Disciplinary and Harassment Investigations

The NLRB rejected such a "blanket approach" justification. Instead, it noted that the employer had the burden "to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up." The NLRB found that the general assertion of protecting the integrity of an investigation "clearly failed to meet" that burden. The Banner case was considered by the D.C. Circuit and the Court in 2017 held that the Board's invalidation of the Confidentiality Agreement was reasonable and supported by substantial evidence. But, because the record lacked substantial evidence that Banner actually maintained a categorical investigative nondisclosure policy, the Court granted the petition for review and denied enforcement as to that portion of the Board's Order. 76 PERB relied upon the Banner Health System decision to reject a Community College District’s confidentiality directive to an employee regarding a fitness for duty examination. 77 The Los Angeles Community College District (District) advised Carlos E. Perez, an adjunct faculty member, that he would be placed on paid administrative leave while the District initiated a fitness-for-duty examination. The letter was stamped "Confidential," and stated: "You are hereby directed not to contact any members of the faculty, staff, or students." Relying on NLRB’s Banner Health System , PERB reasoned that if employees are prohibited from discussing wages, hours, and working conditions at the workplace, they are less equipped to make free and informed decisions about whether to exercise their EERA rights to form, join, or participate in a union. PERB stated that, "[i]n circumstances not present here, the employer may have the right to demand confidentiality of its investigation." It noted, however, that the employer will have the burden of establishing a legitimate justification for the prohibition, and that in this case, the District did not explain why its directive was necessary to preserve the integrity of its investigation. Therefore, PERB held that the District's directive infringed on Perez's protected rights. In a recent PERB decision 78 , PERB considered a gag order issued during a pending administrative investigation and held that it interfered with police officer and association rights. In this case, the County of Santa Clara initiated an investigation against a peace officer and the president of the Santa Clara County Correctional Peace Officers’ Association, for alleged violations of the County’s workplace communications policies. The County placed the police officer on paid administrative leave and directed him to stay off the Sheriff’s Office property. The County also ordered him not to discuss the matter “with any witnesses, potential witnesses, the complainant, or any other employee of the Sheriff’s Office other than [his] official representative.” 79 PERB concluded that the County’s gag order not only interfered both with an employee’s rights to discuss the terms and conditions of his employment with co-workers and also with the association’s right to represent its members in their employment relations with the County.

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 43