Do I Have to Participate in an Investigation? Employee Obligations in Workplace Investigations

Introduction

When allegations of workplace misconduct arise, employers face both a legal obligation and a practical necessity to investigate thoroughly. Yet employers sometimes encounter a significant complication: employees—whether the subject of the investigation, a witness, or a potential corroborating source—who simply refuse to participate.

Non-cooperation takes many forms. An accused employee may decline to submit to an interview. A witness may claim ignorance, demand that the investigation stop, or threaten legal action if questioned. A complainant may recant or refuse to cooperate with an investigation. In each scenario, the employer faces the same core questions: Can we require this person to cooperate? If the person refuses, is that refusal itself a disciplinable offense? And can discipline include termination?

The answers depend on the employment relationship, the nature of the investigation, the statutory context, and the employer's own policies. This article addresses these questions primarily for private-sector businesses and ministries, with brief notes on distinct frameworks for unionized workplaces, public-sector employees, and educational institutions subject to Title IX.

The Baseline Rule: A Duty to Cooperate

Whether under at-will employment principles, contractual workplace rules, or ordinary standards of employee conduct, employers may generally require employees to cooperate with workplace investigations. Refusing to comply with a reasonable, work-related directive—including a directive to submit to an interview or provide information—could be insubordination, which is a classic lawful basis for discipline or termination. But there are possible exceptions.

To be "lawful," an investigation must have a legitimate business purpose, must be conducted in a manner that does not itself violate the law, and must not compel the employee to engage in unlawful conduct or waive statutory rights. Subject to those constraints, the instruction to cooperate is a lawful workplace directive like any other.

What does cooperation mean? At minimum, it means appearing for a scheduled interview and responding to questions. It does not mean agreeing with someone else's characterization of events, affirming the allegations, or saying anything except what the employee believes to be true. An employee who attends an interview, even if he or she declines to answer particular questions on stated grounds or does not agree with other witnesses, is very different from an employee who refuses to appear at all.

Refusal as Independent Misconduct

When an employee refuses to cooperate without a solid legal reason, that refusal is independently disciplinable—separate and apart from any underlying misconduct that prompted the investigation, and whether or not the employee is the person accused.

The logic is straightforward: if an employer cannot compel employees to participate in investigations, the entire investigative apparatus—including the legal defenses it supports—collapses. For example, an employer's ability to establish an affirmative defense to Title VII supervisory harassment claims depends on demonstrating that it exercised reasonable care to prevent and promptly correct harassment, and that the employee unreasonably failed to take advantage of corrective opportunities. That defense requires a functioning investigation, which in turn requires actual participation.

In another example, if the complaint is an abuse or harassment claim, the organization cannot engage in adequate safeguarding of children or other employees unless it can investigate adequately. Without a complete investigation, the employer might fail in a key function of its mission.

Non-cooperation is not a neutral act. It deprives the organization of information it needs, may impair its ability to protect other employees, and undermines the credibility of its anti-harassment and anti-misconduct programs. Employers should treat investigative refusal as a serious disciplinary matter and document it accordingly. A couple of examples of how this has played out may be helpful.

One case, Gilman v. Marsh & McLennan Cos.,¹ involved a company that was facing some serious trouble. The New York state Attorney General had opened an investigation into some unsavory business practices involving the company. At that point, the company retained outside counsel to conduct an internal investigation into the AG's allegations. Several months later, the AG's investigation became more serious, and ultimately, the AG filed a civil complaint against the company for alleged fraudulent business practices and antitrust violations.

In light of these serious allegations, the company expanded its investigation and suspended two employees who had been identified during the AG's investigation as co-conspirators in the illegal activity. Given that the stakes had been raised, the company's counsel asked the two employees to sit for interviews and explained that if they refused, they would be fired. One employee simply refused; the company fired him the next day. The other employee submitted paperwork attempting to retire and refused to be interviewed. The company refused to accept the resignation/retirement and fired that employee as well.

