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Discipline and Workplace Rights*
(updated 11/13/09)

Lybarger Rule

Weingarten Rights

Discipline and Appeals

What's a Skelly Hearing?

MOA Rights

City/State Laws/Policies

Insubordination

Lybarger Rights

Garrity Rights

Free Speech Rights

Grievance Process

What is a Lybarger admonishment?

A Lybarger admonishment derives its name from Lybarger v. City of Los Angeles 40 Cal. 3d 822 (1985). In interpreting Government Code Section 3303(e) and (h) the California Supreme Court determined that whenever a supervisor/manager interrogates an employee and (a) it appears that the employee may be charged with a criminal offense as a result of his misconduct, or (b) the worker refuses to answer questions on the ground that the answers may be criminally self-incriminating, the questioning must be preceded by a “Lybarger admonishment.”

The employee must also be told the following:

Among other things, that although the employee has the right to remain silent and not incriminate himself

o (1) his silence could be deemed insubordination, leading to administrative discipline, and

o (2) any statement made under the compulsion of the threat of such discipline (i.e., incriminating statements) could not be used against him in any subsequent criminal proceeding.

Remaining silent:

If the employee continues to stand on his Fifth Amendment right to remain silent in the face of the above admonition, he risks disciplinary action for his refusal to answer. If the worker agrees to answer questions after the above admonition, management can use his answers for administrative purposes – not criminal prosecution.

Remember, before any meeting with a supervisor where the employee reasonably believes discipline may result, a union representative should be consulted, and the right to have one present is guaranteed under the Weingarten rule. (See Weingarten Rights for more information on union representation rights.)

More about the Lybarger court case:

Unlike in the private sector, a public employer questioning employees about a criminal matter implicates their rights to remain silent and not incriminate themselves. In Spielbauer v. County of Santa Clara, the Supreme Court reiterated that this right to be silent is not absolute and is subject to the public employer’s need to promptly investigate allegations of misconduct. In short, the Court held that a public employee can be disciplined for refusal to answer questions if the employer states that the answers will not be used for purpose of a criminal action against the employee.1

In practice, this grant of “use-immunity” is not air-tight and great caution should be applied in any situation where the interviewed employee could face criminal prosecution. While prosecutors would be prohibited from using the actual interview or related notes against the employee, the interview can be used to impeach the employee, if the employee testifies at trial and that testimony conflicts with his/her testimony in the employment interview. Moreover, the police can use the interview to locate independent evidence to support the employee’s prosecution. Though this evidence is potentially subject to exclusion at trial if obtained illegally, it might be difficult to prove the original source of the evidence. For these reasons, depending on the conduct at issue, even if the employer says “your answers won’t be used for purposes of a criminal action against you” a public sector employee will need to decide whether it is better to refuse to answer and face discipline, even dismissal, or to cooperate and risk criminal consequences.

1 The Supreme Court reversed a lower court ruling that the public employer may compel employee answers that may incriminate the employee only after obtaining full prosecutorial immunity for the employee.

See also, Garrity Rights.


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Created 13 November 2009 • Modified 5 December 2009