LEGAL ISSUES ARISING IN CONNECTION
WITH WORKPLACE INVESTIGATIONS
MARK N. MALLERY
KIESEWETTER WISE KAPLAN PRATHER, PLC
639 LOYOLA AVENUE, SUITE 2550
NEW ORLEANS, LOUISIANA
(504) 638-3840 - Telephone number
[email protected] – email
DENVER 2008
ABA SECTION OF LABOR & EMPLOYMENT LAW
2ND ANNUAL CLE CONFERENCE
© COPYRIGHT MARK N. MALLERY, 2008
ALL RIGHTS RESERVED
The author wishes to thank and acknowledge R. Bradley Mokros for his substantial
contribution to this paper. Mr. Mokros is a Legal Research Specialist in the law firm of
Kiesewetter Wise Kaplan Prather, PLC in Memphis, Tennessee. Mr. Mokros provides
support for various types of labor and employment litigation in federal and state courts, as
well as before the National Labor Relations Board and labor arbitrators. He received his
B.A. degree from Washington University in St. Louis.
TABLE OF CONTENTS
I.
PRIVACY ISSUES RELATING TO WORKPLACE INVESTIGATIONS ................ 1
A.
STATUTORY PRIVACY PROTECTIONS.................................................. 1
1.
B.
COMMON LAW PRIVACY CLAIMS .......................................................... 7
1.
2.
3.
II.
Intrusion Upon Seclusion ................................................................ 7
Public Disclosure of Private Facts................................................... 8
False Light in the Public Eye ……………………………………….. 9
DEFAMATION .................................................................................................... 11
A.
ELEMENTS OF THE TORT..................................................................... 11
B.
ILLUSTRATIVE DEFAMATION CASES IN THE CONTEXT OF
WORKPLACE INVESTIGATIONS ........................................................... 11
1.
2.
3.
4.
5.
6.
7.
8.
9.
III.
Federal Statutes.............................................................................. 1
a.
Americans with Disabilities Act............................................. 1
b.
Federal Wiretapping Act ....................................................... 2
c.
Federal Polygraph Protection Act......................................... 4
d.
Fair Credit Reporting Act ...................................................... 5
e.
Other Federal Employment Discrimination Statutes………...6
Violation of Company Policies....................................................... 11
Employee Fraud............................................................................ 12
Drug Use....................................................................................... 12
Investigation Procedures .............................................................. 12
Employee Theft ............................................................................. 13
Lack of Investigation ..................................................................... 14
Sexual Misconduct ........................................................................ 14
Automobile Searches………………………………………………… 15
Alcohol Abuse …………………………………………………………15
COMMON LAW TORT OF FALSE IMPRISONMENT ........................................ 15
A.
ELEMENTS OF THE TORT..................................................................... 15
B.
ILLUSTATIVE CASES IN THE CONTEXT OF WORKPLACE
INVESGIATIONS..................................................................................... 16
i
IV.
INFLICTION OF EMOTIONAL DISTRESS......................................................... 16
A.
ELEMENTS OF THE TORT..................................................................... 16
B.
ILLUSTRATIVE CASES IN THE CONTEXT OF WORKPLACE
INVESTIGATIONS................................................................................... 17
1.
2.
3.
4.
5.
6.
7.
V.
Medical Inquiries ........................................................................... 17
Sexual Misconduct ........................................................................ 17
Employee Theft ............................................................................. 17
Personal Searches........................................................................ 18
Violation of Company Policies………………………………………..19
Drug Use....................................................................................... 20
Termination Procedures................................................................ 20
NEGLIGENT HIRING, RETENTION OR SUPERVISION................................... 20
A.
ELEMENTS OF THE TORT..................................................................... 20
B.
ILLUSTRATIVE CASES IN THE CONTEXT OF WORKPLACE
INVESTIGATIONS................................................................................... 21
1.
2.
3.
Sexual Misconduct ........................................................................ 21
Criminal Background Checks ........................................................ 22
Driving Records............................................................................. 22
VI.
