Legal Insider: Administrative Investigations by Employers

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement and private sector employee matters.

When an employee has been accused of engaging in workplace misconduct, the employer will sometimes conduct an administrative or internal investigation to determine the validity of such claims and also what actions, if any, must be taken against the employee.

Reasons for Employment Investigations

The purpose of an investigation is for the employer to gather relevant evidence regarding the employee’s alleged misconduct and determine whether the misconduct warrants a disciplinary or an adverse action (e.g., termination, demotion or significant suspension) within the requirements established by law, policy or regulation.

While less likely, sometimes an investigation can lead to a potential criminal investigation. Depending on the federal, state, local agency or private employer involved, a supervisor or other designated investigator may be asked to conduct an investigation regarding the facts at issue. Employees may then be asked to provide verbal or written responses to questions regarding the alleged misconduct.

Employee Participation in Interviews

Employees, depending on their particular employer, may have a duty to fully cooperate with the assigned investigator or can decline to participate in the investigation unless they are ordered to do so. For example, federal employees may decline to participate in an administrative investigation if it is voluntary. Private sector employers have different rules. Refusing to cooperate with an investigation or providing false statements or answers during an investigation can sometimes be grounds for disciplinary action.

Additionally, providing false statements, if made to a federal or other law enforcement investigator, can also subject an employee to potential criminal penalties. Internal or administrative investigations can also involve risks for the employer. Inadequate employer investigations may raise questions about the accuracy of the results or whether the employee was treated fairly. In addition, the employer may not like what the investigation uncovers and will have an obligation to resolve or address issues, such as a systemic problem or legal impropriety.

When to Seek Legal Advice

If a matter under investigation is serious, it is generally important to seek legal advice. Prior to an employee providing information to an employer, it is helpful for an employee to discuss with an attorney the issues associated with the information being sought by the employer and the employee’s role in the matter being investigated.

An attorney familiar with administrative or internal investigations can provide legal advice to assist an employee in preparation for responding to questions about his or her actions in the matter being investigated. In addition, an attorney can often accompany the employee during any investigative interviews.

Our law firm represents and advises employees on employment-related matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.