Investigative Interviewing: Psychology, Method and Practice
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Employers should enact corporate codes of ethics, provide all employees appro-
priate training, and provide internal reporting mechanisms for employees to
report concerns, including suspicions of criminal conduct by high-level personnel.
Further, employers should conduct reasonable follow-up investigations when pre-
sented with credible accusations. The failure to implement these countermeasures and the failure to investigate high-level misconduct can expose an organization to severer penalties in the federal courts.
7.7 State Tort Law Issues
The majority of workplace, investigation-related lawsuits are civil tort actions under state law. However, fact finders should be aware that, although very similar in nature, there are variations in the laws of the 50 states, the District of Columbia, Puerto Rico, and other territories. When crossing jurisdictional lines, investigators should be sensitive to these variations.
7.7.1 Assault and Battery
Workplace investigations do not usually involve the use of force by the fact finder.
Nonetheless, if private sector investigators unnecessarily threaten to or use unnecessary or unreasonable force, they may be sued for assault and/or battery.
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An assault occurs when one party creates a reasonable apprehension in the mind of another of a forthcoming, imminent offensive touching. An assault does not require that there be any contact. An assault may be physical, verbal, or a combination of both. A verbal threat combined with apparent capability to hit, slap, shove, or smash, or a similar threat can certainly be sufficient behavior by a fact finder to constitute an assault. Making a fist, glaring, lunging, swinging, grabbing at, and other similar body motions also may constitute an assault. Of course, verbal threats coupled with aggressive body motion make for an even stronger impression of an assault.
Battery is the intentional touching of one party by another that is offensive in nature. The touching may be either directly or indirectly upon the other. For example, it would be battery if a frustrated fact finder directly slapped an uncooperative employee. Likewise, even though the investigator never touched the employee, it would be battery if the investigator kicked the chair out from underneath an uncooperative employee, causing him to fall to the floor.
For example, in Warren, a company security representative and private investigator “interrogated” an employee for failing to properly enter a $1 transaction during an anonymous honesty and efficiency check.44 The two men questioned the plaintiff about the incident and continued to press the issue of whether she had taken other money. They threatened her with arrest if she did not sign an admission with an estimate of the amount she took. They told her the arrest would be an embarrassment for her family, on several occasions refused to let her leave, and, on one occasion, the private investigator grabbed her on the arm to prevent her from leaving. She wrote an admission as dictated by the private detective, but never entered the amount. Later, she claimed she did so under duress in order to be allowed to leave the interrogation.
The Court of Appeals of Texas held the “findings of the trial court clearly establish …
assault and battery as against the defendant, private investigator.”
7.7.2 False Imprisonment and False Arrest
When conducting workplace interviews, fact finders need to be sensitive to the
issues of false imprisonment and false arrest. False imprisonment occurs when one denies another the voluntary freedom of movement. The denial may be by verbal
or physical means.
For example, in the aforementioned Warren case, both of the investigators involved denied the plaintiff’s requests to leave, and the private investigator grabbed her arm to prevent her from leaving.45 Not only did the private investigators commit assault and battery, the evidence clearly showed that both of them falsely imprisoned the employee against her wishes.
False arrest is arrest without legal justification. Whenever there is a false arrest, there is false imprisonment. Workplace investigators rarely make citizen’s arrests of employees. But, nonetheless, they need to avoid creating an impression that the subject is under arrest by claiming to have police authority, stating the subject is under arrest, or unnecessarily restraining the individual.
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7.7.3 Defamation
Defamation is the single most frequently cited complaint in civil lawsuits against employers. A defamatory statement is a false statement of fact published by one party, either by spoken or written means or conduct, to a third disinterested party that impugns the community, business, or professional reputation of another. A
false allegation that a party committed a crime is such a grievous act that it is considered defamation, per se. That is, the remark is presumed to be so injurious to one’s reputation that damages need not be proved.
There are two types of defamatory statements: slander and libel. Slander refers to defamation by the spoken word or conduct. For example, an employee might
claim he was slandered when he was handcuffed or verbally accused of dishonesty in front of co-workers. Further, a subject employee might claim defamation when a fact finder made inquiries of co-workers about him that inferred he was involved in the alleged incident. Libel refers to written statements or pictures that are defamatory. An employee, for example, might claim he was libeled in the fact finder’s report to his employer’s managers.
Defendants may raise several affirmative defenses to suits for defamation. First, truth is a defense as defamation entails the publication of a false statement. Assume an employee was arrested in the workplace and sued for defamation; a showing
that the arrest was lawful would defeat the allegation of defamation. Second, nonpublication is also a defense; in other words, the alleged defamatory statement was never communicated to a third disinterested party. For example, if an investigator accused an employee of selling drugs during an investigatory interview with just the two of them present, in a suit for defamation, the investigator could defend on the grounds there was no publication to a third party. In some states, intraorganization communications (communications within a business) are considered nonpub-
lished on the premise a business is a single legal entity.
