Investigative Interviewing: Psychology, Method and Practice

by Ferraro (CPP, SPHR), Eugene

  It should be noted, however, that the courts have generally held the reason-

  able escorting of employees off premises and searching of their possessions are not defamatory acts. 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.108 In Rolsen, a store loss prevention manager and detective escorted an employee, who was eating lunch in the mall,

  through the mall and through the store where she worked.109 Many employees in

  the mall and store knew the loss prevention staff even though they were nonuni-

  formed. She was interviewed for subjected theft of a watch that she wore to lunch, suspended, and escorted off the property by the human resource manager and store detective. Later that evening she was fired. She was kept under surveillance when she returned that night to pick up her possessions. She sued, in part, claiming defamation based on this conduct. The Ohio Court of Appeals held the security

  and management staff did not act in an outrageous manner to support a claim

  that she was defamed. The rationale behind this and other similar decisions is the court’s view that the reasonable escorting of employees offsite and the inspecting of employees’ packages as common security practices do not infer the employees were engaged in criminal conduct.

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  7.9.5 Duty to Investigate an Alibi

  The alleged failure to verify an alibi is in actuality an allegation the fact finder was negligent in conducting the investigation. As discussed earlier, the majority of courts are reluctant to create a new tort action for negligent investigation. Such a tort action conflicts with the widely accepted doctrine of employment at-will. In addition, many other tort actions are available to plaintiffs who allege wrongful investigator conduct, including defamation, malicious prosecution, emotional distress, and wrongful discharge.

  Nonetheless, as a practical matter, fact finders should be sensitive to the need to conduct additional fact finding when subjects offer reasonable alibis or verifiable information. The failure to do so may not expose an investigator and employer to new liability, but may add validity and strength to other claims for defamation, emotional distress, wrongful discharge, and malicious prosecution. A failure to conduct further reasonable inquiry also may lend credence to a plaintiff’s claim for punitive damages based on the reckless or malicious conduct of the investigator.

  For example, the court, in Mendez, held an employee accused of theft was defamed by the company, an alcohol beverage distributor, when the plant manager, at the direction of the company president, fired the employee for theft and advised the employee’s supervisor and union steward.110 Prior to firing the employee, the president, on his way to breakfast, drove by the plant before it opened and saw the employee, a janitor, loading a box into the trunk of his car. The box was a type used by the company. After breakfast, the president told the plant manager he had observed the employee stealing and to “take care of the matter.”

  Hereafter, the facts are in dispute. The employee claimed he was cal ed by the plant manager to the president’s office and told he was being fired for theft. He further stated that he attempted to explain he took an empty box from the trash to hold the tools in his car, and he offered to open his car to be inspected. The executives declined. In contrast, the plant manager stated he fired the employee shortly after leaving the president’s office, and it was sometime afterward that the employee offered to have his car searched. Regardless of the sequence of events, without any further investigation, the employee was discharged per company policy. The plant manager told the reason why to the supervisor and union steward. The employee sued the president and company for defamation. The jury found the president had not defamed the employee, but the company did. The company appealed on the grounds the verdicts were irreconcilable.

  The Appeals Court of Massachusetts affirmed judgment for the plaintiff

  employee. It held both the president and plant manager were privy to discuss the sensitive allegation, but it went on to state:

  We think that the evidence warranted a finding that broader dissemi-

  nation of the charge against [the employee] without an effort to verify

  its truth, in circumstances where verification was practical, amounted

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  to a “reckless disregard” of [the employee’s] rights and of the conse-

  quences that [might] result to him.

  The conditional privilege to disseminate a serious charge may be

  lost, not only by knowledge of its falsity, but also by reckless disregard

  whether it is true or not. Reckless disregard does not necessarily imply

  that the charge has a flimsy base. Here, clearly, it did not. Recklessness

  can also be shown by a failure to verify in circumstances where veri-

  fication is practical and the matter is sufficiently weighty to call for

  safeguards against error.

  Further, as discussed earlier, when an employment relationship is not at-will, the duty to verify an alibi or other evidence favorable to a subject might be implicit in a contractual relationship such as a collective bargaining agreement. Likewise, there might be an implicit duty to verify alibis and other information in select statutes and regulations, such as antidiscrimination laws. The duty to investigate an alibi may include the obligation to properly document it as well. In Tenold, the Oregon Court of Appeals awarded about $2.5 million against the defendant for malicious prosecution, defamation, and emotional distress because, in part, the security staff did not properly report plaintiff’s alibi to upper management or authorities.111

  7.9.6 Allegations of Discrimination

  The potential for employees to claim discrimination raises other management

  investigative issues. For example, assume a subject employee claims he is the victim of discrimination because his conduct is no different from the conduct of other employees. Notice the subject did not claim innocence, but merely that others have engaged in similar conduct without being confronted or disciplined. How should

  an employer handle this allegation? Should the employer ignore or investigate the allegation? Should it continue to move forward with the investigation and corrective action, and treat the allegation as grounds for a separate investigation? Or, should the employer delay corrective action and conduct further investigation of the allegation?

