As union representation of public employees erodes in Wisconsin, it becomes even more imperative that public employees understand their workplace rights. This is especially true for employees who have been accused of conduct that is alleged to be a violation of both a work rule and criminal law. What can be direr than the possibility of losing your job and potentially facing the loss of liberty?

Garrity Protects Public Employees from Forced Self-Incrimination

Fortunately, both the United States and Wisconsin Constitutions protect a public employee from being forced to incriminate him or herself during an employment investigation.  This protection is frequently referred to as “Garrity,” which refers to a 1967 United States Supreme Court case that held a public employer cannot threaten to terminate an employee as a way of compelling the employee to provide information that can be used against them in a criminal prosecution. As stated by the United States Supreme Court: “The option to lose [one’s] means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent….” At the heart of the protection is the Fifth Amendment to the United States Constitution, which provides that the government cannot compel a person to be a witness against him or herself.

Garrity Precludes Certain Statements from Being Used Against You

What is the remedy for an employee whose employer threatens termination if an employee does not “cooperate” with the employer’s investigation into potentially criminal conduct? Suppression of evidence. A statement, as well as any evidence discovered as a result of the statement, is inadmissible if obtained through coercing the employee with threat of termination of their position. However, these cases are very fact-intensive, and in order to suppress such statements, a public employee needs the assistance of skilled lawyers familiar with representing public employees and the practice of criminal law. Protecting these rights starts during the investigatory process, as an attorney can trigger the requirements of the Garrity protection, including confirming a true threat of severe disciplinary action, usually termination, if the employee refuses to provide information. It is important to note that if you refuse to cooperate or provide accurate information when you are informed that severe consequences, up to termination, will result, your employer can use that against you in its disciplinary decision.

A Skilled Attorney Can Protect Your Garrity Rights

The public employer is still the government, and the constitutional rights provided to public employees remain despite the recent attacks on public employees. If you are a public employee being investigated for a potential work rule violation, it is important to obtain legal help to protect and preserve your rights. If you are being investigated for a crime, contact Hawks Quindel for the zealous, skilled representation every citizen deserves when interacting with a government body that has the ability to take your property, or worse, your liberty.


*Attorney Nicholas Fairweather was a contributing author of this post.

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