The third defense, the one most commonly used in workplace investigations, is
privileged communication. Privileged communications are either absolute or con-
ditional/qualified. As a matter of public policy, to protect the interest of the public at large over the interest of the individual, absolute privileged communications are protected even if false and made maliciously. Statements made in legislative and judicial proceedings usually enjoy an absolute privilege. Assume, at a criminal trial, a fact finder accused an employee of stealing funds or assets, the employee was found “not guilty,” and the employee sued for defamation. Because the accusation was made in a criminal trial, it would be an absolute privileged comment. However, note that there may be other sanctions taken if a witness lies under oath (perjury), lies in an official report (false statement), or maliciously initiates criminal prosecution (malicious prosecution).
Conditional or qualified privileged communications are protected if made in
good faith to an interested party. An interested party, in the context of workplace investigations, is someone who needs to know in performance of his duties. For
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example, if a fact finder told an employee’s superior that an employee was using illegal drugs while on the job, in most jurisdictions, this statement would be considered a conditional privileged communication so long as the fact finder was acting in good faith. But, the statement would no longer be privileged if the investigator told his family and friends (clearly disinterested parties) or acted maliciously (intentionally lied about the truth of the allegation).46
An employer, in Nipper, rece
ived an employee hotline tip that a store manager was flashing a gun, working under the influence of drugs, allowing her boyfriend to stay in the store for hours at a time, and permitting birthday parties in the store.47 A company investigator interviewed store employees based on this tip and a documented $30,000 loss of inventory. The interviews were conducted in a back room with an open door; employees were told the information was confidential and told the scope and nature of the inquiry. After confirming in the employee interviews the information set forth in the hotline tip, the investigator interviewed the manager. After the manager admitted to allowing her boyfriend to visit, bringing a gun to work, and taking medication that made her sleepy, the company terminated her. She sued. In part, she claimed she was defamed when the investigator interviewed the other employees. The Supreme Court of Alabama noted communications between employees acting within the proper scope of their duties “do not constitute a publication.” Here, the investigator was acting within the scope of his employment; he spoke only with employees “only to the extent reasonably necessary to investigate the hotline complaints and the inventory loss.” Therefore, there was no publication and no defamation. It affirmed judgment for the company.
In Gaumont, the Court of Appeals of Ohio held a contract investigator enjoyed a qualified privilege to discuss an employee subjected of theft of company tools with a deputy sheriff from another county.48 The sheriff was an interested party because he had previously investigated a burglary of tools at the employee’s home and the contract investigator wanted to know if the deputy had noticed any company tools during his search of the residence. Of note, the states are split on whether statements made to law enforcement personnel are absolute privileged communications or are conditional privileged communications.49
Defamation lawsuits are sometimes based more on office rumor than the words
or conduct of the investigators. As a rule, companies are not responsible for office gossip and rumors. For example, in Ashcroft, a private duty nurse was arrested in a hospital gift shop for shoplifting.50 She claimed that she lost referral business because of alleged defamatory statements by the security officers. However, she cited “no specific statement published by defendants to her prospective employers.” Rather, she admitted to basing her allegations on speculation and “rumors by way of the grape-vine.” The Ohio Court of Appeals affirmed summary judgment for the hospital.
In Paolucci, the Court of Appeals of Ohio held a nurse discharged for violation of work rules was not defamed when two security officers escorted her off hospital property in plain view of others.51
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Crump is an unusual case that illustrates the need for investigators to be careful not only with whom they speak, but in what they say.52 Crump worked as head receiver for dry goods at the defendant’s warehouse. His job was to verify proper delivery of ordered goods and to reject unordered and defective goods. Rejected goods were to be returned to the delivery driver or placed in the company salvage pile where they might be repackaged or given to the warehouse employees.
Company policy held that if property was removed, the employee taking it had to obtain a property pass signed by a supervisor. The plaintiff had been with the company 18 years when he was terminated for breach of company policy. Specifically, he rejected two cases of breakfast food; the driver refused to take the goods back and told the plaintiff to take them for his grandchildren. The plaintiff offered to share the items with co-employees and kept them by his desk to take home. He
admitted he violated company policy by not placing the merchandise in the salvage area and properly obtaining a property pass, instead he had issued himself one. He sued for defamation on the grounds he was called a “thief” in a meeting attended by the company director of warehousing, director of loss prevention, and a loss prevention specialist. Further, in two written reports prepared after the incident, he was referred to as a “problem employee.” The trial court awarded the plaintiff both compensatory and punitive damages for defamation. The company appealed.
