EMPLOYER DISCRIMINATION; DEFENSES – Misconduct

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An employer does not retaliate against or interfere with employee rights when it conducts an initial investigation of arguably protected activity based upon receiving a facially plausible complaint, provided that: (1) the nature of the complaint legitimately calls into question whether the employee conduct was protected; and (2) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 30-31.) Moreover, during its investigation, the employer must narrowly tailor its questions to the business necessity at hand—investigating a facially plausible complaint—while minimizing, to the greatest degree possible, inquiries that tend to chill protected activity. (See, e.g., William S. Hart Union High School District (2018) PERB Decision No. 2595, pp. 7-8 [employer exceeded scope of permissible inquiry by seeking identity of unit members who attended union meeting and substance of conversations with union steward].) Thus, PERB looks at the specific circumstances not only to determine whether the employer had adequate cause to commence an investigation despite its potential to chill protected activity, but also whether the employer unduly continued the investigation or otherwise violated the MMBA during its course. (Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 4 & p. 5, fn. 6 (Trustees).) While an employer cannot continue its investigation after acquiring information indicating that the alleged conduct was protected, Garcia did now show that SunLine violated this principle. Indeed, Garcia’s failure to cooperate made him less able to provide the investigator with information showing that the MMBA protected his conduct (pp. 24-26.)