Protection From Threat of Job Termination or Criminal Prosecution Based on Investigatory Interviews
Public employees have certain constitutional rights that apply in their employment that may not apply to private employees. The Constitution’s Fifth Amendment provides protection during the interrogation of public employees (“Garrity Rights”) For example, in Garrity v. New Jersey, 385 U.S. 493 (1967) (Argued November 10, 1966 Decided January 16, 1967), the Supreme Court held that an employee could not be disciplined for invoking their Constitutional Rights to remain silent and seek legal representation during the course of a criminal investigation. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to the imposition of discipline for insubordination. Further, while the statements you make may not be used against you in a subsequent criminal proceeding, they can still form the basis for discipline on the underlying work-related charge. To ensure that your Garrity rights are protected, you should ask the following questions:
• If I refuse to talk, can I be disciplined for the refusal?
• Are my answers for internal and administrative purposes only or is there a possibility of criminal prosecution associated with this interview?