Legal Question in Employment Law in Florida

Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers.

This protection stems from the Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself.

Imagine a situation in which a city clerk is suspected of stealing public funds. The clerk�s supervisor and personnel director call her in to investigate the situation. To what extent can they require her to answer questions?

Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. This protection stems from the Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself.

For a public employee, the employer is the government itself. When questioned by their employer, they are being questioned by the government. Therefore, the Fifth Amendment applies to that interrogation if it is related to potentially criminal conduct.

Garrity Rights stem not just from the Fifth Amendment, but also the Fourteenth Amendment. While the Fifth Amendment could be said to apply only to the federal government, the "equal protection" clause of the Fourteenth Amendment makes the Fifth Amendment applicable to state, county, and municipal governments as well (determined by the United States Supreme Court in 1964's Malloy v. Hogan)

Garrity Rights originate from a 1967 United States Supreme Court decision, Garrity v. New Jersey. The U.S. Supreme Court then ruled in 1967�s Garrity v. New Jersey that the employees� statements, made under threat of termination, were compelled by the state in violation of the Fifth and Fourteenth Amendments. The decision asserted that �the option to lose their means of livelihood or pay the penalty of self-incrimination is the antithesis of free choice to speak or to remain silent.� Therefore, because the employees� statements were compelled, it was unconstitutional to use the statements in a prosecution.

Thus any investigation which might lead to criminal charges, almost any questioning can lead to criminal allegations, must include Garrity Rights, or the comments made by the employee cannot be used against her.