Disciplinary and Harassment Investigations

Legal counsel should be consulted regarding the extent to which the agency should communicate the results of the investigation and the type of discipline to be imposed.

2. H OW M UCH TO T ELL THE A CCUSED How much to disclose will depend on the findings. If the agency determines that the complaint was unfounded, the accused may simply be advised of the findings. However, if misconduct is found and discipline ensues, the employee’s due process rights affect the agency’s disclosure obligations. Specifically, where an agency relies on the investigation report as a basis for the discipline, it must be attached to the Notice of Intent to Discipline under the principles of Skelly . 122 Before attaching the report, however, it is important to review it to protect the privacy rights of others. Ideally, during the investigation, the investigator has informed each witness that while the investigation is confidential, in the event the agency must take disciplinary action, the accused has the right to confront his or her accusers. It is when a witness is reluctant to be identified to the complainant that further agency analysis is required. The right to due process does not necessarily require disclosure of the investigator’s entire binder, particularly the notes gathered during the investigation and all witness statements. Rather, the employee facing discipline is only entitled to the materials upon which the employer bases its disciplinary action. This may not include each and every supporting statement or document collected during the investigation, nor every witness interviewed. In deciding how to proceed to hearing, the agency must weigh whether to call or subpoena a reluctant witness who may recant his or her statements on the stand. If there is such a possibility, the agency’s basis for discipline should be limited to only the evidence and witnesses upon which it is confident that it can rely on in a hearing. In a recent PERB decision 123 , PERB ruled that a union has a right to information that is necessary and relevant to represent its members, as well as the right to meet and confer with the employer over alleged privacy concerns that may arise regarding investigation reports. PERB held that the City violated the MMBA by: (1) refusing to provide SEIU with a timely and minimally redacted version of an investigation report for use in its representation of a bargaining unit employee in a disciplinary grievance; and (2) failing to meet and confer with SEIU over privacy concerns relating to material in the investigation report. This decision reiterates that the employer should discuss privacy concerns with the union that arise from investigation reports before unilaterally deciding what to redact. a. California Investigative Consumer Reporting Act Aside from due process considerations for employees facing discipline as a result of an investigation report, disclosure of the report is also regulated by the California Investigative Consumer Reporting Agencies Act (“ICRAA”). Under ICRAA and its federal counterpart, the Fair Credit Reporting Act (“FCRA”), employers who wish to obtain background checks on applicants and employees are required to comply with certain notice and disclosure obligations.

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 70