EDUCATORS EMPLOYMENT RIGHTS - GARRITY RIGHTS

EDUCATORS EMPLOYMENT RIGHTS

What are Garrity Rights?

Public employees have certain constitutional rights that apply in their employment that may not apply to private employees. For example, in Garrity v. New Jersey 385 U.S. 493 (1967), the Supreme Court held that statements obtained in the course of an investigatory interview under threat of termination from public employment could not be used as evidence against the employee in subsequent criminal proceedings. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to the imposition of discipline for insubordination. Further, while the statements you make may not be used against you in a subsequent criminal proceeding, they can still form the basis for discipline on the underlying work-related charge.

The Garrity Warning was thus established: An employee statement obtained under threat of removal from office cannot be used in subsequent criminal proceedings.

The Garrity rule does not give protection from being prosecuted with a crime: only that the information you give and your statements will not be used against you. You can still be forced to answer (or disciplined for refusing to answer) questions about most misconduct at work – this protection is only for questions about criminal behavior.

To ensure that your Garrity rights are protected, you should ask the following question in an investigatory interview and make sure you invoke your Weingarten rights by having a union representative present during any questioning:

• Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?If you are asked to provide a written statement regarding the subject of the interview, the following statement should be included in your report:

• “It is my understanding that this report is made for internal administrative purposes only. This report is made by me after being ordered to do so by my supervisor. It is my understanding that refusing to provide this report could result in my being disciplined for insubordination up to and including termination of employment. This report is made pursuant to that order and the potential discipline that could result for failing to provide this report.”

How Garrity Protection Works:

• You should invoke your Weingarten rights and ask for a union representative to be present before any investigatory interview that you reasonably believe may result in discipline.

• Your answers can be used to discipline you, in a civil (not criminal) suit against you, and to charge other people with a crime.

• You have to say that you want Garrity protection.

• If possible, you should get your Garrity protection in writing before answering questions.

• After your boss agrees not to use your answers for a criminal prosecution, you can be threatened with discipline (up to dismissal) for refusing to answer.