employees or the “fruits” of such statements. The case now stands for the principle that using the threat of discharge or any other substantial economic penalty against public-sector employees during an investigation of potentially criminal matters is coercive, and any consequent disclosure is inadmissible in a criminal trial.
The Kalkines case dealt with a federal employee who refused to answer questions based on his Fifth Amendment rights. The Court held that although the employee could not be discharged for invoking this right, “a government employer is not wholly barred from insisting that relevant information be given; the public servant can be removed for not replying if he is adequately informed both that he is subject to discharge for not answering and that his replies (and their fruits) cannot be employed against him in a criminal case.”
In other words, employees who are given immunity from prosecution should not expect to rely on their Fifth Amendment rights as justification for refusing to answer questions; if they decline to answer questions, the government may discipline them for failing to cooperate with the investigation. Of course, such discipline is subject to appeal through the grievance procedure.
When an OIG agent presents an employee with a Kalkines warning – which allegedly conveys a grant of “use immunity” – it is appropriate to ask for the name of the U.S. attorney who authorized the grant of “use immunity.” In the absence of corroboration that such immunity was actually granted, a steward may advise the employee to not sign the Kalkines Warning until he or she has consulted with legal counsel.
The most important thing to remember when you are questioned by postal inspectors or the OIG is that you have the right to request a union representative. No one should face an Inspection Service or OIG interrogation without the assistance of a union representative or a private attorney. APWU representatives are trained to assist employees in these circumstances.