In Garrity vs. New Jersey (1966), the United States Supreme Court ruled that public employees could not be forced, under clear threat of discipline, to violate the principles of compulsory self-incrimination. This decision established what have come to be called “Garrity Rights” for public employees.
If a public employee is ordered to answer questions by their employer under the threat of discipline about a potential criminal matter, they are making statements under duress. Law enforcement, to further investigation or gather evidence to be used in a criminal investigation, cannot use statements made under these conditions.
This rule is similar to Miranda Rights for public employees, however the burden is on the employee to assert their Garrity Rights. These rights can and should be asserted whenever an employee believes they are being investigated for possible criminal conduct. Once an employee has asserted their Garrity Rights management must:
- Give a direct order to answer the question;
- Make the question specific, directly and narrowly related to the employee’s duty or fitness for duty;
- Advise the employee that the answers will not and cannot be used against him/her in a criminal proceeding, nor the fruits of those proceedings; and
- Allow union representation if the employee also asserts their Weingarten Rights.
To ensure that your Garrity Rights are protected, you should ask the following questions:
- If I refuse to talk, can I be disciplined for the refusal?
- Can that discipline include termination from employment?
- Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?
Should you be in a situation where Garrity Rights are needed, understand that the employer will most likely never heard of Garrity Rights and their meaning. Don’t be surprised or angry with this, it is just not that common. A simple explanation that you understand that the employer has a right to investigate the matter, but that you also have a Fifth Amendment right against self-incrimination should clear the way for meaningful dialog. These two rights can co-exist. In many cases you may not even be aware of whatever crime or problem they are talking about, and even if you are aware of it, you also know you did not do it.
Don’t fall into the trap of talking too much just to make the employer happy. Be cautious, exercise your rights and seek legal advice.
Your employer may say that if you confess or admit to the crime or tell them who is responsible, they won’t prosecute you. However, your employer does not have the final authority to determine that; it is up to law enforcement and the court system. Please be cautious in your statements during interviews and help keep your co-workers advised of their rights.
Click here for a document with a simplified Garrity Rights overview.
