Finding the Facts - Disciplinary and Harassment Investigation

Legal counsel should be consulted regarding the extent to which the district should communicate the results of the investigation and the type of discipline to be imposed.

2. H OW M UCH TO T ELL THE A CCUSED How much to disclose will depend on the findings. If the district determines that the complaint was unfounded, the accused may simply be advised of the findings. However, if misconduct is found and discipline ensues, the employee’s due process rights affect the district’s disclosure obligations. Specifically, where an district relies on the investigation report as a basis for the discipline, it must be attached to the Notice of Intent to Discipline under the principles of Skelly . 145 Before attaching the report, however, it is important to review it to protect the privacy rights of others. Ideally, during the investigation, the investigator has informed each witness that while the investigation is confidential, in the event the district must take disciplinary action, the accused has the right to confront his or her accusers. It is when a witness is reluctant to be identified to the complainant that further district analysis is required. The right to due process does not necessarily require disclosure of the investigator’s entire binder, particularly the notes gathered during the investigation and all witness statements. Rather, the employee facing discipline is only entitled to the materials upon which the employer bases its disciplinary action. This may not include each and every supporting statement or document collected during the investigation, nor every witness interviewed. In deciding how to proceed to hearing, the district must weigh whether to call or subpoena a reluctant witness who may recant his or her statements on the stand. If there is such a possibility, the district’s basis for discipline should be limited to only the evidence and witnesses upon which it is confident that it can rely on in a hearing. a. California Investigative Consumer Reporting Act Aside from due process considerations for employees facing discipline as a result of an investigation report, disclosure of the report is also regulated by the California Investigative Consumer Reporting Agencies Act (“ICRAA”). Under ICRAA and its federal counterpart, the Fair Credit Reporting Act (“FCRA”), employers who wish to obtain background checks on applicants and employees are required to comply with certain notice and disclosure obligations. b. Definition of “Investigative Consumer Reports” Under ICRAA, “investigative consumer reports” include any report on the “character, general reputation, personal characteristics, or mode of living” of an applicant or employee. c. Definition of “Investigative Consumer Reporting Agency” An “investigative consumer reporting agency” means any person who, for monetary fees or dues, engages in whole or in part in the practice of collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating information concerning consumers for the purposes of furnishing investigative consumer reports to third parties, but does not include any governmental agency whose records are maintained primarily for traffic safety, law

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