Both the employees in question were eligible for "valuable employment benefits." These included stock options, stock bonus units, deferred stock units, and severance plans, all of which were only available so long as the employees were not terminated for cause. The company took the position that the employees had been terminated for cause and denied them these benefits. The employees brought a claim against the company, claiming entitlement to these benefits.

The appellate court ultimately ruled that the company was well within its right to fire the employees for cause and thus owed them nothing. Central to the court's decision was that the request to sit for an interview as part of the investigation was reasonable. The employees could have been fired simply because of the (very serious) allegations of criminal conduct. And the company was facing serious liability for its employees' alleged criminal acts, so demanding that the employees answer questions about that alleged misconduct was well within the company's right. The court also noted that an employee can't avoid termination for violating a reasonable order of an employer by trying to quit or retire. To allow such a practice would allow employees to preempt and avoid for cause termination for cause altogether (as long as they acted fast enough).

In another case, Kama v. Mayorkas,² a Transportation Security Administration  officer refused to answer certain questions or produce documents during a misconduct investigation of his possible criminal misconduct related to a compensation scheme. He was warned that he might be terminated for failure to cooperate, which then happened. He sued for retaliation related to his prior discrimination complaints. Because it had been five months since his prior complaints, and he conceded that he had refused to respond to some of the inquiries, the court upheld his termination. (In this case, while he didn't completely refuse to cooperate with the investigation, the court noted that because of TSA's national security responsibilities, it had a wider latitude to carry out its internal investigations.)

Can an employer terminate for refusal to cooperate? The general answer is yes—with some limitations. Several categories of legal protection may shield a refusal from discipline, and there may be moral and practical considerations as well.

The "Fear of Retaliation" Problem

The legal complication most likely to arise in investigations stemming from harassment or discrimination complaints is the anti-retaliation provisions of Title VII and related statutes. Anti-retaliation provisions cover any employer action that would be "materially adverse" to a reasonable employee—broadly defined as conduct that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination."³ This standard is not limited to ultimate employment decisions like termination or demotion.

This problem arises when an employee refuses to participate in an investigation involving a complaint they previously made or in which they are a potential victim or adverse witness. Commonly, the employee fears that participating will expose the employee to adverse action from the employer, the subject of the complaint, or both. If the employee is then terminated for non-participation, he or she may argue that this was retaliation for a protected activity.

In one case, Harris v. Fulton-DeKalb,⁴ an employee experienced discrimination and sexual harassment. Later, another employee filed a lawsuit against the company. The first employee refused to answer questions, both to defense counsel and to an independent law firm hired to investigate. She was told to either cooperate or be terminated (or resign). She made her own accusations but still refused to cooperate and was terminated. While she argued that her refusal to provide information was statutorily protected under anti-retaliation provisions, the higher court disagreed. Anti-retaliation is not a license for insubordination.  (The court noted that there would be an exception if the employee was being pressured to give false testimony.)

However, the risk here would be that the employee alleges that he or she is really being fired for another reason, and the failure to cooperate was simply a pretext. Practically, this creates a trap for the unwary employer. Investigate aggressively, and the complainant who refuses to re-engage may later claim that being pressed to participate was itself retaliatory. Terminate for refusal, and the employee may claim the termination was retaliation for the original protected complaint. The employer's best defense in both directions is documentation: document why the interview was necessary, what safeguards were offered, how the employee's refusal was addressed, and why the termination (if any) was based on the refusal itself and not the underlying complaint.

The employer can take several practical steps to create clarity in this situation.

