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The Accused’s “Right” to the Complaint in Workplace Investigations

by Jennifer Shaw and Megan Donaghey | The Daily Recorder | July 22, 2022

Employers must investigate potential workplace misconduct, particularly when it implicates internal equal employment opportunity policies. The “accused,” or respondent, in such an investigation, understandably needs to know the basis of the complaint against them. Providing this information allows them the opportunity to respond to the allegations and explain their view of events.  But how much information is a respondent entitled to, and when?  The answers to these questions depend on the nature of the workplace. There are different rules for public sector and unionized employees, some of which depend on the respondent’s position in the organization. 

Notice Generally

Generally, employers should provide a respondent with notice of the claims against them, but not necessarily in advance of an investigation interview. Waiting until the interview itself allows the investigator to hear the respondent’s initial response to the claims, and prevents a respondent from preparing a “suitable” response in advance of the interview. The Department of Fair Employment and Housing, in its “Harassment Prevention Guide for California Employers,” supports not providing respondent specific details of a complaint in advance, and recommends instead revealing the allegations or claims during the respondent’s interview.

Even if the employer does not provide the respondent with an advance copy of the complaint or details about the allegations at issue, however, the law sometimes requires employers to provide some level of detail regarding the allegations prior to interviewing the respondent.

“Represented” Employees, Peace Officers, and Firefighters

Employees who belong to a union, most public sector employees, peace officers, and firefighters are entitled to “reasonable notice” of the allegations against them in advance of their interview with the investigator.  Unfortunately, none of the laws providing this entitlement (the Public Safety Officers Procedural Bill of Rights Act (POBR), the Firefighters Procedural Bill of Rights Act (FOBR), the regulations of the Public Employee Relations Board, and the federal National Labor Relations Act), define the term “reasonable notice.”

Applicable case law demonstrates that “reasonable notice” will be determined through a fact-specific inquiry. In the 2019 Contra Costa Community College District PERB decision, the Board considered whether the respondent was entitled to a copy of the underlying complaint, and discussed what constituted “reasonable notice.”  The Board held that the employer must provide the union with sufficient information about the allegations “to enable a union representative to represent an employee in a meaningful manner during the interview.”  The Board made clear that the employer does not satisfy its duty to allow for meaningful representation if it provides only general information about the charges of misconduct alleged. However, the Board also stated that “reasonable notice” does not equate to providing a respondent with a copy of the underlying written complaint in advance.

Additionally, the Board held that the notice must be “timely,” which, again, will depend on the circumstances  The Board discussed that in at least one instance, under the specific circumstances, one hour’s notice sufficed. However, it cautioned that more time may be warranted depending on the nature of the allegations.

Employers are wise to err on the side of providing respondents with more notice if the circumstances allow, to ensure the respondent and their representative have time to confer. And, where notice is provided close in time to the interview, investigators should provide the respondents additional time to meet with their representatives before starting the interview, if desired.

Requests to Receive the Written Complaint After the Interview

Sometimes, following the initial interview or after the investigation is complete, a respondent will request to receive a copy of the written complaint. Public sector employees, peace officers, and firefighters may be entitled to receive a copy where the outcome of the investigation leads to disciplinary action.  Otherwise, respondents generally are not entitled to receive a copy of the complaint even after the investigation concludes.

However, the Contra Costa Community College District decision addresses whether public sector employees (through their union representatives) are entitled to receive a copy of the written complaint naming them after they complete their interview with the investigator.  The Board stated that employers must meet and confer with the union and negotiate in good faith in response to any union request for a copy of the complaint.  So, rather than relying on blanket internal policies prohibiting the disclosure of internal complaints, employers must entertain post-interview requests for copies of written complaints. To preserve confidentiality and protect against retaliation, the employer could redact certain information in the complaint, or reach an agreement with the union regarding the use and dissemination of the complaint. 

Employer Tips 

All employers should ensure respondents receive timely notice of the allegations against them. Where required by law, employers should ensure they have provided specific details about the allegations, such as the timeframe and nature of the alleged misconduct, rather than providing vague statements that the employee “may” have violated a workplace policy. If a respondent requests a copy of the complaint prior to an investigatory interview, the employer should refer them to the notice provided, reiterate that they will learn more details about the complaint during the interview, and remind them that they will have a full opportunity to respond to all allegations against them.  

If a respondent requests a copy of the complaint at the conclusion of the investigation, the employer should not immediately deny the request if the respondent is a member of the union or a public sector employee. Blanket policies prohibiting the disclosure of the written complaint may run afoul of applicable law.  Employers are better served by negotiating with the respondent in good faith, considering options that would preserve confidentiality and mitigate retaliation while also providing appropriate notice of the allegations under review.

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