A quick glance at the hearing schedules of the Senate HELP Committee and the House of Representatives Committee on Education and the Workforce should alert employers to one thing: Congress is interested in them. The Senate HELP Committee recently held hearings to address union organizing campaigns and the costs of COVID-19 vaccines, while proceedings in the House focused on these topics as well as skills development and the impact of visa programs on workers. Even more investigative activity happens outside of the hearing room. For example Senators Sherrod Brown and Elizabeth Warren launched an "investigation" into concerns of misclassification under the FLSA, with particular focus on the food service industry.
As the election cycle accelerates and candidates look to polish their signature issues, we expect congressional interest in employers to grow. While the public's attention may focus on high-profile confirmation hearings and – recently – on the aftermath of the 2020 election, Congress uses its investigative power to look into a number of key aspects of our society and economy. Employers of all sizes and types can find themselves recipients of requests for documents and information; invitations for in-office interviews and testimony at hearings; and in some rare cases, subpoenas.
Whether (yes, in many instances, businesses will actually have a choice) and how to answer will depend on a number of considerations.
Since our nation's founding, the power to investigate has been recognized as an inherent part of Congress's legislative power, and while not unlimited, that power is quite broad. It ties directly into Congress's key legislative and budgetary roles, which lead Congress to use investigations to achieve a broad range of goals, including:
- assessing the effectiveness of existing laws;
- exercising oversight over the Executive Branch in its implementation of Congress's laws;
- determining the content and structure of potential legislation; and
- (perhaps not what the framers had in mind) amplifying political messages of interest to individual members of Congress and the public.
How Congress Exercises Its Investigatory Power//How to Respond
Congress has the power to issue subpoenas; it infrequently needs to do so. Instead, members of Congress seek voluntary compliance with either requests to produce documents and information and/or requests to testify before relevant committees of either the Senate or the House. Experience has taught that most recipients of congressional requests for information will, in fact, substantially comply.
Do you have to? No.
Will you decide you should? Probably.
It's uncomfortable to say no to the government. Happens all the time on cop shows – not so much in real life. More importantly, companies – together with counsel – need to understand the chess match to which they've been invited and consider the risks and benefits of compliance. Short-term comfort can buy a world of hurt down the line. Intransigence can invite embarrassment in short order.
General Considerations When Responding to a Request for Information
- How might disclosure of the requested information affect the
company:
- Will it embarrass the company?
- Will it incriminate the company?
- Could it actually make the company look good?
- How will non-disclosure affect the Company?
- Will the congressional office use press releases to make the company look bad?
- Will Congress reveal the Company's non-cooperation during a hearing attended by press?
- Will the Company lose a helpful opportunity to tell it's story?
- If subpoenaed, does the Company have a legal basis to challenge the subpoena?
Perhaps the most important thing to understand about information given to Congress is that no matter the terms under which information is shared, the risk of information either being leaked to media or shared with enforcement agencies is always present. For this reason, decisions about whether and how to respond need to be made with great care. While the most important goal is to "do no harm," it is also important to consider whether the request is actually an opportunity for a company to tell a helpful story, whether directly to the congressional requestor or in parallel to friendly media or some other sympathetic audience. The considerations for which an employer receiving a congressional request for information are myriad, fluid, and nuanced. Outside counsel experienced in providing support throughout the process of (a) assessing the request, (b) deciding whether to respond, and (c) formulating the response, can prove invaluable. With that in mind, here is a framework to begin thinking through the considerations that are most relevant.
Request for Documents
Requests for documents are Congress's most commonly-used investigatory tool – and are invariably the most intrusive. In addition to documents of general applicability, congressional offices will ask for detailed records concerning a company's activities. They may also ask for companies to generate data about particular matters of interest to the congressional office or to a particular Committee.
Responses to congressional requests for information – and subpoenas – have much in common with discovery in litigation. There are privileges and objections that can be invoked, as well as opportunities to negotiate the scope and timing of production. The difference is that documents and information are being produced into a political environment that for the most part does not have the guardrails of judicial proceedings. This creates potentially-serious hazards for parties producing information. Confidentiality of documents can be negotiated; however, there always remains a very serious risk that confidentiality could be breached. Materials can be leaked to the media, to law enforcement agencies, and/or to interested organizations.
Testimonial Evidence: Committee Hearings and Other Methods of Taking Statements
The most dramatic element of congressional investigations are Committee hearings. Witnesses can be called by both the majority and minority of each chamber of Congress. Witnesses are generally called based on their expertise or their personal and/or professional experience with the subject matter of the hearing. The titles of hearings often reflect the perspective of the majority party on the issue to be considered in the hearing. Witnesses are afforded an opportunity to submit written testimony in advance of the hearing. Once at the hearing, witnesses are sworn in and afforded an opportunity to deliver an oral opening statement, generally limited to five minutes. Some witnesses may read directly from their written testimony. Others may use the opportunity to offer additional perspective not already contained in their written testimony.
The majority member and the ranking member are each given an opportunity to offer their own opening statements; various members of the Committee may also be offered the floor for statements. Questioning then begins in rounds of five minutes for each Committee member, until the members no longer have questions. Members have different approaches to questioning, and some may use a large portion of their time to comment on the subject matter of the hearing, rather than to directly question the witness. Questions may be formulated in the following ways:
- Open-ended questions to elicit information of interest to the member;
- Leading questions to elicit an admission from the witness;
- Trap questions leaving the witness with only two equally damaging answer choices;
- Accusatory questions meant primarily to display the member's indignation about a particular matter; and/or
- Questions with long preambles concerning the member's views on a particular topics.
From a witness' perspective, the first objective should always be to tell the truth. At the same time, a witness may wish to avoid testimony that could be misconstrued and/or distorted. For this reason, many witnesses, especially Executive branch witnesses, approach hearings with a "get in/get out" mentality. While witnesses will want to avoid unnecessarily-damaging testimony, witnesses should recognize that hearings can also be an opportunity to make points that are helpful to their agendas. Witnesses may wish to come to hearing with well-crafted talking points that they can insert into testimony when the opportunity arises.
Congress also can pursue methods of investigation that the public will not generally see. Congressional committees can order a person to take depositions. Offices may invite individuals for interviews that are later placed on the record. Congressional committees conduct field hearings where they travel to a particular site that is the locus of the issue they are trying to investigate. Field hearings are more likely to be used for honest fact-finding because they occur away from the political "stage."
If You are Invited or Subpoenaed
As Congress delves into issues ranging from worker misclassification, to union organizing, to immigration, representatives of companies invited or subpoenaed to provide evidence to a congressional committee should carefully consider the risk of providing such evidence, and the opportunities that such an invitation may bring. They should consult with counsel experienced with the congressional investigative process. As previously noted, the process is a political one which can result in both legal and reputational harm to a company, and for this reason, should always be approached with great caution. Choosing knowledgeable guides – like the authors – can turn political minefields into positive opportunities for witnesses and their companies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