The Supreme Court of Vermont affirmed that the company enjoyed “a condi-
tional privilege for intracorporate communications to protect its legitimate business interests.” But, the court noted this privilege might be lost if the company acted with reckless disregard for the truth or acted with ill will in violation of the discharged employee’s rights. Here, the court affirmed there was reasonable evidence to support the verdict. The court noted the rejected merchandise did not belong to the company, since it did not have to pay for it, therefore, the company’s characterization of the plaintiff’s conduct as theft might reasonably be interpreted by a jury as showing a “reckless disregard both for the truth and for plaintiff’s rights.”
Further, the court noted the company acted outside its privilege when it made an oral report to the security manager for the trucking company and spoke with the driver and another employee of the trucking company.
Tip: Exercise care when communicating the results of an investigation to others.
Prior to dissemination, be certain it is made in good faith, without malice or careless disregard for the facts, and there is a justifiable business purpose for the recipient to know.
7.7.4 Invasion of Privacy
The right of privacy emanates from three sources of law: constitutional, statutory, and common law. Having previously discussed federal and state constitutional
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privacy rights in workplace investigations, this section addresses statutory and common law rights of privacy enjoyed by those in the workplace.
7.7.4.1 State Statutes
State statutes and case law, in some form or another, afford the right of privacy in all 50 states. There are essentially two types of privacy laws: (1) those that protect a general or specific right of privacy and (2) those that restrict different methods of intrusion or investigation. Typically, all of these laws provide individuals with greater privacy rights as against a public entity or other governmental actor, than as against a private employer or nongovernmental investigator. This section focuses on the latter, with an eye toward giving a sense of how privacy statutes vary from state to state.
For example, under the laws of Massachusetts, a person has “a right against
unreasonable, substantial, or serious interference with his privacy.”53 Similarly, Rhode Island by statute guarantees four specific rights of privacy (three of interest here) that are often guaranteed under the common law of other states.54 These rights include the right to be secure from unreasonable intrusion upon one’s physical solitude or seclusion, unreasonable publicity given to one’s private life, and publicity that reasonably places another in a false light before the public.
In Williams, a payroll clerk was terminated after an investigation into the cashing of forged payroll checks.55 The investigation included both private and federal investigators. During the course of the investigation, she was asked to account for her activities on the day when some checks were cashed. She had had an abortion and some
complication thereafter, and this fact came to light in response to this inquiry. She sued under the general privacy statute of Massachusetts. First, she claimed her privacy was invaded by the accusations of theft against her. The court rejected this claim on the grounds the defendants had conducted a good faith inquiry that warranted further investigation. Second, she claimed publication of a private fact. The Superior Court of Massachusetts noted this statute covered the publication of highly personal or intimate information to an employer, but this disclosure had to be weighed against the employer’s legitimate business interests. Here, the court held there was no publication of private fact because it was reasonable for the employer to question her regarding her activities on the day the checks were cashed and the employer had no idea this inquiry would elicit personal information of this nature. The court granted summary judgment to the defendants with regard to all pri
vacy claims.
In California, in addition to a state constitutional right of privacy as discussed earlier, there are numerous statutes that protect specific information. For example, the Labor Code of California provides employers “shall make reasonable efforts to safeguard the privacy of the employee as to the fact that he or she has enrolled in an alcohol or drug rehabilitation program”56 or “has a problem with illiteracy.”57
California (as in many states) also prohibits or restricts certain methods of investigation. For example, the Civil Code of California specifically prohibits the physical
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trespass upon the land of another with the intent to capture visual, sound, or other impressions of the plaintiff engaged in personal or familial activities where the trespass is “offensive to a reasonable person.” The same law also restricts the use of a
“visual or auditory-enhancing device” without any trespass to capture visual or audio impressions of a person engaged in similar activities where the plaintiff had a reasonable expectation of privacy and the attempt is “offensive to a reasonable person.”58
Similarly, under the Penal Code of California, it is a crime to intentionally
amplify or record confidential communications of others without the consent of
all parties, and it is unlawful to install a “two-way mirror permitting observation of any restroom, toilet, bathroom.”59,60 In Cramer, for example, the United States Court of Appeals ruled that federal labor law, LMRA §301, did not preempt the
more than 280 plaintiffs from pursuing their privacy claims under California law against the company for violating state law by installing two-way mirrors and
video–audio recorders in men’s and women’s restrooms to detect drug usage.61
The intent here is not to attempt to cover the multitude of statutes that guarantee general or specific rights of privacy, nor is it to discuss all the different statutes that restrict various methods of gathering information. The purpose is to alert fact finders (and those who employ them) that they need to understand the privacy-related statutes of the jurisdiction in which they operate.