Disciplinary and Harassment Investigations

Additionally, employers should note that FCRA does require the employer to disclose a summary of the investigation (but not sources) subsequent to any adverse action based in whole or in part on the investigation. 124 However, this requirement will have little impact in California because the due process principles articulated in Skelly v. State Personnel Board are broader. As discussed above, the Skelly principles require pre-discipline disclosure of the report itself, rather than a post-discipline summary. Thus, any disciplinary action that triggers Skelly due process rights requires a higher level of disclosure than FCRA. But, note that FCRA will apply where an employer relies on an investigation report to impose non-severe discipline. For example, based on a report, an employer may decide to impose a letter of reprimand. Such discipline does not trigger Skelly rights. Thus the FCRA disclosure requirements control.

Cases on Point: In a recent decision 125 , PERB adopted an ALJ’s proposed finding that the City was required to give the Union a redacted copy of a harassment investigation report. A customer service representative employee for the Redding Electric Utility filed a harassment complaint, and the City hired an outside investigator to investigate the complaint. During the investigation, some witnesses who were also customer service representatives raised general workplace concern. Consequently, the City expanded the scope of the investigation to include the employees’ other concerns. As a result of the investigation, the City proposed various changes to the supervision of the customer service representatives. PERB found that the investigation report was relevant and necessary for the Union to represent its members in being free from a hostile work environment, and to work in a safe workplace. Consequently, the City was required to

produce the investigation report and witness statements, subject to redaction/deletion of all employee names and other identifying information in such documents.

IMPORTANT: Confer with legal counsel before producing the written report and/or any other materials gathered during the investigation!

3. D ISCOVERABILITY OF THE R EPORT

Although an investigation concerns an employee’s personnel matters, under certain circumstances, the investigation report may be subject to disclosure under the California Public Records Act (PRA). In Bakersfield City School District v. Superior Court , a school district challenged a newspaper’s request for the disciplinary records of a district administrator. 126 The investigation concerned an alleged incident of a sexual and violent nature, but no discipline resulted from the allegations. 127 The Court of Appeal found that the disciplinary records were subject to disclosure under the PRA because the employee’s right to privacy in employment records did not outweigh the public’s right to know of the alleged wrongdoing. 128 The Court reasoned that it must find in favor of disclosure where records reflect allegations of a substantial nature and there is reasonable cause to believe the complaint was “well-founded.” 129 But neither

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 72