• Create separation. The investigator should be different from the person who addresses the employee's refusal to cooperate. Conflating the two roles may create the appearance that the refusal-based discipline is connected to the original complaint.
• Ask why. Before treating silence as defiance, ask the employee (in writing, and with an explicit invitation to respond) what concerns he or she has about participating. This both creates a record and may surface legitimate legal issues—a fear of retaliation from the accused, a pending criminal matter, a medical concern—that should be addressed.
• Consider alternatives. Can the employee's concerns be addressed? For instance, the employee may want a support person or an attorney. Or the employee might do better with a neutral third-party investigator. Document the offer and the response.
• Consider trauma. If an employee is suffering from trauma or mental health issues, there may be serious concerns with going forward. It may be necessary to have a therapist evaluate the employee's situation and whether the employee can safely be interviewed.
• Set expectations with complainants. If the employee is a complainant, explain that allegations may not be able to be substantiated without the employee's participation. Simply making allegations does not create findings.
• Confirm legal exposure. Get legal counsel to make sure that requiring participation will not violate whistleblower or anti-retaliation statutes.

What About Criminal Proceedings?

Sometimes, the subject of an internal investigation faces the possibility of criminal prosecution for the same conduct. In the purely private-sector context, the Fifth Amendment does not directly apply. The Constitution's protections against compelled self-incrimination run against government actors, not private employers. A private employee who invokes the Fifth Amendment as a basis for refusing to cooperate with an internal investigation has no constitutional right to do so, and the employer may lawfully discipline or terminate the employee for the refusal.

However, if there is genuine criminal exposure—because the employer has already contacted law enforcement, law enforcement is independently investigating, or the conduct at issue is inherently criminal—the employee's legal counsel will almost certainly advise silence. An employer who forces the issue of investigating risks having the employer's investigation later characterized as an arm of a governmental investigation. Where a parallel criminal proceeding is in play, employers should consult with counsel before compelling participation, consider whether the investigation can proceed around the gap (using documents, other witnesses, and circumstantial evidence), and evaluate whether proceeding despite the refusal creates more risk than it resolves.

For public-sector employers, the analysis is different and is governed by Garrity v. New Jersey, 385 U.S. 493 (1967). Under Garrity, statements compelled from a public employee under threat of termination cannot be used against that employee in a subsequent criminal proceeding. A public employer may still require a public employee to answer job-performance questions and may discipline or terminate for refusal—but only if the employer makes clear that the compelled answers will not be used in a criminal case. This standard is nuanced, and counsel should be involved in the analysis.

ADA and FMLA Concerns

An employee who refuses to participate in an interview while on medical leave—or whose refusal is connected to a disability—presents a different risk. Under the Family Medical Leave Act, requiring an employee to appear for a workplace misconduct investigation during FMLA-protected leave could potentially interfere with FMLA rights. The key is for the employer to follow standard procedure for investigations, keep the contact as brief and painless as possible, and compensate the employee for the time. Consider deferring the interview until the employee returns from protected leave, if the investigation can accommodate the delay.

Under the Americans with Disabilities Act, an employee whose refusal to participate is connected to a disability (for example, a severe anxiety disorder triggered by confrontational interviews) may be entitled to a reasonable accommodation before the employer escalates to discipline. That accommodation might include allowing the employee to submit written responses (if the employee is not a central witness), be interviewed in a less formal setting, or have a support person such as a therapist present. The employer is not required to abandon the investigation, but it should engage in the interactive process before concluding that refusal is unexcused.

Unionized Employees

Union employees have the right, established in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), to request union representation at an investigatory interview that the employee reasonably believes may result in discipline. The employee does not have the right to refuse to participate in the interview, only to have a representative present. An employer who denies a timely, proper Weingarten request commits an unfair labor practice, but the remedy for that violation does not transform the employee's underlying refusal to cooperate into protected conduct.

Even in non-union workplaces, the National Labor Relations Act may protect certain concerted employee activity related to workplace conditions, including some discussions surrounding investigations.

Title IX Considerations

Title IX regulations have, at various times, expressly prohibited retaliation against individuals for refusing to participate in Title IX proceedings. Because the governing regulations have undergone significant recent revision and litigation, educational institutions should consult current law and work with counsel before disciplining a student or employee based solely on non-participation in a Title IX matter.

Review State Law

State law may provide additional protections that limit an employer's ability to discipline for investigative non-cooperation. State whistleblower statutes, state anti-retaliation protections and state public policy exceptions could all be broader than their federal counterparts. The analysis varies significantly by jurisdiction.

