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Subjected to unfair secretive threat investigation, but how I'm forcing them to give me the records

Discussion in 'Employment, Labor, Work Issues' started by a012, Dec 29, 2018.

  1. a012

    a012 Law Topic Starter New Member

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    Jurisdiction:
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    People in California who are subjected to "threat investigations" by their employers should read this!

    Before I left my now-former employer, the employer subjected me to a threat investigation with their threat-assessment team. It happened because an external person, who had "an axe to grind" against me, vindictively contacted my employer and made aspersions about me to get me in trouble at work. My employer's threat-management team interrogated me about my dealings with that external person which were non-work-related, as well as about all sorts of other matters. The whole time, the threat-assessment team refused to divulge to me what wrongdoing I was even accused of, and why they were interrogating me. They required me to comply in answering all of their questions, but they wouldn't answer mine. They thought that they could cover up all of the details of the investigation from me.

    Well, now, things are changing. I found out about a California law, California Labor Code Section 1198.5. This statute says: "Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee." How utterly serendipitous and applicable to my situation! Thus, I have written a letter to my now-former employer, requesting a copy of all of their records about me that are covered by that statute. As part of the request, I have demanded all of the records of the employer's threat-assessment investigation of me.

    I feel that the records will help me to prove that the investigation was discriminatory based on the threat-assessment team's perception of me as having a mental-health disability, that the interrogation was a mental-health examination barred by the Americans With Disabilities Act, that I was harassed on a disability basis in violation of the California Fair Employment and Housing Act, and that adverse employment action was threatened against me for lawful off-duty conduct that occurred outside of the workplace in violation of the California Labor Code Sections 96(k) and 98.6. I believe that the records will support me in making corresponding regulatory complaints against the employer.

    California Labor Code Section 1198.5 has exemptions for certain kinds of employers and employment situations, but many people are covered by it. I would argue that a threat investigation of an employee is a "grievance concerning the employee" under the language of the statute. An "investigation of a possible criminal offense" is exempted by the statute, but in my case, I hadn't even done anything criminal.

    I wanted to share this in case it might help anyone else out there experiencing a similar situation. Although I'm not a lawyer and this is not legal advice, anyone in California who is subjected to a threat investigation by their employer like I was, and who gets denied due process such as being given essential details of the investigation (what you're accused of, etc.), should look into utilizing California Labor Code Section 1198.5. If your employer and your employment situation are covered, then write a letter to the employer requesting all of the covered records including those of the threat investigation. Be aware that you may have to pay for copying and postal costs.

    I bet that my former employer didn't see this coming -- that is, me realizing what my rights are and forcing them to pony up all of the investigation records that they thought they could cover up from me! I am interested to see whether and how they comply...
     
  2. adjusterjack

    adjusterjack Super Moderator

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    What will you do if they don't comply?
     
  3. a012

    a012 Law Topic Starter New Member

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    If the employer doesn't comply, then I should be able to report them for a criminal infraction and get them fined for a paltry $750, and I can also sue them for injunctive relief to make them comply, with costs and reasonable attorney's fees being awarded.
     
  4. hrforme

    hrforme Active Member

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    I doubt there will be anything in the file that you will be able to use. Employers are responsible for investigating claims and yes that includes asking you questions. They do not have to disclose who called in the complaint or what it exactly was. That might actually be redacted from your file (at least the complaintant's name).

    What adverse action did you experience -- were you demoted/terminated etc for this issue?
     
  5. Tax Counsel

    Tax Counsel Well-Known Member

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    Don't get your hopes up that the records you get will do a whole lot to establish all that. Wait to see what you get in response to your request and then see an attorney about pursuing your claims. Bear in mind that for a federal claim of illegal discrimination by an employer you must first file a timely complaint with the EEOC or you will be barred from suing for that violation. As the employment was in California, you would have no more than 300 days from the date of the alleged discriminatory act to make that claim.
     
    hrforme likes this.
  6. cbg

    cbg Super Moderator

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    Did you happen to read section (n) of that law?
     
  7. a012

    a012 Law Topic Starter New Member

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    The statute only allows the employer to "redact the name of any nonsupervisory employee contained" in the personnel records. (See subsection (g).) Thus, I believe that they are required to disclose the record of the complaint and how they handled and investigated it, minus the names of any "nonsupervisory" employees.

    I'll say this for now: The adverse action was the employer's threat-management team forensically interrogating me and requiring me to answer a bunch of questions about matters that were none of their business, that I shouldn't have had to answer. (I have to be careful about how much about the particulars of the situation I disclose online here, though. I still need to keep this anonymous and high-level. Please forgive me for this!)

