Preventing Workplace Harassment, Discrimination, and Retaliation

complaint, but it should also elicit and address any specific concerns the complainant has regarding an investigation, such as retaliation or fear of physical harm.

If litigation occurs after an investigation, the complainant, alleged harasser, or both, may seek all of the details of the investigation. The investigator must always remember that anything the investigator says to witnesses, writes in a report, or even in personal notes could be disclosed later in a lawsuit. This fact underscores the need for a methodical approach that affords fairness to all witnesses and ensures confidentiality.

LCW Practice Advisor

C. R IGHT OF R EPRESENTATION Employees participating in investigatory interviews, who have a reasonable belief that discipline may result from the interview, have a right to be represented by their union representative or legal counsel in such an interview upon request. 197 D. L YBARGER A DMONITIONS Employees do not have a right to refuse to answer questions. Such refusal can be grounds for insubordination and may result in discipline up to and including discharge. Additionally, at-will employees may be terminated for dishonesty during a harassment investigation. 198 Peace officers suspected of criminal misconduct must receive a Lybarger warning because of the special protections provided by the Public Safety Officers Procedural Bill of Rights Act (POBR). 199 Non-Sworn employees may be given a Lybarger warning as well. Investigators should note that the POBR also provides other procedural guarantees for public safety officers during interrogations. 200 In a departure from the POBR, however, the Firefighters Procedural Bill of Rights Act (FBOR) specifically provides that an employer “shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation.” 201 Once the grant of immunity is provided, the employing fire department shall inform a firefighter that the failure to answer questions directly related to the investigation or interrogation may result in punitive action. 202 Because the FBOR’s language requiring the grant of immunity is ambiguous, public agencies should consult with legal counsel in each case where this could be an issue. E. D ISCRIMINATORY I NVESTIGATIONS Victims of harassment, as well as employees who are accused, may challenge the fairness of the investigation. If an employer improperly performs an investigation, a court or administrative agency may find that the poor investigation itself is discriminatory.

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 52