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. 102 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. Sample Interview Notice Directives to a witness and the accused (both non-sworn and sworn) are attached as Appendices A, B, and C respectively. 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. Appendix F is a statement that can be read if an employee refuses to respond to questions or to submit to an interview. (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;

 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)

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 48