In Spielbauer v. County of Santa Clara, 45 Cal.4th 704, cert. denied (June 22, 2009), the California Supreme Court reversed the lower court and affirmed the general rule that public employers have the right to compel employees to participate in interviews during investigations, and the employers may use a threat of discipline to compel the interview by the employee, so long as the employee has not been required to waive his Fifth Amendment privilege against self-incrimination. The Court of Appeal had held that an employer must secure a formal grant of criminal immunity from the local prosecuting agency before requiring an employee to answer questions about work-related misconduct. But the Supreme Court of California disagreed, and instead held that, in the public employment context, an employee may be compelled under threat of discipline to answer questions about the performance of his or her duties, so long as the employee is not required to waive any right against self-incrimination.

In such a circumstance, the employee’s statement cannot be used against him in a criminal proceeding and will be excluded from evidence. This rule of excluding such evidence is based in part on a public policy that believes public employees owe unique duties of loyalty and trust to their employers and the public at large and public entities must be able to promptly investigate and remedy breaches of such trust. The Supreme Court found this exclusionary rule sufficient to protect the interest of the employees without overburdening the employers. Therefore, public employees should be careful about refusing to answer questions about performance of their official duties when they are given assurances by their employer that such statements will not be used against them in future criminal proceedings. Refusing to participate in such investigation or interviews may result in discipline or termination.