Federal Employee Investigations: Complete Guide to Your Rights and Options
A federal employee investigation is a formal inquiry conducted by a government agency, Office of Inspector General (OIG), or Equal Employment Opportunity (EEO) office into allegations of workplace misconduct, illegal activities, harassment, discrimination, or policy violations. These investigations can result in disciplinary action, suspension, demotion, or termination from federal employment.
If you’re facing a federal employee investigation, understanding your rights, the interview process, and potential consequences is critical to protecting your career. The attorneys at Capovilla & Williams are experienced in federal sector employment issues, including the defense of investigations and adverse actions, as well as Merit Systems Protection Board (MSPB) appeals.
Contact us for a free consultation: Call 866-951-0466, or complete our online form.
Three Types of Federal Employee Investigations
Investigations of federal sector employees may take many forms and may be conducted by several federal entities. These types of administrative investigations include:
- Agency Internal Investigations
Most commonly, federal employees face allegations of workplace misconduct made by their employer agency. These internal agency investigations may focus on one or several instances of workplace misconduct.
- Office of Inspector General (OIG) Investigations
When allegations of illegal activities are involved, the OIG may conduct an investigation. An OIG investigation may include allegations of fraud, embezzlement, theft, or other unlawful activities.
- Equal Employment Opportunity (EEO) Investigations
When a federal sector employee is accused of discrimination or harassment, they may be the subject of an EEO investigation.
Important: Federal investigations must comply with legal requirements in 5 CFR Part 736, Subpart A. A single incident can trigger both administrative and criminal investigations simultaneously.
What If I Receive a Request for an Investigative Interview?
Many employees learn they are the subject of a federal investigation when a federal investigator contacts them. This investigator will typically request that the employee consent to an investigative interview. These interviews may be either compelled or voluntary, as indicated by the warning the investigator gives the employee. If a Garrity warning is given, employees may decline to participate, even though participation may be in their best interest. If a Kalkines warning is issued, the employee must participate; failure to do so may result in severe disciplinary action or termination. Before participating in or declining an investigative interview request, a federal employee should seek the counsel of an experienced federal employment attorney.
Understanding Garrity and Kalkines Warnings
In a federal investigation interview, the warning you receive determines your rights and tells you whether your participation in the interview is voluntary or compulsory:
Garrity Warning (Voluntary Interview)
A Garrity warning informs you that:
- You have the right to remain silent.
- You will not be disciplined for refusing to answer questions.
- Any statements you make can be used against you criminally.
- Your participation is voluntary.
What it means: Potential criminal charges are a possibility. Consult an attorney immediately before deciding whether to participate.
Kalkines Warning (Compelled Interview)
A Kalkines warning tells you that:
- You must answer questions truthfully.
- Your statements cannot be used in criminal prosecution.
- You can still face discipline, including termination, for the underlying conduct.
- Refusal to participate will result in discipline.
What it means: You must participate, but you have limited immunity from criminal prosecution. However, administrative consequences remain on the table.
Unclear or Mixed Warnings
Sometimes, investigators provide ambiguous warnings. Your attorney should demand clarification before the interview begins. The distinction between voluntary and compelled is legally significant.
What Are My Rights in a Federal Investigation?
Federal employees under investigation have specific protected rights:
Right to Legal Representation
You can consult with and be represented by an attorney at any stage of the investigation, including during interviews. An experienced federal employment attorney can attend interviews with you in some cases.
Right to Notice
You must receive adequate advance notice of interviews and allegations, giving you sufficient time to prepare and consult legal counsel.
Right to Information
You have the right to review documentation supporting allegations against you. Secret accusations from unnamed sources typically interfere with your right to defend yourself. Right to Accurate Statements
You can review, correct, and revise any written statement before signing. Never sign an inaccurate or incomplete statement, regardless of pressure or fatigue.
Right to Refuse Voluntary Interviews
If given a Garrity warning, you can decline to participate without facing discipline for refusal. However, declining may not always be in your best interest.
To summarize, federal employees under investigation have a right to information about the allegations and the right to consult an attorney before their interview. Having adequate time and information allows the employee to prepare to defend against the allegations effectively.
What Happens During a Federal Employee Investigation Interview?
Federal employee investigations vary depending on the type of investigation and the investigating Agency. Commonly, an employee will be interviewed by 1-2 investigators. These interviews will typically take place at the Agency facility or in the office of the investigating entity (such as the OIG). The interview may last hours or span multiple days, with follow-up interviews.
After the interview is complete, the investigator may ask the employee to sign an official statement summarizing the interview. Before signing this document, the employee should review and revise any version that mischaracterizes the information provided. While many employees are anxious for the interview to end, it is imperative not to leave the interview until the investigator provides a complete and accurate statement. Employees who later argue they were tired and coerced into signing an inaccurate sworn statement are rarely successful. Never sign a statement that is less than entirely accurate and complete.
Common Questions Concerning Interviews
How do I know if I am a witness or the person being investigated?
Always assume you are under investigation and use caution. The type of notice given will alert you as to the reason for the investigation.
Do I have to do the interview?
It depends on whether the interview is voluntary or compelled. But even if an interview is voluntary, it may be in your best interests to attend. Follow the counsel of an experienced federal employment attorney.
Can I refuse to answer a question?
