ERISA attorneys are experts in the rules and regulations regarding employee benefit plans. An ERISA lawyer can help an individual or corporate employer with the execution of their employee benefits packages. They can also help if that employer is involved in a criminal investigation related to ERISA.
When an employer is accused of criminal activity with regards to ERISA, it’s vital that an experienced lawyer be involved. ERISA criminal attorneys can guide you through every part of a criminal investigation. The ultimate goal is to avoid being loaded with many civil penalties or criminal charges.
How ERISA Criminal Investigations Happen
There are a number of laws, statutes, and procedures that govern the setup of ERISA-related criminal investigations.
First, ERISA states that criminal violations can be investigated by the Secretary of Labor. This individual is also responsible for detecting the violations and referring them to other courts if necessary.
ERISA also states that criminal investigations must be conducted by the Employee Benefits Security Administration through Program 52. This type of investigation heavily involves the investigation’s subject from the start. The subject will typically be informed about why the case is being opened and whether they may face criminal charges.
ESBA is required to investigate all leads and allegations in a case. Some of the relevant crimes include embezzlement from an employee benefit plan, falsification of relevant documents, illegal influence of employee benefit administration, coercion, healthcare embezzlement, falsified healthcare statements, and healthcare fraud. There are other crimes that may be investigated through ERISA as well.
Some cases may involve both criminal and civil investigations. The Regional Director in the area will determine whether the case needs to be pursued on a civil, criminal, or dual basis.
There are also rules regarding parallel civil and criminal investigations. Sometimes a civil investigation will turn up evidence indicating that a crime may have occurred. When this is the case, the Regional Director must begin a criminal investigation. The Regional Director may decide to investigate alongside the civil case, or they may open the criminal case directly after concluding the civil one.
If civil and criminal investigations occur at the same time, there are regulations regarding the investigators. Investigators will not generally be permitted to take part in both investigations, as this constitutes a conflict of interest. Every criminal investigation has duplicate documents of all the information being used in the civil investigation.
Investigators need to be honest when stating that a criminal investigation is occurring. If a subpoena is issued, the language of the subpoena must indicate that the investigation is criminal.
The US Attorney’s Office will typically be consulted early in the investigation to find out whether the office has resources to pursue the investigation. If the office is interested in the investigation, the investigator will have an ongoing consultation with the USAO.
If an investigation determines that criminal activity is involved, the investigators will consult with the USAO regarding whether they should send out grand jury subpoenas. These subpoenas are used to gain testimony and records. Grand jury investigations include the investigators, supervisors, Regional Officer, Deputy Director for Criminal Enforcement, and Regional Criminal Coordinator.
During a grand jury investigation, the investigators are prohibited from sharing certain information about the investigation. They cannot disclose any of the views of grand jury members, anything about the direction of the investigation, or anything that happened involving the grand jury.
In addition, the information provided by a criminal grand jury cannot be used in civil investigations. There is an exception to this rule if the court issues an order.
During a criminal investigation, EBSA might issue certain administrative subpoenas. The organization does not compel witnesses to testify during investigations. However, it may use subpoenas to receive documents. Witnesses may be required to testify about whether documents are authentic.
Investigators may also conduct interviews during criminal investigations. They must show their EBSA credentials and attempt to get the interviewee to cooperate voluntarily. They must inform the interviewee that they are part of a criminal investigation.
Investigators in a criminal investigation might use a search and seizure plan. The EBSA auditors may put together the paperwork, but the warrant request must be made by the AUSA or another law enforcement official.