In conclusion, the courts have been reluctant to recognize a separate cause of
action for negligent investigation when plaintiffs are at-will employees and where other remedies are readily available. However, employers and investigators must remain sensitive to the fact that there may be an explicit or implicit duty to investigate under certain statutes and regulations, contracts of employment, and common law torts for negligent hiring and supervision.
Tip: Failure to conduct reasonable investigations might lead to lawsuits for negligent hiring and supervision, and increase the risk of defamation, emotional distress, and other tort claims.
7.9 Claims Arising from Employee Interviews
The verification and analysis phase is still an inquiry phase, but it is different in the sense that it is based on previously gathered information and its primary focus is on the subjected wrongdoers. Before conducting investigative verification interviews with employee subjects, fact finders need to understand the following issues:
Constitutional warnings
Labor law right of representation
False imprisonment
Assault and battery
Defamation
Emotional distress
Admissibility of admissions
Further, fact finders should be open-minded and recognize that the beginning
of the verification process does not necessarily mean the fact-finding phase is completely concluded, for any verification process has multiple possible outcomes. It may not provide any additional material and relevant information; it may produce evidence that confirms known information; it may provide information that contradicts known information; it may provide information that may or may not need further investigation or corroboration; and it may provide a combination of the aforementioned outcomes. Investigators must be sensitive to the possibility that further fact finding may be necessary after conducting verification and analysis investigative interviews. Since the first six issues listed have been previously discussed, generally only the key points will be summarized here.
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7.9.1 Constitutional Warnings
Generally, as noted earlier, private sector investigators acting as private parties in private matters are not required to advise employee subjects of the constitutional Miranda rights to remain silent and to legal counsel. As the Court of Common
Pleas of Pennsylvania stated in Green, “… the overwhelming authority from other jurisdictions supports the position that ‘Miranda’ warnings need not be given by a private security officer prior to questioning a subject taken into custody and the guarantees of the Fifth Amendment are intended as limitations upon governmental activities and not on private individuals, then the ‘Miranda’ warnings need not be given by persons other than governmental officials or their agents.”95
Although it happens infrequently, if fact finders operate as agents of or jointly with law enforcement, the courts may find their conduct to be state action and
impose constitutional protections.
In Tarnef, the Supreme Court of Alaska held that a signed admission obtained by a private arson investigator working for an insurance company was governed
by the Fifth Amendment right against self-incrimination.96 Prior to interviewing the subject, who was in prison for another crime, the arson investigator met with the authorities and promised to provide them a copy of any statement obtained.
The authorities aided the private investigator in gaining access to the correctional facility. The subject signed a five-page admission. Immediately afterward, the investigator reported back to the authorities. The arson investigator, who was a former police officer, claimed he advised the subject of his constitutional rights, but the waiver was defective because it did not contain this notice. In the words of the court, “… we hold under the facts of this case that [the insurance arson investigator] was required to give a Miranda warning and secure the defendant’s waiver of rights before undertaking interrogation of appellant.” Note, unlike most workplace investigations, here the subject was clearly in custody.
In Elliott, a hospital security officer, who was a retired city police officer, was dispatched to a car in the hospital parking lot that was reported to contain a gun.97
He was told the city police also had been dispatched. The security officer was the first to arrive on the scene. He observed the gun in the locked car. At the same time, the vehicle owner, who was also a security officer, arrived. The security officer asked the owner if it was his car and gun. The owner replied in the affirmative, opened the car, and gave the gun to the security officer. At that time, a police officer arrived and the hospital security officer turned the gun over to him. The police officer asked the owner if it was his gun and whether he had a permit. The owner replied it was his gun and he did not have a permit. The police officer arrested him. The Supreme Court, Queens County, New York, held the hospital security officer’s conduct was governed by the constitution because he acted in “coordinated private–public law enforcement … investigation of a crime incident. The parking lot investigation and response here, by the hospital security officer, did accommodate police objectives.”
However, the court found the owner voluntarily turned the gun over to the security
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officer. It also ruled his statements were admissible in court because the owner was not in custody at the time he was questioned and the security officer’s questions were routine field investigative inquiries. Therefore, the hospital security officer was not required to advise the owner of his Miranda rights.
7.9.2 Assault and Battery
An assault occurs when a party, who has apparent capability, creates a reasonable apprehension in the mind of another of an imminent and offensive forthcoming
touching. For example, if an investigator made verbal or physical gestures to intimidate or threaten an employee during an investigative interview, this conduct may be sufficient to support a claim of assault. A battery is an intentional touching that is highly offensive in nature to a reasonable person. There is no requirement that there be physical injury. The injury is the offensive touching. If an investigator bumped, pushed, jabbed, grabbed, or threw an object at an employee, a court might find
such conduct sufficient to support a battery claim. Most workplace assault and battery claims involve the shoving or pushing of employees into meetings or the grabbing and holding on to prevent employees from leaving investigative interviews. It should be noted, too, some courts use the terms assault and battery interchangeably.