NEGLIGENT INVESTIGATION .......................................................................... 22
VII.
GOOD FAITH AND FAIR DEALING................................................................... 23
VIII.
CIVIL TRESPASS .............................................................................................. 23
IX.
MALICIOUS PROSECUTION............................................................................. 24
X.
THIRD PARTY ISSUES ..................................................................................... 24
ii
LEGAL ISSUES ARISING IN CONNECTION
WITH WORKPLACE INVESTIGATIONS
By
Mark N. Mallery
Kiesewetter Wise Kaplan Prather, PLC
New Orleans, Louisiana
Employees may conduct investigations
circumstances including the following:
o
o
o
o
o
of
employees
under
many
different
Suspicion of employee misconduct
Analysis of employee productivity and/or performance
Verification of employee compliance with company policies
Allegations of harassment or other mistreatment
Assurances that employees are qualified and suited to job
Legal issues that may arise in connection with workplace investigations include the
following:
o
o
o
o
o
o
o
o
o
o
I.
Privacy Concerns
Defamation
False Imprisonment
Infliction of Emotional Distress
Negligent Hiring, Retention or Supervision
Negligent Investigations
Civil Trespass
Good Faith and Fair Dealing
Malicious Prosecution
Third Party Issues
PRIVACY ISSUES RELATING TO WORKPLACE INVESTIGATIONS
A.
STATUTORY PRIVACY PROTECTIONS
1.
Federal Statutes
a. Americans With Disabilities Act
Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., is the
principal federal law prohibiting discrimination in employment on the basis of disability.
Federal employees are not covered by the ADA, but they are covered under § 501 of
the Rehabilitation Act, 29 U.S.C. §§ 701-796, which also prohibits discrimination on the
1
basis of disability. The Rehabilitation Act’s anti-discrimination provisions also apply to
two other classes of employers, federal government contractors and federal government
grantees, although both groups of employers are now also covered by ADA.
The ADA defines circumstances under which employers and their physicians may
assess the health status of applicants. For example, the ADA prohibits pre-employment
medical examinations and questionnaires. An employer may not conduct a medical
examination or make inquiries of a job applicant as to whether such applicant is an
individual with a disability or as to the nature or severity of such disability. The only
permissible inquiries are about the ability of the applicant to perform job-related
functions. For example, a county appropriately required the plaintiff, who had exhibited
erratic behavior, to submit to fitness for duty and psychiatric testing when her primary
job responsibility was to provide comprehensive prenatal nursing care for high-risk
patients. See Conrad v. Bd. of Johnson County Comm'rs, 237 F. Supp. 2d 1204 (D.C.
Kan. 2002).
The ADA also prohibits an employer’s unauthorized activity to obtain medical
information about an employee. In Doe v. Kohn, Nast & Graf, P.C., 866 F. Supp. 190
(E.D. Pa. 1994), the plaintiff alleged that after he began looking ill, the defendant’s
employee searched the plaintiff’s office, discovered a letter from John Hopkins Hospital
University AIDS Services, and placed the letter in the plaintiff’s file. The court held
these allegations stated a claim under § 102(d)(4) of the ADA.
b. Federal Wiretapping Act1
The Federal Wiretap Act, 18 U.S.C. § 2510 et seq. (“the Act”), generally prohibits the
interception, disclosure or intentional use of wire, oral or electronic communications,
including those which occur in the workplace. The Wiretap Act was amended in 1986
by the Electronic Communications Privacy Act, (“ECPA”), and in 2001 by the USA
Patriot Act.
The Act prohibits interception of an employee’s oral,2 wire, or electronic3
communications, including those that occur in the workplace, under conditions in which
the employee has a reasonable expectation of privacy in that communication. The Act
provides a civil cause of action to anyone whose communications are unlawfully
intercepted. Successful plaintiffs may recover actual or statutory damages ($10,000 or
$100 a day for each day of violation, whichever is greater), punitive damages, and
attorneys’ fees. The Act also makes the unlawful interception of an oral, wire, or
1
Many states have enacted statutory provisions that mirror those of the Federal Wiretap Act.
