Can I plead the Fifth in a company internal investigation?
You probably already understand that only a state, local, or federal prosecutor can bring criminal charges against you, and that your employer’s attorneys or outside law firm may have the power to discipline you in the form of suspension or termination, but they cannot put you in jail. But what your employer’s lawyers can do is to report information about you – including statements you have made and your work emails and other records – to the government, which can then use that information in any way it pleases, including in preparing civil actions and/or criminal charges against you. Which raises the question of whether it is appropriate for an employee, manager, director, officer, or other individual to raise the protections of the Fifth Amendment in an internal investigation conducted by a business entity.
Why Companies Report Misconduct to the Government
It may seem counterintuitive that your employer would self-report incriminating information relating to its employees’ work on their behalf – as companies are often but not always liable for the acts of employees within the scope of employment – but such is the nature of white collar civil and criminal investigations in recent decades.
More and more, state and federal investigators incentivize companies to self-report wrongdoing by employees. Common ways in which this occurs is that prosecutors and companies will reach a deferred prosecution agreement (DPA) or non-prosecution agreement (NPA), by which the company will avoid prosecution itself by agreeing to undertake other actions, such as paying fines, instituting new procedures, and/or taking actions against individuals in the company perceived to be problematic. This is generally only done when the company makes efforts to self-report, e.g. handing over the findings of an internal investigation.
This of course can be a relatively good outcome for the company, but not for the individuals who are on the receiving end of the company’s internal actions. Furthermore, the government may bring civil and/or criminal proceedings against the individuals based on information provided by the company.
You Are Not Obligated to Incriminate Yourself
The Fifth Amendment protection against self-incrimination applies only to the government and its agents, meaning that it would only make sense for an individual to invoke his or her Fifth Amendment rights when being questioned by an agent of a state, local, or federal government.
That said, you are never obligated to respond to questions from private parties, including your supervisor, HR department, in-house counsel, or an outside law firm conducting an internal investigation. Of course, your employer is, in many cases, not obligated to continue employing if you refuse to participate in an internal investigation related to your conduct at work.
Thus, rather than invoking your Fifth Amendment right in an internal investigation where you have reason to believe negative consequences might flow from what you say, a more appropriate action is to work with an experienced white collar defense attorney who can assess your situation and help you strategize what your best options are in light of your circumstances. Those options might range from simply providing your employer with all information requested to being represented by an attorney during all questioning, and so on, but only a white collar attorney that represents you can provide you with that guidance.