Maybe it’s “Law and Order” but employers are increasingly encountering employees who are unwilling to talk to a human resources manager during investigations unless they can have a lawyer present. I have been asked, “Does an employee have a right to have a lawyer present when he is being questioned about something?” The answer is “No.” While employees in union workplaces do have a right to have a representative present during investigative interviews that could result in discipline, employees – even those represented by unions – do not have a right to have a lawyer present when being questioned by human resources.
So what should an employer do when an employee refuses to cooperate in an investigation unless he can lawyer-up? If the employee being questioned is one who is suspected of wrongdoing, the employee’s lack of cooperation, by itself, could be justification for termination.
On one hand, if the employee who is refusing to cooperate in an investigation without their attorney being present is the very employee who complained about a potentially unlawful practice in the first place, terminating that employee because they refuse to talk without an attorney could be considered retaliatory. At that point, the employer has to make a decision as to whether to forego the interrogation of the employee or acquiesce to the employee’s request for counsel to be present. Each of these options presents its own problems.
If the employer foregoes questioning a complaining employee because that employee insists on having a lawyer, it risks being accused of not having appropriately investigated the complaint.
On the other hand, any time you allow a plaintiff’s lawyer to attend an investigatory interview, there is a risk that the lawyer will interfere with the questions or attempt to hijack the investigation and start asking questions of the company’s managers. Sometimes, I have been able to persuade plaintiffs’ lawyers to reconsider attending an interview, by pointing out that they could inadvertently become witnesses in some future lawsuit. However, if a plaintiff’s lawyer insists on attending, the company may want to have its own counsel present as well.