In some instances, you may refuse to answer a question. If the interview is compelled, you must respond, but the answer cannot be used criminally. However, the information given in a compelled interview may be used to support adverse action, up to and including termination.
Can I have a lawyer with me?
You have a right to seek the advice of an attorney, and, in some instances, the attorney may attend an interview with you.
Employee Misconduct Investigations
The most common type of federal investigation is done by a federal agency in response to an allegation of employee misconduct. This type of investigation can lead to disciplinary or adverse action taken against the employee, up to and including termination.
What are the Most Common Allegations in a Misconduct Investigation?
Federal agencies may investigate allegations of employee misconduct. Misconduct is a broad concept, encompassing the following types of violations:
- Misuse of Government Property
This broad category of misconduct involves the misuse of government property, such as a computer, cellphone, or government vehicle. This type of alleged misconduct is often punished severely.
- Falsification
Federal employees prepare and sign records each day, and allegations of their falsification are taken seriously by government agencies. Any allegedly false record can trigger a federal investigation into employee misconduct.
- Discrimination or Harassment
If a federal employee is accused of harassment of another employee on the job, it may lead to a federal investigation. Likewise, any allegation of discrimination based on race, sex, age, religion, or disability may prompt an investigation.
- Insubordination/Supervisor Issues
When a federal employee refuses to follow a supervisor’s instructions or guidance, the agency may charge the employee with insubordination. However, an employee may always refuse an illegal or unethical order.
- Criminal or Unlawful Acts
If a federal sector employee is charged with any criminal or unlawful activity, it may form the basis of both a misconduct investigation and a later criminal charge.
Federal employee investigations often center on allegations of employee misconduct. Common types of alleged misconduct include misuse of government property, falsification or fraud, discrimination or harassment, insubordination, or criminal activity.
What Action Can the Agency Take After an Investigation?
Most Agency investigations involve the possibility of disciplinary or adverse action against the employee interviewed. It is vital to understand the levels of discipline and the rights associated with each level:
Disciplinary Action
Disciplinary actions for federal sector workers are lower-level disciplinary measures. Disciplinary actions of this type involve minimal loss of pay but are damaging to a career. Further, they can serve as the basis for future action under a policy of progressive discipline. Disciplinary actions include:
- Formal warnings.
- Counseling (oral or written).
- Letters of reprimand.
- Suspension of 15 days or less.
If the Agency seeks discipline greater than a 15-day suspension, it must follow adverse action procedures.
Adverse Actions
The Agency may take the following adverse actions against employees following misconduct investigations:
- Suspension
In an adverse action, the Agency may seek a suspension of 15 to 30 days.
- Reduction in Grade or Pay
For serious allegations, the Agency may seek a demotion, which typically involves a reduction in both rank and pay. This reduction in rank may include a transfer to another location or office.
- Removal (Termination)
In the most serious of cases, the Agency may seek a removal action following an investigation. If the action is successful after a hearing, the employee will be terminated from federal-sector employment.
In addition to these adverse actions, an employee may be furloughed or subject to mandatory leave during an investigation. This is a compulsory period away from work, but with the possibility of return.
In summary, a federal employee may face disciplinary or adverse action after an investigation. Disciplinary action involves a reprimand, a warning, or a suspension of 15 days or less. Adverse action may include a suspension of more than 15 days, a demotion in rank and pay, or removal from federal employment.
Federal Employee Misconduct Investigation FAQs
What if I am found guilty of misconduct after an investigation?
If the Agency finds you engaged in misconduct, it may take disciplinary or adverse action. The level of discipline will depend on the severity of the misconduct.
Will the investigation into misconduct remain on my employee’s record?
If the Agency takes disciplinary or adverse action, it will stay on your record. While the discipline may be at a lower level, such as a reprimand, it may serve as a basis for further progressive discipline.
If the investigation is unfair and inaccurate, can I appeal the results?
If the investigation is unfair, inaccurate, or abusive, you will have several opportunities to object and correct the record. Initially, make sure any sworn statement is accurate and complete. Before adverse action, you will have a chance to defend yourself during the hearing process. If serious action is taken, you will have the right to appeal to the MSPB.
Why You Need Experienced Legal Representation
Federal employee investigations are complex legal proceedings with career-ending stakes. An experienced federal employment attorney provides:
- Strategic guidance on whether to participate in voluntary interviews.
- Interview preparation to avoid common mistakes.
- Protection from investigator tactics designed to elicit damaging admissions.
- Review of proposed disciplinary actions for procedural violations.
- Negotiation to reduce or eliminate proposed discipline.
- MSPB appeal representation if adverse action is taken.
- Knowledge of federal regulations (5 CFR Parts 736, 752) that investigators must follow.
Employees without legal representation consistently receive harsher outcomes than those with experienced counsel.
Contact Capovilla & Williams for Federal Investigation Defense
The attorneys at Capovilla & Williams have extensive experience defending federal employees in investigations, adverse actions, and Merit Systems Protection Board appeals. We understand the regulations, procedures, and strategies necessary for effective defense.
Don’t face a federal investigation alone. Your career and livelihood are at stake.
Schedule your free, no-obligation consultation today:
- Call:866-951-0466
- Online form:Request a consultation
We represent federal employees nationwide in all types of workplace investigations and disciplinary proceedings.
