The OIG notified the National Office of a revision in policy regarding the administrative warnings that will be given to Mail Handlers during investigations.

Warnings for Employees Under Investigation

In July 2005, the Office of Inspector General (OIG) advised the NPMHU that it will be revising the administrative warnings given to mail handlers and other postal employees during all employee investigations. (Earlier, as previously reported, the OIG assumed many of the prior duties of the Postal Inspection Service in this area.) In order to better understand the warnings that will be developed, this section briefly analyzes the protections afforded to employees in the course of these investigations.

Most mail handlers are familiar with the Weingarten rule - under which employees have the right to request assistance from union representatives during investigatory interviews - and the Miranda rule - under which an employee in custody must be told of certain protections before any questioning begins. Employees also have protection from having to choose between cooperating with an internal investigation and making potentially incriminating statements - that is, statements which can later be used against that employee in a criminal proceeding. The Supreme Court has described such a choice as "coercion," which is impermissible. Put simply, the government or Postal Service cannot force a public employee, including a mail handler, to cooperate in an investigation - that is, the Postal Service cannot threaten to fire the employee for his or her failure to cooperate - unless the government or Postal Service advises the employee that the statements made during the course of the investigation will not be used against him or her in criminal proceedings.

These protections arise in two distinct ways. First, under the so-called Garrity rule, public employees are given the following warnings: (i) that "anything you say or do may be used as evidence in both an administrative proceeding, and any future criminal proceedings involving you;" (ii) that "if you refuse to answer the questions posed to you on the ground that the answers may tend to incriminate you, you cannot be discharged solely for remaining silent;" and (iii) that the "interview is strictly voluntary and you may leave at any time." When these warnings are given, there is no "coercion," because the employee - who can leave at any time and will not be fired for failing to answer - has not been forced to choose between work and giving up his or her constitutional protections. Accordingly, in such a circumstance, the employee should think carefully before answering any questions, as the answers may be used in a later criminal proceeding.

Under the related Kalkines rule, the government or Postal Service addresses the "coercion" issue by notifying the employee that any answers cannot be used in a later criminal proceeding but that the failure to cooperate in the investigation can lead to termination. Accordingly, a typical Kalkines warning includes the following: (i) "you have a duty to reply to these questions, and disciplinary proceedings resulting in your discharge may be initiated as a result of your answers;" and (ii) "neither your answers nor any information or evidence which are gained by reason of such statements can be used against you in criminal proceedings."

In order to understand which rule - Garrity or Kalkines - applies, an employee must know the answer to two questions: (i) is the employee being forced to answer - that is, can he or she be subject to termination for refusing to answer; and (ii) can the statements be used in a later criminal proceeding. If the answer to question 1 is no, then the employee should think carefully before participating, because any statements can be used in a subsequent criminal proceeding. If the answer to question 2 is no, then an employee must participate in the investigation or else risk termination for failure to cooperate in an investigation.

The NPMHU is working with the OIG to ensure that the new warnings to be developed will make these distinctions clear. We will be circulating more information about the specific warnings to be given by the OIG in the coming weeks.