Can an employee invoke their fifth Amendment rights under the US Constitution (right against self-incrimination) in the workplace where an employee is accused of some form of criminal activity and there is a possibility of referral for criminal prosecution?

The answer to that question is both yes and no depending upon who the employer is, but we’ll get to this in just a minute.

Many people think that they have absolute constitutional right to freedom of speech under the First Amendment of the Constitution. For example, if a private sector corporation fires an employee for their activity on social media sites, often people think that is a violation of the First Amendment of the US Constitution protection of freedom of expression. Likewise, in the Supreme Courts decision on the Hobby Lobby case, many people viewed the outcome as the imposition of the religious beliefs of the corporation on its employee’s, and interpreted it as a violation of the First Amendment protection of free exercise of religion.

In fact, the rights embodied in the first ten amendments of the US Constitution – The Bill of Rights – only protects individuals from actions by the Federal Government – not the actions of private individuals or corporations (The fourteenth amendment applies the protections of the first Ten Amendments (Bill of Rights) to actions by state and local governments so that citizens are protected from government at all levels).

Now if you’re the dubious kind of employee who partakes in shady acts at work, you may be SOL when it comes to protections afforded to you during an employer investigation if you happen to work for a private sector employer. Constitutional rights protect against government actions NOT against the actions of individuals or entities in the private sector. If your employer is investigating a pretty egregious action (i.e. theft) committed on your part, you can choose not to cooperate, but chances are that pleading the fifth is not going to prevent your termination or stop your employer from referring the investigation to a competent law enforcement agency.

On the other hand, public employee’s have constitutional rights that protect them from governmental actions that do not apply in a private employment situation. The public employer is treated as the government when dealing with its employees and therefore constitutional protections against governmental actions apply. A great example of a public employee pleading the fifth is Lois Lerner, the IRS director who pleaded the fifth during Congressional inquiries over the 2013 IRS scandal.

While both public and private employee’s can be forced to answer questions, or be fired, the answers of the public employee cannot be used in a criminal trial to convict the employee. The reason for that is the fifth amendment provides that government cannot force an individual to testify against him/herself in a criminal proceeding. While the government employer can force the government employee to testify against or him/herself, in an employment proceeding,the government cannot USE that same testimony in a criminal proceeding without violating the fifth amendment rights of the employee.

This doesn’t necessarily mean that a public employee is off the hook if there is independent evidence of their criminal activity (not including the forced admission). The independent evidence can still be used to prosecute and convict a public employee of criminal wrongdoing.