An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

The memorandum should inform him or her of the investigation, direct him or her to cooperate in the interview, and inform him or her that failure to cooperate will constitute insubordination which may result in discipline, up to and including termination. The California Court of Appeals has found that an employer could lawfully terminate an “at- will” employee for dishonesty during an harassment investigation. 1959 While an employer can terminate an at-will employee for no reason, it cannot terminate an at-will employee for an unlawful reason. The employee argued that Government Code section 12940(h), part of the California Fair Employment and Housing Act, 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. iv. Advise Regarding No Retaliation Taking an adverse employment action against an employee for assisting in an harassment, discrimination, or retaliation investigation is unlawful. Therefore, interviewees should be advised they will not be retaliated against for assisting in the investigation. This should also encourage cooperation if the person to be interviewed is reluctant to provide information. The alleged wrongdoer should be admonished that he or 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 that the employee is not experiencing retaliation, no matter whether the allegations were determined to be correct. 1960 In certain cases, it may also be appropriate to check in with witnesses. v. Advise Regarding Confidentiality, To The Extent Possible Complaints must be processed as confidentially as possible. Identities should not be disclosed, except to the extent necessary to conduct the investigation. Statements made by employees or students should not be disclosed to other employees or students, unless it is necessary to elicit specific, relevant, and necessary information. Occasionally, complaining parties and/or witnesses ask for an assurance of confidentiality before providing information. Prior to being interviewed, the complainant and all witnesses should be told that information may need to be disclosed in order to fully investigate, or to obtain testimony in any hearing which might be held; or to administer discipline/remedial action.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 460