  There is no simple answer. The decision must be made on a case-by-case basis

  by weighing the totality of information available. Regardless, when counterclaims of discrimination or similar claims are made, employers must recognize that the dynamics of an investigation may have changed and it may well be the company

  that will have to show it acted reasonably (e.g., it had a legitimate business reason for taking corrective action). A legitimate business reason may include the duty to investigate an alibi or other relevant information before taking the investigation further.

  Nonetheless, employers and investigators should be cautious not to feel com-

  pelled to investigate every conceivable piece of evidence regardless of how remote.

  For example, in Stockley, the court refused to find a manager was defamed in an

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  internal investigation when the company allegedly failed to interview a witness favorable to him.112 The court noted the company had interviewed approximately

  20 other persons. Relevant factors in deciding when a reasonable investigation

  has been conducted include the status of the employee (at-will versus employment contract), the possibility of an implicit statutory or regulatory duty, the applicable burdens and standards of proof, the thoroughness of the current investigation, the strength of the existing evidence, the ease and convenience of follow-up investigation, and similar facto
rs.

  7.9.7 Admissible Admissions

  The admissibility and evidentiary value of any signed admission may be challenged in a courtroom of law. In order to be admissible, a signed admission must be made knowingly and voluntarily without undue duress, coercion, threat, or promise. A court may exclude an admission or admission that was obtained by duress, deceit, or false promise. Even if admitted as evidence, a jury may give little credence to the admission if it feels the plaintiff signed it as a result of abusive interrogation tactics, such as the interviewer yelling, threatening, intimidating, demanding an admission, or even dictating the wording of an admission. Because an admission may be extremely damaging to an employee’s case, interviewers should assume all plaintiffs will challenge the admission or credibility of their admissions.

  A coerced admission may actually backfire on the investigator. In DeAngelis, the plaintiff, a 17-year-old cashier, sued her employer for false imprisonment.113 Based on the accusation of another employee who claimed the two split a false refund, the loss prevention district manager interviewed the employee for four hours in the evening. During the interview, the plaintiff “was lectured about theft, shouted at, frightened, charged with theft, and forced to admit to a crime she did not commit.”

  The New Jersey Superior Court, Appellate Division, expressed its view of the investigator’s conduct and the value of the admission when it stated: “The coerced false admission, the evil that concerned the Miranda court, evidences the outrageous

  nature of defendants’ conduct.” The appeals court affirmed punitive judgment for false imprisonment.

  There are many factors that influence the admissibility and credibility of admissions, including age (e.g., youth and old age), experience, language skills, mental health, intelligence, conduct, and even requests of an employee. The number of

  management and investigative staff present, demeanor of the investigator, seating arrangements, location and room conditions, time of day, length of interrogation, breaks, and communications with outside parties also may be factors. An admissible and credible admission is the product of a reasonable investigative environment and process. The process may not be duress free, nor should it include undue coercion, trickery, or false promises.

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  Tip: Investigations can take quick turns. An alleged failure to investigate an alibi, a discrimination claim, or an allegation of a coerced admission can undermine the credibility of a fact finder and the investigative findings. Be professional, be prepared, be objective, learn the facts, document the facts, report the facts, and let the facts speak to the allegations.

  7.10 Claims Arising from Employee

  Disciplinary Actions

  Liability risks associated with the discipline or corrective action phase of the investigative process include the continuing risks of defamation (and the newly established risk of self-published defamation), emotional distress, wrongful discharge, and malicious prosecution. In addition, fact finders must be prepared to meet the evidentiary burdens of arbitration, unemployment, and workers’ compensation hearings.

  7.10.1 Defamation

  Employees may try to claim they were defamed based on false and excessive pub-

  lication internally within a company and for false and derogatory reports made

  externally to outside parties, such as the police, unemployment boards, workers’

  compensation commissions, and media. However, as noted earlier, internal com-

  pany discussions and reports regarding employee misconduct are usually protected by the intracorporate publication rule or a conditional privilege. Remarks and

  documents provided to government agencies are usually viewed as absolute or conditional privileged communications. Intraorganizational and conditional privileges may be lost if a communication is not made in good faith (e.g., communications

  made with malice or reckless disregard for the truth of the matter) or if communicated to a disinterested party. Not to be overlooked, alleged defamatory comments must first be published.

