REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS – Expunging Employee Personnel Files

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If an employer’s unfair practice during an investigatory interview is one material cause of eventual discipline, the proper remedy is to rescind the discipline, purge related records, and make the employee whole, typically while leaving open whether the employer may lawfully re-investigate any alleged misconduct or issue lesser discipline. (County of San Joaquin (Sheriff’s Department) (2018) PERB Decision No. 2619-M, p. 13 & fn. 13; Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 45 & 47-53 (Capistrano).) The primary basis for proving that unfair practices in an investigatory interview materially caused discipline is to show that the discipline was based, at least in part, on information or admissions obtained in the interview, or on employee conduct during the interview. (Capistrano, supra, PERB Decision No. 2440, p. 47.) (p. 5.)