An employee’s legal right to be ordered to answer questions in a internal interview under penalty of discipline if the employee refuses to do so. This order turns the statement into a compelled statement against interest which cannot be used against you in a criminal proceeding. The Supreme Court has held that if an employer orders an employee to answer a question, the employee’s answer and the “fruits” of that answer cannot be used against the employee in a subsequent criminal proceeding.
Although it is rare to find an employee charged with any criminal law violations, invoking the Garrity Right should be part of the pre-disciplinary investigation process. The Union Job Representative’s role is to ensure whenever an employee is being asked a question about alleged misconduct, the employee always solicits an order prior to “voluntarily” responding to the question(s). The first words out of an employee’s mouth should be “Am I being ordered to answer this question?” If the employee is informed that they are not being ordered to answer the question, then the employee should respectfully decline to proceed with the interview. If the employee is informed that they are required to answer the question, then the employee should cooperate fully with the investigation (the employee could be charged with insubordination if they do not answer the questions), bearing in mind that the statements made cannot be used against the employee in a criminal setting.
It is highly advisable to invoke your Weingarten Right to Union Representation and have a Representative present if you are going to invoke your Garrity Right.