Best Practices

Written Policy. Have a written policy in place that requires cooperation in workplace investigations explicitly. This includes appearing for interviews, answering questions truthfully, and producing requested documents. The policy should warn that failure to cooperate may result in discipline up to and including termination. Providing false or misleading information would also be grounds for termination. Employees should acknowledge receipt of the policy.

Non-Retaliation Policy. The organization's written non-retaliation policy should also be robust. In addition, investigators should clarify to all witnesses that retaliation will not be tolerated, and should be reported as soon as possible, either to the investigator or to a trusted leader.

Address Concerns. If someone is concerned about being a witness, take time to hear and address concerns. There may be options short of a refusal to participate. For example, if someone wants a support person, therapist, or legal counsel present, consider allowing it. (Employers are not usually required to permit counsel in private workplace interviews, and third parties present can compromise confidentiality, but the benefits may outweigh the detriment in some situations.) Consider ways to make the interview trauma-informed and to support someone who is nervous. Conduct the investigation in a "safe" area, perhaps off-premises, where other employees will not know who is being interviewed. Consider whether a third-party investigator needs to be brought in.

Warn before disciplining. If you may discipline or terminate someone for not cooperating, be sure to give a clear warning and opportunity to reconsider. For a person accused, clarify that without their testimony, the allegations against them could be unrebutted, and the investigator may have to make findings based on the available evidence. For a complainant, clarify that it may not be possible to substantiate allegations without their participation.

Document everything. Document all steps of the situation carefully. What did the employee say or do? What steps were taken in communication? Document all efforts made to address the employee's concerns. Be precise and complete.

Consult counsel. Consult counsel before disciplining someone for not participating in an investigation, particularly when the underlying investigation involves harassment, discrimination, or safety complaints. Make sure that the refusal to cooperate is not legally protected.

Communicate in writing. Communicate with the employee in writing, but work with counsel to avoid any statements that could be construed as threats, harassment, or coercion. If the person has counsel, route communications through their counsel. Don't engage in any unofficial side communications, such as texting.

Consider proceeding without the witness. Consider whether the investigation can go forward without the person. Other witnesses, documents, electronic records, and circumstantial evidence may provide a sufficient basis for a finding even without the refusing employee's account. An incomplete investigation is not necessarily an inadequate one. A court evaluating the employer's response will consider the overall reasonableness of the investigative effort, including the employer's response to the obstacle the refusing employee created.

Conclusion

The obligation to cooperate in a workplace investigation is real, and the consequences of non-cooperation can be severe, including termination for cause. But that obligation is not absolute, and the legal landscape surrounding investigative refusals is complex enough that a reflexive "fire them" response could be wrong and sometimes catastrophically so.

Employers who approach investigative non-cooperation carefully can create a defensible position. This starts with written policies. Employers should engage thoughtfully with the employee's stated concerns, offer reasonable alternatives, consult counsel before disciplining in legally sensitive situations, and document everything. They should take particular care to address trauma sensitively.

The investigation itself, and how it is handled, is increasingly the focus of litigation over workplace misconduct. How an employer responds when an employee refuses to cooperate is one of the clearest signals of whether the organization takes its investigative obligations seriously. Getting it right requires both legal awareness and institutional commitment.

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¹ No. 15-0603 (2d Cir. 2016); found at https://law.justia.com/cases/federal/appellate-courts/ca2/15-0603/15-0603-2016-06-16.html

² No. 23-55106 (9th Cir. 2024); found at: https://law.justia.com/cases/federal/appellate-courts/ca9/23-55106/23-55106-2024-07-18.html

³ Burlington Northern & Sante Fe Railway Company v. White, 548 U.S. 53 (2006).

⁴ 255 F. Supp. 2d 1347 (N.D. Ga 2002); found at: https://law.justia.com/cases/federal/district-courts/FSupp2/255/1347/2562634/