Notice of rights in employee investigations

When a government entity collects private or confidential data from an individual about him/herself, the entity must give the individual a Tennessen warning notice.  When an entity requires an employee to give information as part of a personnel investigation, the entity must also give the employee a Garrity warning notice.

What is a Garrity warning notice?
The requirement to provide a Garrity warning notice comes from Garrity v. New Jersey, 385 U.S. 493 (1967), where the U.S. Supreme Court held that a public employee’s statement obtained under threat of discipline or termination cannot be used in subsequent criminal proceedings because that violated the employee’s Constitutional rights.  Therefore, government entities must give employees notice that their statements will not be used in criminal proceedings arising out of personnel investigations.  Garrity warning notices preserve a public employee’s right against self-incrimination while allowing government entities to require employees to cooperate with internal investigations. 

When does an entity have to give an employee a Garrity warning notice?
An entity must give employees a Garrity warning notice prior to conducting a compelled interview.  A compelled interview is one in which an employee is required to participate.

Who should receive a Garrity warning notice?
An entity must provide Garrity warning notices to both the subject of an employee investigation and any witnesses in a compelled interview.  An entity does not need to give a Garrity warning notice to a public employee asked to participate in a purely voluntary interview, because the employee is not being “compelled” to self-incriminate.   While a voluntary interview does not require a Garrity warning notice, an entity may consider giving the notice to employees to remind them of their rights.

What should a Garrity warning notice contain?
When an employee is required to take part in a compelled interview as the subject of the investigation, the warning must state that the employee:

  • Is not legally required to provide any information during the interview;
  • Could face employer-based discipline, including termination, for refusing to answer questions or otherwise failing to cooperate in the interview; and
  • Any evidence provided by the employee during the interview, or that results from the information provided by the employee during the interview, cannot be used against the employee in any subsequent criminal proceeding.
  • Should be truthful in any response given.

What notice should a government entity give when the interview is voluntary?
When employees participate in a voluntary interview and are not compelled to provide information, their statements about themselves may be used at subsequent criminal proceedings.  
An entity seeking to preserve the possibility of using statements provided at an employee interview for future criminal actions can provide the employee with written notice that the employee:

  • Is not legally required to provide any information during the interview;
  • Is under no threat of employer-based discipline for his/her decision not to cooperate;
  • Failing to provide information will result in a decision being made without the benefit of hearing the information that the employee could provide; and
  • Should be truthful in any response given.

Can a government entity provide a combined Garrity/Tennessen warning notice?
Yes.  Providing a Garrity warning notice does not fulfill a government entity’s requirement to provide a Tennessen warning notice.  In order to satisfy both requirements, the notice should be in writing, include the elements described above, and also include the following:

  • The government is collecting private data about the individual;
  • How the government plans to use the data;
  • Consequences of providing the data;
  • Consequences of not providing the data; and
  • Who may have access to the data.