Finding the Facts - Disciplinary and Harassment Investigation

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.

Discipline based on insubordination for refusing to cooperate in an investigation has been upheld by the courts. 103

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. 104 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. 105 S AMPLE L YBARGER A DMONITION Context #1: Employee is already under criminal investigation for same conduct, or it is otherwise clear before interview begins, that questions you intend to ask implicate potential criminal conduct. In this situation, before beginning to question the witness, state: “Your conduct at issue here may have criminal consequences; that is, you may be or become the subject of a criminal investigation and criminally prosecuted for the conduct that is at issue here. As a public employer, I have the authority to assure you that your statements will not be used in any criminal proceeding, and on that basis I may direct you to answer my questions. Please listen carefully as I review your rights now.”

Context #2: While questioning the witness, he or she refuses to answer on the grounds that it may incriminate him/her. In this situation, state:

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