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What to do when employee claims the 5th

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Q. We are a private corporation. Recently, we discovered some theft in our operation. We called an employee in for an investigatory interview. He claimed to have consulted with an attorney and refused to answer our questions on the grounds that he could not be forced to incriminate himself under the 5th Amendment of the U.S. Constitution. What are our choices under such circumstances?

A. The Bill of Rights to the Constitution protects citizens from their government. The 5th Amendment protection against self-incrimination is to prevent the government (law enforcement and prosecutors) from coercing information from its citizens, who are presumed innocent until proven guilty.

The amendments are not applicable to protect one citizen (including a corporation) from another—only the government. Furthermore, employees have a duty to cooperate in any lawful company investigation.

Therefore, you can terminate an employee who refuses to answer questions based on the 5th Amendment or any other reasons. It is advisable, in such a situation, to explain to the employee that the consequence of refusing to answer and failing to cooperate with the investigation will be termination.

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