  In Chappelle, the defendant company initiated an investigation of an employee based on an unusual pattern of no sales and voids.114 He was interviewed for slightly over one hour by a regional loss prevention investigator with the store’s loss prevention manager as a witness. He was advised the meeting was voluntary and that he was free to leave at any time. The door was left unlocked. The subject verbally confessed, signed a promissory note, and wrote the following admission:

  Over the last 5 or 6 months I have rang 5 transactions where I have

  rang the transaction for myself in order to generate a receipt so I could

  leave the store with unpaid merch[andise]. The approximate loss to

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  Robinsons May by doing this is 500 dollars. I knew what I did was

  wrong[,] so I am willing to pay back the company for the loss. I am ter-

  ribly sorry for what I have done and feel terrible[,] that is why I feel it is

  right to pay this back to the company.

  After he affirmed his admission with the human resource manager, his employ-

  ment was terminated. He filed suit, in part, for defamation. The plaintiff alleged he was defamed when an investigative report was forwarded to the Store Protection

  Association. The trial court held the evidence of defamation was insufficient to send to a jury and granted nonsuit in favor of defendant store. The plaintiff appealed.

  The Appeals Court of California noted: “Here it was uncontroverted that appel-

  lant stole merchandise. The only dispute was the amount taken.” It stated: “The trial court ruled that appellant failed to meet his burden of proof for defamation.

  We agree. Appellant claimed that an internal case report was forwarded to the

  Store Protection Association, but there was no evidence that defendants actually transmitted the report. Defamation requires a publication.” The trial court further ruled that the claim for defamation “is barred by the defenses of truth and qualified privilege. It did not err. Truth is an absolute defense to defamation.” The Appeals Court of California affirmed judgment for defendant merchant.

  Crump, as noted earlier, illustrates the need for employers to be careful about using unsubstantiated conclusions in internal discussions and reports.115 Crump was the warehouse receiver who was terminated for taking defective goods home in violation of company policy. He successfully sued for defamation based on the allegation that he was called a “thief” in an internal meeting involving the warehouse director and two loss prevention personnel. Further, in two postincident reports, he was labeled a “problem employee” despite the fact he had been with the company

  for 18 years and had no other personnel actions taken against him. The Supreme

  Court of Vermont affirmed judgment against the company. It found the company

  lost the intracorporate publication privilege based on evidence showing a “reckless disregard for the truth or … ill will in violation of the plaintiff’s rights.”

  In Present, the plaintiff, a brochure production manager, was terminated after a thorough internal investigation initiated by his new director based on complaints of the manager’s subordinates.116 Separate employees explained how the plaintiff divided large vendor invoices into smaller invoices to bypass audit controls, took a leather jacket, developed personal film at company expense, and directed a subordinate to have a vendor buy the plaintiff a $900 watch and bill it to the company.

  The vendor confirmed it had done so for fear of losing business. After the director made his report, in-house legal counsel reinterviewed and took affidavits from the parties. The plaintiff was confronted. He offered no reasonable explanation and was suspended. After two other vendors confirmed that they falsely billed the company to cover for items they bought the plaintiff, the company terminated the plaintiff’s employment. Corporate security and internal audi
tors then conducted independent investigations. Security presented its findings to the police. The plaintiff was

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  charged with seven misdemeanors. He was acquitted on one count and the jury

  could not reach a verdict on the other six charges. The district attorney dismissed the charges rather than retry the case. The plaintiff filed suit for defamation and malicious prosecution (to be discussed later).

  In part, he claimed the employees and vendors lied and defamed him, and the

  company defamed him when it reported the allegations to the police. The trial

  court denied defendants’ motion for summary judgment. The Supreme Court,

  Appellate Division, New York stated:

  As defendants asserted in their summary judgment motion, all of the

  challenged statements are undoubtedly covered by a qualified privilege.

  This being the case, it was incumbent upon plaintiff to raise an issue of

  fact as to whether defendants acted with constitutional or common law

  malice, which he failed to do.

  A good faith communication upon any subject matter in which the

  speaker has an interest, or in reference to which he has a duty, is quali-

  fiedly privileged if made to a person having a corresponding interest or

  duty. The common interest privilege covers statements by employees

  to management about another employee’s job-related misconduct. The

  same is true of statements by an outside vendor or independent contrac-

  tor. This qualified privilege also extends to reports to the police or the

  district attorney’s office about another’s subjected crimes. If the person

  passing on the information has a good faith belief in its truth, he is

  shielded from liability for defamation, even if a more prudent person

  would not have reported it or the information turns out to be false.