Finding the Facts - Disciplinary and Harassment Investigation

PERB relied upon the Banner Health System decision to reject a Community College District’s confidentiality directive to an employee regarding a fitness for duty examination. 105 The Los Angeles Community College District (District) advised Carlos E. Perez, an adjunct faculty member, that he would be placed on paid administrative leave while the District initiated a fitness-for-duty examination. The letter was stamped "Confidential," and stated: "You are hereby directed not to contact any members of the faculty, staff, or students." Relying on NLRB’s Banner Health System , PERB reasoned that if employees are prohibited from discussing wages, hours, and working conditions at the workplace, they are less equipped to make free and informed decisions about whether to exercise their EERA rights to form, join, or participate in a union. PERB stated that, "[i]n circumstances not present here, the employer may have the right to demand confidentiality of its investigation." It noted, however, that the employer will have the burden of establishing a legitimate justification for the prohibition, and that in this case, the District did not explain why its directive was necessary to preserve the integrity of its investigation. Therefore, PERB held that the District's directive infringed on Perez's protected rights. In a recent PERB decision, PERB considered a gag order issued during a pending administrative investigation and held that it interfered with police officer and association rights. In this case, the County of Santa Clara initiated an investigation against a peace officer and the president of the Santa Clara County Correctional Peace Officers’ Association, for alleged violations of the County’s workplace communications policies. The County placed the police officer on paid administrative leave and directed him to stay off the Sheriff’s Office property. The County also ordered him not to discuss the matter “with any witnesses, potential witnesses, the complainant, or any other employee of the Sheriff’s Office other than [his] official representative.” 106 PERB concluded that the County’s gag order not only interfered both with an employee’s rights to discuss the terms and conditions of his employment with co-workers and also with the association’s right to represent its members in their employment relations with the County. 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;

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 47