How to deal with staff if the feds come probing
Search warrant does not compel interviews
If federal or state agents show up at your office with a search warrant or request for records as part of a fraud and abuse investigation, remember that the warrant does not allow them to interrogate office employees.
"This does not mean that the agents will refrain from trying to interrogate the people on the premises," says Philip L. Pomerance, a health care lawyer with the Chicago firm of Hinshaw & Culbertson. "The agents executing the warrant will use the fear, shock, and confusion engendered by the search to talk with as many people at the site as possible."
In turn, he recommends asking the agent in charge to instruct his or her people not to talk to your employees. If the agents continue in attempts to interrogate the staff, continue stating your objection.
If you have not already done so, advise employees that they may, if they choose, refuse to answer all questions directed to them. Do not direct the employees not to answer; the investigators may construe that as obstructing justice or even witness tampering.
Explain to the employees that they have a choice whether they will answer any questions, both during the search and subsequently. Object strenuously if an agent intimidates anyone. If employees agree to be interviewed, you should insist that your lawyer be present during the interview. Record the interview, if possible.
Quietly — and as quickly as possible — send all nonessential employees home. Advise the agent in charge that you are sending the employees home for the day.
"In rare instances, you may want to stay open the rest of the day, but it is generally better to close during a search," says Pomerance.
Keeping some employees on the site may be valuable to help agents obtain computer information and other documents that are the subject of the search without risking damage to your property.
"Make it clear to the agent in charge that you are not consenting to the search, but that the employees are here to ease the disruption and damage to your business caused by the search," says Pomerance. "Then send all remaining employees home."
The agent in charge has no authority to detain the employees. The agent in charge may ask for a list of the employees’ names, addresses and phone numbers. You are not required to produce this information, but the investigators will undoubtedly discover it during the search, so providing this information does little damage and may reduce employee contact with the agents.
Remember that because most employees will be confused or even afraid, you should reassure them that business will continue as usual. Also, talk with your lawyer about how to best educate employees about the allegations being brought.
"Clients often are very resistant to educating their staff about the nature of the investigation. However, I believe that it is far better for an employee to learn about the search from a supervisor or co-worker than to receive information by watching the 10 p.m. news," says Pomerance.
You may also get questions from employees about their need to hire a lawyer. "You must talk with your attorney about the right of employees to individual counsel — and whether the practice should pay for it— as soon as practical," says Pomerance.
"Remember that the investigators may contact key employees right after the search while the shock is still fresh. In turn, you may want to advise employees of their ability to retain counsel before an agent knocks on their door. Finally, make certain that no employee attempts to remove company property from the search scene, or to destroy or hide any property or materials."
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