Disciplinary and Harassment Investigations

v. Admonition That Refusal to Cooperate Constitutes Insubordination and May Subject Him or Her to Discipline Employees, generally, do not have a right to refuse to cooperate or answer questions in an investigatory interview. Accordingly, such refusal can be grounds for insubordination resulting in discipline, including discharge. (a) Insubordination Insubordination exists when an employee refuses to obey an order which a superior is entitled both to give and to have obeyed. For an employee to be insubordinate, the following elements must be present:



An order must be given;

 The order must be lawful and not cause an unreasonable safety risk;

 The order must be clearly communicated to the employee;

 The order must be communicated by someone with the proper authority to give the order;

 The employee must have understood the order; and

 The employee must have intentionally or willfully refused to comply with the order.

Because the order must be given by someone with the proper authority, the order must be given by either the employee’s supervisor or someone else in the chain of command with the proper authority. Outside investigators do not hold such authority. Therefore, if an outside investigator is conducting the interviews, someone from within the agency holding the proper authority must give the order. This can be done through a pre-interview memorandum given to the employee(s) to be interviewed by the appropriate person. The memorandum should inform him/her of the investigation, direct him/her to cooperate in the interview, and inform him/her that failure to cooperate will constitute insubordination which may result in discipline, up to and including termination. In a recent decision, the California Court of Appeals found that the employer could lawfully terminate an “at-will” employee for dishonesty during the harassment investigation. 81 While an employer can terminate an at-will employee for no reason, it cannot terminate an at-will employee for an unlawful reason. McGrory argued that Government Code section 12940(h), part of the Fair Employment and Housing Act (FEHA), shields anyone from retaliation who participates in a discrimination investigation, even if the participant is uncooperative and untruthful. In rejecting this argument, the court held that Government Code section 12940(h) does not shield an employee against termination, or lesser discipline, for either lying or withholding information during an employer's internal investigation of a discrimination claim. Rather, such conduct is a legitimate reason to terminate an at-will employee. Discipline based on insubordination for refusing to cooperate in an investigation has been upheld by the courts. 80

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