Employers often find it challenging to determine how much information to provide witnesses and respondents during workplace investigations. Do respondent employees have a right to know the substance of the complaint against them and/or the identity of their accuser? Do employees have a right to have a representative present in their interview? The answers to these questions depend on several factors. 

Notice Obligations

Respondents in unionized workforces must receive advance notice of an interview that (1) informs them of their right to union representation during the interview, and (2) provides sufficient information about the allegations to enable the union to provide meaningful representation.

Contrary to the views of some union representatives in the public sector, the second requirement does not require employers to provide respondents with a copy of the complaint at issue or the precise allegations. Rather, the accused are entitled only to information about the general nature of the claims. 

The California Public Employment Relations Board confirmed this interpretation in its 2019 Contra Costa Community College District decision.  However, in that same decision, the Board declined to adopt a “blanket rule” protecting the disclosure of complaints. Instead, the Board conducted a “balancing test,” weighing the union’s need for the information against the complainant’s privacy interest. Where the privacy interest outweighs the union’s need for information, employers must “meet and negotiate in good faith to seek an accommodation of all legitimate competing interests.” 

In union-free workplaces, employees have no right to advance notice or information prior to investigation interviews, regardless of their role in the investigation.

Representation Rights

Under NLRB v. Weingarten, Inc., a 1975 United States Supreme Court decision, union employees are entitled to have a union representative attend investigation interviews if all of the following requirements are met:

• A manager, representative of management, or supervisor is seeking to question an employee.  
• The questioning is part of an investigation into the employee’s performance or work conduct, such that the employee may be required to defend, explain, or admit misconduct or work performance issues that may form the basis for discipline or discharge (referred to as an “investigatory interview”).  
• The employee reasonably believes that the investigation may result in discharge, discipline, demotion, or other adverse consequences to their job status or working conditions.  
• The employee requests a union representative.

The representative often is a union steward or other representative, who is not a witness to or otherwise involved in the events at issue in the investigation.

Witnesses (as opposed to respondents) are not entitled to representatives in investigatory interviews unless the witness is a public safety officer or firefighter.

Public Safety Officers and Firefighters

Workplace investigations involving public safety officers and firefighters are governed by the Public Safety Officers Procedural Bill of Rights (POBR) and the Firefighters Bills of Rights (FBOR), respectively. These laws do not apply to other employees who work for the police and fire departments.

Prior to an investigatory interview, employees covered by these laws are entitled to notice of the following:

• The date, time, and location of the interview;
• The name, rank, and command of the person in charge of the interrogation;
• The person conducting the interrogation and anyone else who will be present;
• Their Miranda rights if they may be charged with a crime based on the subject matter of the investigation;
• Their right to arrange for representation at the interview if they wish; and
• Sufficient information about the alleged wrongdoing to enable the representative to provide meaningful representation (employers generally will satisfy this requirement by identifying the policies at issue and a brief description of the respondent’s alleged misconduct).

POBR and FBOR also provide covered employees with specific rights during the interview. For example, the interview must be conducted at a reasonable hour and for a reasonable amount of time with no more than two interviewers present.

In addition, covered employees are entitled to record the interview. They may also receive any transcription of the employer’s recording of the interview as well as notes or reports of the interview not deemed confidential.

Finally, if the employer conducts a follow-up interview with the employee, the employee may be entitled to obtain the recording of the prior interview as well as “complaints, investigator’s notes/reports, and recordings of other witnesses” prior to the interview.

Best Practices

When conducting investigations, employers should ensure they follow all applicable laws and regulations. For example, if a union representative requests a copy of the complaint, employers cannot just say “no.” Instead, they must negotiate with the representative and provide the information necessary and relevant to the union’s representation.

At the same time, employers must protect the complainant’s legitimate privacy interests. Failure to do so can result in legal liability and overturned discipline in union workplaces. Similarly, employers of public safety officers and/or firefighters must be familiar with POBR and FBOR obligations. Other employers have more flexibility in their policies and practices but should aim for consistency in workplace investigations.