Some of these state statutes provide even more protection than the Federal Wiretap Act, though
some are less restrictive.
2
Private conversations between two individuals are “oral communications.”
3
An electronic communication is the transfer of information (writing, images, signals, sounds,
data, etc.) transmitted by electronic means including radio waves, but it is not an oral or wire
communication. E-mail is an example of an “electronic communication.”
2
electronic communication, or the attempted interception of the same, a crime
punishable by fine and/or imprisonment.
While the Federal Wiretap Act is the most important potential limitation on electronic
surveillance in the workplace, the U.S. and state constitutions, other statutes, and
common law claims for invasion of privacy also limit an employer’s right to conduct
electronic surveillance in the workplace.
A narrow and limited “business extension” exception to the Federal Wiretap Act has
developed in the employment context. First, the equipment used to monitor the call
must be a “telephone ... instrument, equipment … or any component thereof …
furnished to the subscriber … by a communications carrier.” If the equipment used
meets this definition, then an employer’s monitoring of a telephone call may be
permissible under the following limited circumstances:
•
To the extent necessary to guard against the unauthorized use of the
telephone;
•
When an employee’s supervisor: (1) has particular suspicions about
confidential information being disclosed to a business competitor; (2) has
warned the employee not to disclose such information; (3) has reason to
believe that the employee is continuing to disclose the information; and (4)
knows that a particular phone call is with an agent of a competitor;
•
To determine whether a call is personal or not;4 or
•
When the employer routinely monitors business calls for training purposes
or to monitor quality control.
Further, an employer’s monitoring of calls is scrutinized less harshly when the
installation of a recording system or the inception of a monitoring program or policy is
announced. If affected employees are notified, monitoring is not surreptitious, and if it is
done for a legitimate business purpose, the courts are likely to find the employer’s
actions permissible.
The Federal Wiretap Act also does not apply if the employer has the consent of one
party to the communication, unless the communication is intercepted for the purpose of
committing a criminal or tortuous act. Consent may be either express or implied. It is
important to note, however, that many state statutes require two-party consent or the
4
See Smith v. Devers, 2002 WL 75803 (M.D. Ala., Jan, 17, 2002) (court held that employer’s
tape recording of telephone calls (both business and personal) for later replay, which were
intercepted via a telephone extension that contained a tape recorder, were not exempt from the
prohibitions of the Federal Wiretap Act; court noted that the recording of every phone call
constitutes an interception and that the “ordinary course of business” exception is not satisfied
when personal phone calls are intercepted (recorded) beyond what is needed to determine
whether the call is personal or business-related).
3
consent of all parties to a communication, in order to insulate an employer from criminal
or civil liability. In addition, under the “provider” exemption, telephone companies and
other employers that provide wire communication services may monitor calls for service
checks.
Cordless phones operate by transmitting voice signals from the handset over radio
waves to the base, which then transmits the signals over the phone lines. Cell phones
operate by sending audio signals over the airwaves to towers that in turn send the
signals over the airwaves to other towers or to the recipient of the call. Intercepting
communications of cordless and cell phones is extremely simple and can often happen
inadvertently. As a result, Congress initially exempted these transmissions from the
class of protected transmissions under the Federal Wiretap Act.
In 1994, Congress removed the exemption for these transmissions, and they are now
protected wire communications. Under federal law, individuals who deliberately
intercept these communications are now subject to a fine of up to $500, as well as
potential civil damages. Despite this law, in cases brought outside the ambit of the
Federal Wiretap Act, courts continue to hold that individuals using cordless and cellular
phones have no expectation of privacy in those communications.
Courts initially struggled to determine whether tape-recording the contents of voicemail
messages constitutes an “interception” under the Federal Wiretap Act. In 2001,
Congress amended the Wiretap Act to make clear that a “wire communication” does not
include items in electronic storage, such as recorded voicemail messages. See USA
Patriot Act, § 209, Pub. L. No. 107-59 § 209(1)(A), 115 Stat. 272, 293 (2001). The
purpose of this amendment was to reduce the protection of voicemail messages to the
lower level of protection provided other electronically stored messages. That is, to be
intercepted in violation of the Wiretap Act, a voicemail message must be acquired
during transmission, not while it is in electronic storage. See generally Konop v.
