Finding the Facts - Disciplinary and Harassment Investigation

Case Study

Whitehall v. County of San Bernardino 77 It is important to note that paid administrative leave could be deemed an adverse employment action. A California Court of Appeal allowed an employee to proceed with a whistleblower retaliation claim based on the theory that being placed on paid administrative leave constituted an adverse employment action. However, the court noted that each case turns on its own facts and did not find that paid administrative leave always constitutes an adverse employment action. As the court noted: “The impact of an employer’s action in a particular case must be evaluated in context. ...an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claims.” In Whitehall , two months of paid administrative leave pending an investigation was held to be an adverse action because there was little to investigate about Whitehall’s disclosure of accurate information to either the deputy county counsel who was handling the case or to the juvenile court.

Proceed very cautiously in moving a complainant or taking any employment action that could be perceived as adverse to the complainant. It may be more appropriate to temporarily transfer the alleged wrongdoer, and not the employee who complained. Asking the complainant for his or her input can also be helpful in achieving a mutually satisfactory interim solution and reducing the potential for on-going or compounding liability. Always document the complainant’s response.

LCW Practice Advisor

B. W HEN D O Y OU A DVISE THE E MPLOYEE T HAT H E /S HE IS THE S UBJECT OF THE I NVESTIGATION ? By way of example, assume that the investigator has been advised by an informant that employee Doe, a backhoe operator, returns to the District premises on Wednesday evenings between 10:00 p.m. and midnight, and uses a District-furnished key to enter the facility and to remove scrap metal. Should employee Doe be promptly told that he is the subject of an investigation? The answer is an emphatic no!

There is no statutory or case law requirement that an employee be advised pre-interrogation that he is the subject of an administrative investigation. Using the above example to advise Doe of

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 26