Shhh!/What You Say Now Can Hurt You Later

摘要

While watching various television programs, we have all probably heard these familiar words: "You have the right to remain silent. What you say can and will be used against you in a court of law. You [also] have the right to an attorney." These warnings, called "Miranda rights" in criminal cases, are not offered to companies during civil investigations by agencies such as the Equal Employment Opportunity Commission (EEOC). During such investigations, companies do not have Miranda rights. Whatever the company says, or does not say, during an investigation can and will be used against it later in front of a judge or jury. Recent court cases have made it easy for employees to get their cases in front of juries rather than dismissed before trial. Most significantly, employees have been able to obtain substantial verdicts or overturn pre-trial dismissals based on what a company said, or did not say, in a position statement or other preliminary responses to agency complaints. Companies, particularly those without large legal and human resources departments, may pay a hefty price during litigation if they do not consider the impact of initial responses.