Hawaiian Airlines, Inc., 302 F.3d 868, 878-79 (9th Cir. 2002) (discussing the history of
the Wiretap Act and its recent amendment by the USA Patriot Act).
c. Employee Polygraph Protection Act (EPPA)
The EPPA prohibits most private employers from using the results of a polygraph test
as a means to screen applicants or to punish employees or applicants who refuse to
submit to polygraph testing. The Act does contain exceptions that allow certain
employers - including all government employers, private security firms, and employers
pursuing investigations that involve monetary loss, including theft and embezzlement –
to conduct a polygraph test. However, the Act does not empower these employers to
take disciplinary or corrective action based solely on the results of the polygraph test.
Instead, the employer must use the results of the polygraph test to help find other
corroborative evidence that will support disciplinary action.
The Employee Polygraph Protection Act of 1988, 29 U.S.C. §§ 2001-2009, prohibits the
use of polygraphs in employment, except pursuant to one of the several exemptions in
4
the Act. These exceptions include polygraphs used by federal, state, and local
government employers; national defense and security; FBI contractors; ongoing
investigations of theft; security service employers; and drug security.
To conduct a lawful test, the employer must strictly comply with the provisions of the
Act. An employee must receive and sign a written statement of his rights and must
even have some of his rights read to him. In addition, an employee must be given time,
prior to the examination, to review the questions to be asked. An employer must advise
the employee of his right to consult with a lawyer before each phase of the test. The
Act specifies that failure to provide an employee with every procedural right to which he
is entitled will make the polygraph examination unlawful.
Under the Act, in order to take disciplinary action against an employee in connection
with an "ongoing investigation,” an employer must have additional supporting evidence
other than a polygraph examination showing deception. The Regulations make it clear
that access plus reasonable suspicion (which is a prerequisite to taking the examination
in the first place) are sufficient to satisfy the additional evidence requirement. See 29
C.F.R. § 801.20.
The Act gives the employee the right to refuse to take a polygraph examination or to
terminate the examination at any time. However, an employer may discipline or
terminate an employee who refuses to take or terminates an examination during an
"ongoing investigation" of "economic loss or injury" if the employer can satisfy the
access and "reasonable suspicion" requirements.
In Campbell v. Woodard Photographic, Inc., 433 F. Supp. 2d 857 (N.D. Ohio 2006), the
plaintiff was discharged after an investigation into workplace theft. Allegedly, during the
investigation, employees were told that they would have to take a polygraph test. The
employee sued, alleging violation of the Employee Polygraph Protection Act and Ohio
tort law. The court held that at the time the alleged statement about polygraphs was
made, the employer did not have reasonable suspicion that a particular employee was
responsible for the thefts. See 29 U.S.C.S. § 2006(d)(3). Thus, summary judgment for
the employer was denied.
d.
Fair Credit Reporting Act
Stated broadly, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”), places
limitations on the "communications" of a consumer reporting agency which have a
"bearing on a consumer's credit worthiness, credit standing, credit capacity, character,
general reputation, personal characteristics, or mode of living" and are used for, among
other things, "employment purposes". The statute specifically exempts, however, "any
report containing information solely as to transactions or experiences between the
consumer and the person making the report.” 15 U.S.C. § 1681a(d)(2)(A)(i).
In 2003, Congress amended the FCRA with the passage of the Fair and Accurate Credit
Transactions Act (“FACT Act”) (Public Law 108-159). The FACT Act provides some
5
relief to employers using third parties to conduct workplace investigations. Under the
FACT Act, an employer who uses a third party to conduct a workplace investigation no
longer needs to follow the consent and disclosure requirements of the FCRA if the
investigation involves suspected misconduct, a violation of law or regulations, or a
violation of any pre-existing written policies of the employer. In effect, there can be an
element of surprise when using an outside consultant or investigator to conduct a
workplace investigation, except where limited by applicable state fair credit reporting
laws.