    Yes! You mean, subsection (n), of course. Thus, it's a good thing that I found out about, and am exercising, California Labor Code Section 1198.5 before I've made any regulatory complaint or lawsuit against the employer. I can get all of the personnel records first, and then file complaints or a lawsuit against the employer. That is, provided that the employer complies with my Section 1198.5 records request, or that I make them comply with the remedies available in Section 1198.5.

    I'm not entirely sure that a regulatory complaint in which a government regulatory agency might sue the employer, as opposed to a lawsuit directly by the employee / former employee against the employer, causes subsection (n) (suspending the right of access to the personnel records) to kick in. Perhaps that is a "gray area" and subject to judicial interpretation; I'm not sure. Regardless, I reckon that I can simply avoid that issue altogether by just getting the records prior to making a regulatory complaint or filing a lawsuit.
     
  8. cbg

    cbg Super Moderator

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    And providing that the SOL hasn't expired.
     
  9. adjusterjack

    adjusterjack Super Moderator

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    You're very naïve.
     
  10. a012

    a012 Law Topic Starter New Member

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    How so? Okay, I concede that the $750 fine is risibly miniscule, and it's up to the government whether or not to prosecute the employer for a criminal infraction for noncompliance. However, there's still the civil remedy of injunctive relief with an award of costs and attorney's fees that subsection (L) explicitly allows me to pursue. What's naïve about that? Am I missing something here?
     
  11. cbg

    cbg Super Moderator

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    Let's cut to the chase here. How long ago were you terminated?
     
  12. hrforme

    hrforme Active Member

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    Generally an investigation alone is not considered an "adverse action" --https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#B._Materially

    an employer has to balance a complaint/threat against your personal rights and a court will see that..... and in this day and age employers MUST take threats seriously unfortunately. The person you should have a beef against is the person who called in the complaint -- but any action on your part will make it look as if they were correct....

    and I agree with cbg about questioning how long ago this all happened?
     
  13. a012

    a012 Law Topic Starter New Member

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    Suffice it to say that I am within the timelines.

    And, yes, threats should be taken seriously and investigated. However, I had not even done anything wrong nor made any threats. Someone just had "an axe to grind" against me, and somehow induced my employer's threat-management team to investigate me in bad faith.

    I think that there are essentially two "pieces" to this matter: one is my right to obtain the records of the threat investigation, and the other is the discrimination that I suffered and the wrongfulness of the threat investigation. Even if the employer feels justified in having conducted the threat investigation, my understanding is that the only way that they could be exempt from having to produce the records of the investigation to me is if the investigation was "of a possible criminal offense". (See subsection (h) paragraph (1).) Otherwise, I believe the employer must produce the records of the investigation to me, with the names of any nonsupervisory employees redacted if they wish.

    I just think it's so great that we have California Labor Code Section 1198.5, and that it was passed and amended to its current form. It makes things so much fairer for employees and former employees against whom their employers have asserted any grievances, in giving the employees and former employees access to the personnel records about those grievances. This way, we (current and former employees) can make the employers be transparent with us, and the employers can't just keep us "in the dark" in their handling of such grievances. I know that, politically speaking, lots of people complain that California is tough on businesses with legal and regulatory burdens, but, IMHO, this particular statute is really great legislation conferring an important right on California's workforce. I am very pleased that I found out about it and that it is ostensibly helping me. I really hope that this online discussion thread helps other Californians out there who may be experiencing similar situations. If I prompt at least one other person out there reading this to make their own request for personnel records under California Labor Code Section 1198.5, I will have a good feeling. :)
     
  14. hrforme

    hrforme Active Member

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    I still think you are going to have a really hard time with proving "to investigate me in bad faith" -- it's going to be hard to prove illegal discrimination if they have proof that they investigate ALL threats equally using the same process. Since they seem to have a "threat assessment team", i'd say it's more common there than at many other employers. That's the part that I think you are going to have the hardest time overcoming, not the one about accessing your personnel files and any documentation of this investigation. They dont' have to turn over any other investigation files to you or even tell you how many other threats they have investigated....they might do so in the employer response to the EEOC (or other legal bodies where you have filed a complaint).

    I'm glad you are thinking that you are helping others out by posting the fact that employees can access their personnel files. I've never had an employee ask where we haven't sat down and gone through and shown them what is in it ..it's always a lot less than they think is in it.

    I hate that you assume employers are out to get employees..... To me it sounds like you have a huge chip about the whole situation ...but good luck in your legal process. I'd be interested to see how far you get....
     
  15. cbg

    cbg Super Moderator

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    CA is hardly the only state that has such a provision, btw, and the information is not exactly hidden away.
     
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