Finding the Facts - Disciplinary and Harassment Investigation

 The order must be communicated by someone with the proper authority to give the order;

 The employee must have understood the order; and

 The employee must have intentionally or willfully refused to comply with the order.

Because the order must be given by someone with the proper authority, the order must be given by either the employee’s supervisor or someone else in the chain of command with the proper authority. Outside investigators do not hold such authority. Therefore, if an outside investigator is conducting the interviews, someone from within the district holding the proper authority must give the order. This can be done through a pre-interview memorandum given to the employee(s) to be interviewed by the appropriate person. The memorandum should inform him/her of the investigation, direct him/her to cooperate in the interview, and inform him/her that failure to cooperate will constitute insubordination which may result in discipline, up to and including termination. In a recent decision, the California Court of Appeals found that the employer could lawfully terminate an “at-will” employee for dishonesty during the harassment investigation. 108 While an employer can terminate an at-will employee for no reason, it cannot terminate an at-will employee for an unlawful reason. McGrory argued that Government Code section 12940(h), part of the Fair Employment and Housing Act (FEHA), shields anyone from retaliation who participates in a discrimination investigation, even if the participant is uncooperative and untruthful. In rejecting this argument, the court held that Government Code section 12940(h) does not shield an employee against termination, or lesser discipline, for either lying or withholding information during an employer's internal investigation of a discrimination claim. Rather, such conduct is a legitimate reason to terminate an at-will employee. (b) “ Lybarger Warning” When the investigation may reveal that the employee has committed a crime, the employee may refuse to answer questions out of fear that the answers may be used to criminally prosecute him/her. If the employee asserts his or her right against self-incrimination, the investigator should read to the employee what is called a Lybarger admonition. The Lybarger admonition explains to the employee that, if he/she refuses to provide complete and truthful answers to the questions, he/she will be subject to discipline up to and including dismissal for failure to answer, but, the admonition also explains that the answers to those questions cannot be used against him/her in any criminal proceeding. While the Lybarger case involved an investigation of a police officer, subsequent cases have applied the same principles to all public employees. 109 Discipline based on insubordination for refusing to cooperate in an investigation has been upheld by the courts. 107

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