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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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I have been wrongfully accused of an unspecified sexual advance

Customer Question

I have been wrongfully accused of an unspecified sexual advance against a subordinate. What are my rights? Do I have a right to request what is being placed in my HR file? Do I have the right to submit a response? Do I have the right to request a third-party investigation of the allegation? I feel rail-roaded.
Submitted: 4 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 4 years ago.
Hello and thank you for entrusting me to answer your question.

I am very sorry to hear that you are the subject of these false allegations.

An accused's rights in this situation are typically quite limited, at least at the initial investigatory stage of the complaint. An employer is not required to immediately divulge the full detail of the allegations against the accused.

While an accused does not have the immediate right to confront his or her accuser, the accused does have the right to inspect his or her personnel file, which would include any previous reprimands, discipline, or reports that your employer has kept in the course of employment.

Inspections must be allowed at reasonable times and intervals. To facilitate the inspection, employers must do one of the following: (1) keep a copy of each employee’s personnel records at the place where the employee reports to work, (2) make the personnel records available at the place where the employee reports to work within a reasonable amount of time following the employee’s request, or (3) permit the employee to inspect the records at the location where they are stored with no loss of compensation to the employee. (Labor Code Section 1198.5)

You should also know that California law requires an employer to "take all reasonable steps necessary to prevent discrimination and harassment from occurring." (Cal. Gov. Code, § 12940(k); Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1146, 1174 (1998).) If an employer fails to investigate a claim for harassment--even one that does not appear legitimate--it may become vicariously liable for the harassment. This means that simply because you are being investigated does not mean that there is legitimate evidence that he has done something wrong. The employer may simply be exercising due diligence, as required by law.

For individuals who have been falsely accused, it is probably within their best interest to cooperate fully with the investigation, as they only stand to gain illumination of the truth.

However, an employer is free to terminate an employee accused of sexual harassment, even if the claim is not legitimate, absent an employment contract guaranteeing the accused employment for a specified period of time. More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other."

If you are terminated based upon false allegations of harassment and can prove that the alleged victim has made false statements about you, you may have a civil claim for defamation for which you can collect damages, including lost wages.

You are generally free to submit a written response to allegations of harassment, and any reasonable employer will read it and give it consideration. You do not have the right to mount a third-party investigation--at least not one that the employer is required to assign any weight to. Of course, you are free to do in your own time what you please, including hiring an investigator for your own personal benefit.

Again, I am so sorry to hear about this situation.

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.
Further to my previous question, should I make a formal request (in writing) to review my personnel file? And if so, do I make the request to the HR staff member or to my boss or to both?
Expert:  Patrick, Esq. replied 4 years ago.
I didn't see that you had posted this here. Please see my response to your other question for the answer. Thanks so much.