Finding the Facts - Disciplinary and Harassment Investigation

asked of you during this interrogation. Your failure to do so will, in and of itself, constitute a disciplinable act of insubordination and will result in a recommendation of disciplinary action against you, up to and including dismissal. Department General Order No.____ provides that: (include general order providing that insubordination is grounds for discipline).

While this statutory directive applies only to firefighters, the principle is applicable to all public employees facing administrative interrogation for conduct that could possibly implicate criminal law. Districts should consult with legal counsel whenever immunity issues are presented by the conduct under investigation. vi. Ensure No Retaliation Taking an adverse employment action against an employee for assisting in a harassment investigation is unlawful. Therefore, interviewees should be advised that they will not be retaliated against for assisting in the investigation. This will also encourage cooperation if the person to be interviewed is reluctant to provide information. The alleged harasser should be admonished that he/she shall not retaliate against the complainant or anyone else associated with the investigation for having complained about harassment or being involved in the investigation. This admonition should also be given to anyone else who has the authority to take adverse employment actions against persons involved in the investigation. We generally recommend checking back in with a complainant after an investigation is completed to ensure the employee is not experiencing retaliation. This should be done no matter whether the allegations were sustained or not. (See http://bit.ly/2MXWIeB , p. 8) vii. Ensure Confidentiality, to the Extent Possible Complaints must be processed as confidentially as possible. Identities should not be disclosed, except to the extent necessary to continue the investigation. Statements made by employees should not be disclosed to other employees, unless it is necessary to elicit specific, relevant, and necessary information from the employee. Occasionally, complaining parties and/or witnesses ask for an assurance of confidentiality before providing information. The DFEH’s Workplace Harassment Guide caution that can only promise limited confidentiality that the information will be limited to those who “need to know” but cannot promise complete confidentiality. The reasons for this instruction, according to the DFEH’s Workplace Harassment Guide, are:  If the complaint is of a potential violation of law or policy, the employer will need to investigate, and in the process of investigating it is likely people will know or assume details about the allegations, including the identity of the person who complained.

This is true even when the name of the complainant is kept confidential since allegations are often clear enough for people to figure out who complained about what.

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 51