In General Motors Corp., the security staff at a plant entrance stopped an employee, who was subjected of stealing small radio components, in order to question him.98 The employee testified that an officer reached out and grabbed his arm and he pulled it away; a second officer grabbed his arm and he twisted away again; and he was finally detained “by a number of guards, ‘and, you know, like nudging me through the door or shoving me,’ I guess what you call nudging or shoving,
blocked his path.” The security supervisor testified that he asked the employee to enter the security office; the employee responded with profanity and protests that the company was calling him a thief; that neither he nor any of the officers touched the plaintiff; and that it was against company policy to do so. The trial court found the plaintiff’s testimony to be more persuasive and found that the officers assaulted the plaintiff. The Court of Special Appeals of Maryland affirmed both compensatory and punitive damages.
In Blailock, the Supreme Court of Mississippi ruled an employee could sue her employer and supervisor for assault and battery based on the allegation
that the employee was grabbed on the arm and pushed toward an office by
her supervisor who wanted to conduct a disciplinary interview.99 Similarly, in
the previously discussed case of Warren, the Court of Civil Appeals of Texas affirmed an assault and battery claim ag
ainst a defendant investigator when he
reached out and grabbed the plaintiff’s arm to prevent the plaintiff from leaving the interrogation.100
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7.9.2.1 Sympathetic Touching
The potential liability for assault and battery raises the issue of whether an investigator should reach out in sympathy and touch a subject during an interview, such as patting a subject’s hand, knee, or shoulder. Indeed, touching may be a powerful means of communicating empathy and willingness to listen. But, it also may be
perceived differently. The key issue may not be what the investigator intended, but how the employee perceived the touch. When an investigator touches an employee, even with a sincere intent of expressing sympathy, in a manner that goes outside of normal business physical contact, such as a handshake, the employee may interpret or at least allege that it was an unreasonable and offensive touching amounting to battery. Investigators should carefully weigh the risks.
7.9.3 False Imprisonment
False imprisonment, as defined earlier, occurs when one person denies another by verbal or physical means his voluntary freedom of movement. For example, in the previously discussed case of Warren, the investigator falsely imprisoned the plaintiff when he denied her requests to leave and grabbed her arm to prevent her leaving. In Caldor, a juvenile employee was detained in an interrogation room with two investigators.101 One stood behind the employee blocking his access to the
door. When he attempted to leave, he was told to “sit down or we’ll help you sit down.” When he attempted to use the phone in the room, he was told “to put the
damn phone down.” The interrogation lasted from approximately 6:45 p.m. until
sometime past 11 p.m. The Court of Appeals of Maryland affirmed judgment for
false imprisonment.
In Hampton, one investigator bumped the employee while another investigator stood in front of the door to prevent him from leaving.102 The Court of Appeals of Georgia noted that a false imprisonment did not have to be by physical restraint, but also could be by “words, acts, gestures, or the like, which induce a reasonable apprehension force will be used if plaintiff does not submit.” The appeals court reinstated the claim of false imprisonment and derivative claims for punitive damages and attorney fees.
In Smith, a purchasing employee went skiing while claiming to be on a vendor call that had been canceled.103 She was interviewed for approximately three hours by two company investigators for vacation abuse under company policy. She was
given a notice that she was not supposed to discuss the investigation with anyone other than authorized parties. Smith denied the abuse and noted that upon her
return to the office she had sent a note to payroll to record the day as a vacation day.
About two weeks later, she had lunch with a co-worker who was also a subject of the investigation and the vendor they were to visit, and they discussed the investigation.
The next day she was reinterviewed and she walked out of the meeting. About a
month later, the company gave her the choice of resigning or accepting a demotion
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for violation of the vacation policy, failing to cooperate in the investigation, and discussing the case with unauthorized persons. She accepted the demotion and
filed suit against the company. In part, she claimed the two investigators falsely imprisoned her because one of the investigators “yelled at her and repeatedly called her a liar … slammed the note on the table at one point.” The United States District Court thought the alleged conduct of the investigator was “disagreeable,” but noted Pennsylvania law required there be “verbal threats” if there was no violence in the confinement. Because the room was unlocked, she was never threatened or physically restrained, never asked to leave, and had walked out of the second interview, the court granted summary judgment for the company.
