If you are an executive facing an internal misconduct investigation in California, your rights come primarily from your employment contract and California employment law, not from the constitutional due process that applies to government proceedings.
Misconduct allegations might involve several types of legal or policy violations, including:
- Financial misconduct
- Accounting and securities violations
- Sexual harassment
- Discrimination
- Retaliation
- Conflicts of interest
- Bribery and corruption
- Breach of fiduciary duty
- Regulatory and compliance violations
- Misuse of confidential information
- Workplace policy violations
If you are being investigated, you should understand your rights and how to exercise them.
Review Your Employment Agreement First
Your employment agreement is the starting point. It may define what counts as “cause” for termination, require the company to give you notice and a chance to respond, and spell out your severance and bonus rights depending on how the matter ends.
In California, you also have a statutory right to inspect and obtain a copy of your personnel file under Labor Code Sections 1198.5. This file can be valuable during an investigation.
The Company’s Lawyer Is Not Your Lawyer
When in-house or outside counsel interviews you, they represent the company, not you. Anything you disclose can be used in the company’s interest, even against you. Never assume the company’s lawyer is looking out for your personal interests.
You have the right to retain your own attorney if you are an executive under investigation. This is important, especially if there is any potential for criminal exposure or personal liability. Your own lawyer can advise you before interviews and protect your interests during investigations.
California is a two-party consent state under Penal Code Section 632, so secretly recording an investigation interview is generally not permitted and should not be attempted without legal advice.
Protection From Discrimination and Retaliation
An investigation cannot lawfully be used as a pretext for discrimination or retaliation. California’s Fair Employment and Housing Act (FEHA) protects a broad range of characteristics and covers more employers than federal law.
In addition, Labor Code Section 1102.5 offers whistleblower protections to employees who report a reasonable belief that the company has violated the law. If you spoke up about wrongdoing, an employer cannot lawfully target you for it. California’s constitutional right to privacy and protections for lawful off-duty conduct may also apply if an investigation reaches into your personal life.
Practical Steps to Protect Yourself
During an investigation, you should take a few careful steps to protect your rights and professional reputation:
- Preserve relevant documents and communications; do not delete anything
- Be truthful in what you say, since dishonesty can itself be grounds for termination
- Request a copy of your personnel file and keep your own notes on the process
- Follow up on any verbal agreements or assurances in writing, so there is a clear record of what was said
- Track key dates and deadlines, including any window you have to respond or to accept a severance offer
- Do not sign any statement or severance agreement before you understand what you are giving up
You should also limit discussion of the investigation to your own attorney and avoid talking about it with coworkers or on any company system.
If you are an executive facing a misconduct investigation in California, speak with an employment attorney before you participate. Call The Armstrong Law Firm for more information.