California’s Firefighters Procedural Bill of Rights Act (FBOR) contains many requirements that might ensnare the unwary investigator.  An investigator investigating the conduct of a firefighter, paramedic, or emergency medical technician (who might be subject to "punitive action" by his/her public agency employer) must comply with the following investigation and pre-investigation procedures:

  • The firefighter under investigation shall be informed, prior to the interrogation, of your name and the names of all other persons you expect to be present during the interrogation.
  • The firefighter under investigation shall be informed of the nature of the investigation prior to any interrogation.
  • All questions directed to the firefighter under interrogation shall be asked by and through no more than two interrogators at one time.
  • The interrogation shall be conducted at a reasonable hour, at a time when the firefighter is on duty, unless an imminent threat to the safety of the public requires otherwise.
  • The interrogating session shall be for a reasonable period taking into consideration the gravity and complexity of the issue being investigated.
  • The person under interrogation shall be allowed reasonable breaks to attend to his or her own personal physical necessities.
  • The firefighter under interrogation shall not be subjected to offensive language or threatened with punitive action.
  • A “promise of reward” shall not be made as an inducement to answering any question.
  • The employer shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation. Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to interrogations shall be informed that the failure to answer questions directly related to the investigation or interrogation may result in punitive action (Lybarger warning). Gov’t Code Section 3253(f). (Note: This requirement of a written offer of immunity raises questions since a Fire Department has no authority to grant immunity.)
  • A firefighter cannot be required or requested to disclose his or her assets, income, or debts unless required under state law or pursuant to court order.
  • The employer (or investigator) cannot search the firefighter’s locker or other space for storage unless the firefighter is present, or her or she consents, or he or she has been notified that a search will be conducted, or unless a valid search warrant has been obtained.
  • The complete interrogation of a firefighter “may” be recorded. If a recording is made of the interrogation, the firefighter shall have access to the recording if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The firefighter being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
  • The firefighter shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those portions that are otherwise required by law to be kept confidential.
  • Notes or reports that are deemed to be confidential shall not be entered in the firefighter’s personnel file.
  • If, prior to or during the interrogation of a firefighter, it is contemplated that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights (Miranda warning).
  • Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that may result in punitive action against any firefighter, that firefighter, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.
  • The representative shall not be a person subject to the same investigation. The representative shall not be required to disclose, or be subject to any punitive action for refusing to disclose, any information received from the firefighter under investigation for noncriminal matters.

Since most of these procedures are the same as California’s Public Safety Officers Procedural Bill of Rights Act (POBR), any ambiguities in, or questions about, these procedures can probably be cleared up by reviewing the POBR cases (several of which I’ve discussed in prior postings concerning POBR).

California public safety officers have had their own procedural bill of rights for the last three decades, so it is only fair that California firefighters should also have a procedural bill of rights (as many other states have also enacted). The Firefighter’s Procedural Bill of Rights Act (FBOR) became effective January 1, 2008; thus, case law has not had sufficient time to develop concerning this statute (California Government Code Sections 3250 through 3262). However, since FBOR was patterned after the Public Safety Officers Procedural Bill of Rights Act (POBR), the various rights will probably be given the same meaning by the courts. 

Under FOBR, a "firefighter" means any firefighter employed by a public agency, including, but not limited to, any firefighter who is a paramedic or emergency medical technician, irrespective of rank, but does not include probationary employees or inmates performing firefighting duties.

When any firefighter is under investigation that could lead to “punitive action,” and the firefighter is subjected to interrogation by his or her commanding officer, or subjected to an investigative interview by you (if you are so designated by the Fire Department retaining you), FOBR applies. "Punitive action" means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.

FOBR contains many requirements, and any investigator conducting such an investigation (internal employee or outside investigator) should stay abreast of the technical requirements of these statutes and the developing case law in this area.

News flash:  Context matters!   Big headlines this last week about the Obama administration’s rush to judgment in demanding the resignation of Shirley Sherrod, the former Agricultural Department’s Chief of Rural Development in its Georgia office.  She was forced to resign after a 2 and 1/2 minute clip of her March 2010 speech at an N.A.A.C.P. event in Georgia was all over the Internet and the news.  

Had her employer conducted even a cursory investigation (a few hours locating, and listening to, the whole 45-minute speech or even talking to Ms. Sherrod), it would have learned the truth.  In her speech she recalled a period 24 years ago when she worked for a nonprofit agency that helped rural farmers fight bankruptcy.  In the brief excerpt, she spoke of helping a white farmer, but not with the “full force of what she could do" or with what she then believed black farmers needed in assistance.  She recounted how the white farmer had ultimately opened her eyes to the truth that white farmers faced much the same threat as blacks and that “there is no difference between us.” 