7.9.3.1 Economic and Moral Compulsion
An interesting issue is whether an employee may be falsely imprisoned if he stays out of concern about losing his job (economic necessity) or feels a need (moral compulsion) to stay and clear his name. Although one’s reputation is important and the loss of a job may inflict serious economic harm, the general rule is that these factors alone are insufficient to support claims of false imprisonment.
For example, in Wright, a loss prevention agent interviewed an employee subjected of underringing items.104 The employee never attempted to leave and he was never threatened. He felt compelled to stay to clear his name and he was concerned that if he left he might be arrested. The U.S. District Court rejected these facts as being sufficient to support a claim of false imprisonment and granted summary
judgment for the defendant.
In Johnson v. United Parcel Services, Inc., an employee was interviewed for approximately three to four hours concerning theft and drug dealings.105 He was not physically detained, verbally threatened, or confined in a locked room. Nor did the investigators act in any way to block an escape. He stayed based on “a statement leading plaintiff to fear that he might lose his job should he leave.” He filed suit, in part, for false imprisonment. In granting summary judgment for the defendant corporation, the U.S. District Court stated, “The restraint that resulted simply from plaintiff’s fear of losing his job is insufficient as a matter of law to make out a claim of false imprisonment.”
7.9.3.2 Precautionary Protocols
Fact finders can easily decrease the risk of successful suits for false imprisonment by taking certain precautionary measures. They should be able to show the employee was given notice that he was free to leave at any time; the employee was seated closest to the door and had unobstructed access to the door (provided safety of the interviewer is not an issue), which was unlocked; there were not an excessive number of company representatives present; and the investigative interview was
conducted in a reasonable manner and voice without threats, yelling, profanity, and
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similar conduct. It is important that an investigator properly document an interrogation, not only the content of the interview, but also the process, such as room, location of parties, start and end times, persons present, breaks and amenities, and other material information.
Tip: When conducting an investigative interview, the fact finder should allow the employee unobstructed access to the door, speak in a moderate tone, and avoid physical gestures that infer the employee is not free to leave.
7.9.4 Defamation
Defamation, as described earlier, refers to a false statement of fact published by one party to a third disinterested party that impugns the business, professional, or community reputation of another. Libel refers to written defamation, and slander refers to defamation by the spoken word or conduct. Defenses to defamation lawsuits
include truth, nonpublication, absolute privileged communication, and qualified/
conditional privileged communication.
7.9.4.1 Precautionary Protocols
In order to minimize their risk exposure, fact finders need to exercise prudent common sense prior to, during, and after investigative verification interviews. In the preinterview stage, requests to meet with subject employees should be neutral or nonaccusatory in nature to minimize the risk of premature publication of the accusations to disinterested parties. Hallway, lunchroom, and other public area conversations regarding the investigations and with subjects should remain neutral in nature. In the interview phase, whenever reasonably possible, investigative interviews should be conducted in private offices or work areas where other disinterested employees cannot overhear the discussions. The number of company
agents present during an investigative interview should be restricted to persons who serve a necessary function, such as the investigator and witness, to minimize the risk of excessive publication.
In the postinterview phase, notes, written reports
, and oral briefings should similarly be shared with only interested parties. This often includes the employee’s superiors and select staff, such as human resources and security, if necessary to perform their duties. Investigators should be careful to avoid personal conclusions (which is different from accurately reporting and properly crediting statements of persons interviewed) and to use terms in all reports that accurately describe the subject’s conduct and that can be proved. This will reduce the risk of a court finding an investigator acted with malice and lost either the intraorganizational or qualified privilege defenses to communicate derogatory information with interested parties.
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7.9.4.2 Escorting of Employees
Fact finders should conduct themselves in a normal, reasonable manner when
escorting employees to and from investigative interviews, off organizational property, and when inspecting employee possessions. The following cases highlight a few of the risks.
In Uebelacker, a manager and two large subordinates confronted an employee in his office cubicle.106 The manager told the employee that he was fired and to clean out his belongings. When the employee attempted to go to the personnel
office, the manager blocked his path, grabbed him by the arm and spun him
around, and later pushed down the phone disconnect button to prevent him from
calling the personnel office. The manager even refused the employee permission
to use the restroom. Subsequently, he relented, but had the employee escorted.
The encounter lasted approximately an hour and was witnessed by co-workers.
The Court of Appeals of Ohio affirmed judgment for false imprisonment, emo-
tional distress, and defamation.
Similarly, in Caldor, the Court of Appeals of Maryland affirmed a store security manager, who lacked probable cause to arrest, defamed a juvenile employee who he had handcuffed and paraded through the store before patrons and other employees.107 If an employee is to be handcuffed, a practice that has liability risks, the investigators should have probable cause to arrest or lawful need to restrain (e.g., the employee was violent).
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