Legal Insider: Responding to Workplace Investigations

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

By Kimberly H. Berry, Esq.

When an employee has been accused of engaging in workplace misconduct, the employer will sometimes conduct an administrative or internal investigation. Some reasons why employers investigate employees include discrimination complaints, threats against others, safety problems and workplace theft.

Purpose of Workplace Investigations

The purpose of workplace investigations 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 or significant suspension) within the requirements established by law, policy or regulation or with respect to the employer’s own liability.

Occasionally, these types of investigations can lead to a potential criminal investigation. Depending on whether the employer is federal, the District of Columbia, Virginia or involves a private employer, 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.

Duties to Cooperate

During an investigation, an investigator (often a law firm) will be hired to conduct a workplace investigation. They will review documents related to the investigation and/or interview witnesses, depending on the investigation. Employees, depending on their particular employer, may have a duty to fully cooperate with an 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. Refusing to cooperate with an investigation or providing false statements or answers during an investigation can be grounds for disciplinary action. Providing false statements, if made to a federal or other law enforcement investigator, can also subject an employee to potential criminal penalties.

Employer Risks in Not Conducting Investigations

Internal or administrative investigations can also involve risks for the employer. Inadequate workplace investigations may raise questions regarding 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.

Consider Legal Advice if Serious

Prior to providing information to an employer, depending on the severity of the issues under investigation, it can be important 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, in many circumstances, can often accompany the employee during any investigative interviews.

Our law firm represents and advises employees on employment-related matters in the District of Columbia and Virginia. 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.