According to a CBS News story on July 20, the white farmer’s family has confirmed her story saying “She’s a good friend”, “She helped us save our farm,” "She’s a friend for life" and how she helped them out of bankruptcy. 

So, the context was that she was using a personal story from 24 years ago to make a point that it was not about "black and white", but about helping the poor.

According to a New York Times editorial on July 21:

Ms. Sherrod told of how an agriculture under secretary phoned her to demand she resign instantly via her BlackBerry. The official anxiously cited the likelihood that the furor would “be on Glenn Beck tonight.”

By the time the conservative commentator took up the issue, the full transcript of the speech was out and Mr. Beck was citing Ms. Sherrod — but as a victim of administration recklessness. This time, he was right.

The Public Safety Officers Procedural Bill of Rights Act (POBR) contains many requirements.   Some of the rights that a workplace investigator should be familiar with are the "representative" requirements.  POBR states the following three rights:

• Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any officer, that public safety officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.
• The representative shall not be a person subject to the same investigation.
• The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the public safety officer under investigation for non-criminal matters.

Unavailability of Chosen Representative.  How long can an interview be delayed based upon unavailability of the public safety officer’s representative? Courts have held that it is the public safety officer’s responsibility to secure the attendance of a chosen representative who is physically able to represent the officer at the reasonably scheduled interrogation.  In other words, the interview does not have to be unreasonably delayed because of the “chosen” representative’s unavailability; otherwise, “an officer could prevent any interrogation by simply choosing a representative who would never be available.”  Upland Police Officers Assn v. City of Upland, 111 Cal.App.4th 1294 (2003).

The City of Upland court stated,

Nothing in [POBR] suggests that interrogations may be repeatedly postponed [due to the unavailability of the “chosen” representative] or that the time chosen for the interrogation is subject to the schedule of the chosen representative. . . .

The court concluded:

We only hold that such right is not unlimited. The officer must choose a representative who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation. But it is the officer’s responsibility to secure the attendance of his or her chosen representative at the interrogation. If he or she is unable to do so, the officer should select another representative so that the interrogation may proceed "at a reasonable hour."

Role of Representative. What role does the representative play during the interview? Unlike investigations involving the private employee, the public safety officer’s representative does not have to be silent.  Instead, courts have held that a public safety officer’s representative may speak, object, clarify questions, and even elicit favorable facts during the interrogation.

Thus, the representative can take an assertive role to assist in ascertaining the facts of an incident in the pursuit of protecting the public safety officer. The California Supreme Court identified the purpose of the public safety officer’s representation during an investigatory interview in Civil Service Ass’n v. City and County of San Francisco, 22 Cal.3d 552, 567 (1978):

A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. . . .” (citing NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).

A note of caution – this does not equate to adversarial confrontation during the interview.

The Public Safety Officers Procedural Bill of Rights Act (POBR) contains many requirements.  One requirement of particular concern to workplace investigators is the "notice" requirement.  POBR states that the public safety officer under investigation shall be informed of the "nature" of the investigation "prior" to the interrogation.

Of course, this begs the questions– How much detail?  How much prior notice?

Detail in Notice. How much detail must the officer be given beforehand to meet the “informed of the nature of the investigation” requirement? Although POBR does not specifically tell us, it should be more than a generic interrogation notice, but less than providing each and every specific factual allegation against the peace officer. A notice providing the general nature of the allegations, with adequate content to understand the charges, might look like this:

It has been alleged that you have engaged in conduct that violates the department’s sexual harassment policies. The alleged conduct includes inappropriate comments, touching, emails, computer usage, and photographs over the course of six months.

The particulars of these allegations must then be fully explored during the investigative interview.

Time of Notice. How far in advance must the public safety officer be informed of the nature of the investigation? Again, POBR does not directly state the specifics of the “notice” requirement. Courts have used a “rule of reasonableness,” recognizing that peace officers should receive the notice far enough in advance so as to be able to prepare an adequate response.


The Society for Human Resource Management (SHRM) is holding its annual conference in San Diego this year June 27 – 30, 2010.  I thought I would alert you to two pre-conference workshops concerning conducting internal workplace investigations.  Both workshops are on Saturday, June 26, before the conference begins.

The first is titled Minefields for HR Professionals in EEO Investigations.   The summary for this workshop is:

Let’s face it, when you do an investigation, almost always, one of the parties believes you got it wrong.  In litigation, brought by either the complainant or the accused, the focus is not only the alleged underlying wrong, but also how it was investigated.

In other words, the litigation spotlight shifts to HR.  It also will provide guidance on frequent minefields for you such as:  how do you handle the employee who shares concerns with you but then begs you not to investigate; how do you ask about sensitive matters without your questions potentially making the parties to the investigation more uncomfortable; how do you handle complaints involving third parties without risking joint employer status; how do you document each step of the process, knowing that your documentation is discoverable; and how do you handle the very specific problems of investigating a complaint against an executive to whom you report (such as the CEO) or by employees in your group (one HR professional against another).

This session is conducted by Jonathan A. Segal, partner, Duane Morris, Philadelphia, Pa.

The second workshop is titled Conducting Effective Internal Investigations.  The summary for this workshop is:

This session will provide the practical skills necessary to conduct an internal investigation into claims of employee misconduct for HR professionals as well as your security, risk management and loss prevention personnel.  We will take you and your staff step-by-step through the investigation process.  We utilize interactive case studies during the day so that you can actually practice these skills.  We will also teach you to prepare effective documentation at each stage in the investigation process.

This session is conducted by Glen E. Kraemer, managing partner – LA, Curiale, Dellaverson, Hirschfeld & Kraemer, LLP, Santa Monica, Calif.

If interested, you can register for these pre-conference workshops with SHRM.

According to the February 18, 2010, Newsletter of the United States Department of Labor’s (DOL), 107 new members of its "Wage & Hour" staff have completed their "Basic I Investigator Training." The graduates completed an intensive three-week training on the investigative process and application of the Fair Labor Standards Act.  Despite its name, “Basic I” is not beginners. Prerequisites to the course include completion of a comprehensive, 12-week pre-training, and a minimum of three months of on-the-job training.  

The Wage & Hour Division is currently preparing for a second group of new field investigators for the Basic I Training, in conjunction with the DOL’s announcement late last year that it is hiring and training 250 new "wage and hour investigators" to seek out wage-and-hour violators.

In a warning to employers, U.S. Secretary of Labor Hilda L. Solis stated: 

In early 2010, the department will launch a national public awareness campaign titled "We Can Help" to inform workers about their rights.  The department will work closely with advocacy groups and other stakeholders to ensure that the materials developed for the campaign reach the workers who need them.  We will not rest until the law is followed by every employer, and each worker is treated and compensated fairly."

Accordingly, employers would be well-advised to conduct an internal wage and hour audit to make sure they are compliant.  Here are a few actions employers should take:

  • Conduct a wage & hour audit.   Double check that all of your job positions are properly classified as either "exempt" or "non-exempt" under the FLSA and DOL’s regulations–as well as California’s DLSE Regulations, DLSE Enforcement Manual, and the Industrial Welfare Commission Wage Order applicable to your business.   You can conduct the audit yourself or hire an experienced wage/hour attorney or HR consultant to perform this analysis.
  • Pay special attention to "threshold jobs" that are in a grey area between "non-exempt" to "exempt" classifications.  It is better to be conservative, so as to avoid a lawsuit, and classify these "threshold jobs" as non-exempt to avoid any future problems.  If overtime is an issue, examine the possibility of lowering the hourly pay so you don’t end up having to pay more overall wages to the reclassified employee. 
  • Educate employees who are reclassified as to the reasoning and explain that the employer is simply trying to comply with federal and state laws.  Some employees have a notion that if they are "salaried" (versus hourly), then their job position in the company is somehow more sophisticated or important.  The employer should explain that they are still looked upon with the same level of respect, but the change from salary to hourly is simply a function of the employer complying with the law.
  • Educate managers on the basis for the changes and make sure they understand that the previously salaried (now hourly) employees will now need to receive timely, uninterrupted meal and rest breaks, and overtime.

Dear Readers,

I recently wrote an article, along with employment attorney Nancy Bornn, providing practice pointers on conducting internal workplace investigations.  It is published today on the SHRM (Society for Human Resource Management) website.

If you are not a member of SHRM, you can also read the article for a limited time on the California Association of Workplace Investigators Website.

You have just learned that an employee is complaining of sexual harassment by a co-worker via email.  What should you do first, or at least at the very top of the list?  

Take steps to insure that the accused harasser does not have access to any of the evidence supporting the alleged victim’s claims.  For example, you want to immediately preserve evidence before emails can be deleted from computers and servers.  The IT staff of the employer should be notified immediately so the evidence can be procured off the employer’s servers.  

I once investigated a case where the accused harasser was in charge of IT and all of the settings on the company’s server were scheduled to delete emails off the server after only a few hours.  IT experts were later hired by the company and even they could not retrieve that evidence!  Another investigation could have been resolved easily by viewing the surveillance tapes of a particular hallway and office entrance on a particular date.  However, the employer did not preserve the video evidence and it was taped over before I was ever called upon to conduct the investigation.  

Employers might want to consider adding a "preservation of evidence" policy to any policies they might already have concerning workplace investigations.  For instance, some employers have a written policy in their employee handbook that requires all employees to cooperate in internal investigations of the employer.  The additional policy might state that employees are prohibited from destroying any documentation that could in any way be relevant to a workplace investigation should they be put on notice of an investigation.

Once the employer and/or investigator determines which documents may be relevant during the investigation, the employer might want to issue a "preservation order" to each witness or party who may have access to any relevant evidence.  If any employee is later found to have knowingly tampered with the evidence, after receiving a preservation order, it makes it much easier to terminate that employee since the employee was put on notice.

Another consideration is to block the accused harasser from accessing his computer or the network from off-site.  An employee with computer software allowing him/her to access the employer’s computer network from offsite (LogMeIn, pcAnywhere, GoToMyPC, and many others) needs to be locked out by the IT staff immediately.  If the accused harasser is to be placed on administrative leave pending the outcome of the investigation, this computer lock out should be done before the accused harasser is advised of the charge against him/her.  

Each of these steps should be witnessed by the investigator and documented in the investigator’s report or file notes.

The investigator also needs to insure that the chain of custody is documented for physical evidence obtained. The investigator should keep note of when and how physical evidence was obtained, who has handled it, who else was present (witnesses) during the evidence collection process, where and how it was transported, and where it has been stored during the pendency of the investigation up until the time the matter is resolved.  

Failing to properly document the chain of custody could result in information becoming inadmissible in court.

Should a workplace investigator in a sexual harassment or discrimination investigation view the personnel file of the complainant / alleged victim at all?  If so, at which point in the investigation should it be viewed, and under what circumstances?  These questions are debatable among workplace investigators, but I have my preference, and of course, an opinion.

One opinion voiced is "how can the investigator understand the context of the case and give the
complainant or accused an opportunity to address the fact that this is her 7th complaint in 7 weeks or that this is the third time an employee has accused this person of inappropriate touching if the investigator does not read the personnel files prior to the investigatory interviews?"

My answer to that question is simple.   Asking the complainant how many times an incident occurred, and how many times he or she has complained about it, should be questions an investigator already asks in every investigation anyway, with or without a prior review of a personnel file.  Further, what if this information is NOT in the personnel file– Does that mean the investigator wouldn’t ask these questions and/or the questions wouldn’t be relevant?  Of course not.

Second, my personal opinion is that the investigator is supposed to be coming into the investigation as an impartial fact finder–just like a jury is supposed to be impartial and have no preconceived notions.  A jury doesn’t get to hear about the contents of the complainant’s personnel file from the employer’s lawyer (defense) before they hear the complainant’s lawyer’s (plaintiff’s) opening statement.   Why should an investigator be any different?

Third, what if the personnel file of the complainant contains information that might be prejudicial to the complainant, but is completely irrelevant to whether sexual harassment occurred?  For example, what if the personnel file discloses performance problems, attendance problems, wage garnishment documentation, or any of myriad items of potential embarrassment to the complainant?  I can envision sitting in a deposition and being queried by a plaintiff’s attorney about how I was surely biased against his/her client, the complainant, from the very beginning, if I learned of all of these problems about the complainant before I even heard his/her story?  The investigator might as well paint a red bull’s eye on his/her forehead.

Another view I’ve heard is:  "Reading the [personnel] files afterwards will only extend the duration (and burden) of the process unnecessarily if the investigator must then go back and reinterview once she has learned about prior conduct that may challenge credibility.  Why can’t the investigator sufficiently prepare by reading the files and still maintain neutrality?  Isn’t that our role?"

In response to this, I’d like to share what a leading Employer/Management law firm, which frequently conducts workplace investigations, has to say on the subject.  Although agreeing that personnel files "may" become relevant in credibility assessments, its advice is not to prejudge the investigation:

It is not necessarily appropriate, however, for the investigator to review personnel files before the investigation begins or at the beginning of the investigation. Remember, the investigator should not have any preconceived judgments or opinions about the allegations or persons involved.   If the investigator learns about the prior complaints made by the complainant or against the alleged harasser, or of prior discipline against the alleged harasser, it may affect his/her ability to remain impartial.   Thus, the investigator should only review personnel files when it becomes necessary, such as in making credibility determinations or, in the event he/she is called up to do so recommending the level of disciplinary action, if any, to impose." See, Finding the Facts: Disciplinary and Harassment Investigations, Liebert Cassidy Whitmore.

Further, assuming solely arguendo that the "duration (and burden)" would be increased by such a process, such matters must be secondary to the integrity of the investigation.  The personnel file can always be obtained at the initiation of the investigation, but not reviewed until, or unless, necessary. In any event, follow-up questions are typical in most investigations, so any time ("or burden") spent in such a process is to be expected.  All of these same points apply concerning viewing the accused harasser’s personnel file as well.