To be excluded from the disclosure requirement at the "pre-adverse action" stage, the
FACT Act requires that communication of the report resulting from the third party
investigation must generally be limited to the employer or an agent of the employer.
Disclosing the report to others within an organization may create issues under the
FCRA, including inadvertently creating an "investigative consumer report," thereby
triggering disclosure requirements.
In the event "adverse action" is taken against the employee based on the results of the
investigation, the FACT Act still requires the employer to provide the affected employee
a summary of the report. "Adverse action" has been broadly defined under FCRA as
any employment decision that adversely affects an employee. Employers using outside
consultants to conduct internal investigations must therefore remember to provide this
summary whenever an adverse action is taken, such as a written warning, suspension
or termination. This summary does not have to identify the individuals interviewed or
other sources of information.
e. Other Federal Employment Discrimination Statutes
With the passage of the Civil Rights Act of 1991, Congress expanded recovery in cases
of intentional discrimination in employment to include punitive damages. See 42
U.S.C.A. § 1981a (West 2003). Eight years later, the U.S. Supreme Court structured a
standard for determining when punitive damages are appropriate. Kolstad v. American
Dental Ass’n, 527 U.S. 526 (1999). Title VII allows punitive damages to be assessed
when an employer/defendant engages in discriminatory practices, “with malice or with
reckless indifference to the federally protected rights of an aggrieved individual.” 42
U.S.C.A. 1981 a(b)(1).
In order to provide incentives for employers to continue complying with Title VII, the
Court created a protection for imputing punitive liability to employers: “An employer
may not be vicariously liable for the discriminatory employment decisions of managerial
agents where these decision are contrary to the employer’s ‘good-faith efforts to comply
with Title VII’.” Kolstad, 527 U.S. at 545.
When assessing an employer’s “good-faith efforts” many lower courts have looked to,
among other things, the adequacy of the investigation conducted by employers in
response to workplace complaints of discrimination and/or harassment. See, e.g.
Godinet v. Management and Training Corp., 56 Fed. Appx. 865 (10th Cir. 2003); Hatley
6
v. Hilton Hotels Corp., 308 F.3d 473 (5th Cir. 2002); Shramban v. Aetna, 2003 WL
21195439 (E.D. Pa. 2003); Stienhoff v. Upriver Restaurant Joint Ventures, 117 F. Supp.
2d 598 (E.D. Ky. 2000).
In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of
Boca Raton, 524 U.S. 775 (1998), the Supreme Court established an affirmative
defense available to an employer accused of sexual harassment. The affirmative
defense requires an employer to prove by a preponderance of the evidence the
following two elements:
•
The employer exercised reasonable care to prevent and correct promptly any
harassing behavior; and
•
The plaintiff unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise.
When analyzing this affirmative defense, courts have often focused on the adequacy of
the employer's workplace investigation:
In Silver v. General Motors Corp., 225 F.3d 655, 2000 WL 1012958 (4th Cir. Jul. 24,
2000), defendant had a “widely known” sexual harassment policy which both the plaintiff
and alleged harasser had received. The policy demonstrated that defendant acted
reasonably to prevent sexual harassment. After plaintiff complained to a high-level
manager of sexual harassment, defendant began an investigation of the complaint. A
week later, defendant discharged the alleged harasser based on the investigation. The
court held that defendant established the first prong of the Faragher affirmative defense.
In Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000), the court held that there was
substantial evidence indicating the employer neither conducted a “thorough
investigation” nor took the “appropriate action” promised by its sexual harassment
policy. According to the testimony of plaintiff and others, the employer “minimized”
plaintiff’s complaints; performed a cursory investigation that focused upon Plaintiff’s
performance rather than the alleged harasser’s conduct; and forced her to resign while
imposing no discipline upon the harasser for his behavior.
In Vincent v. Aztec Facility Services, Inc., 2007 U.S. Dist. LEXIS 67732 (N.D. Tex. Sept.
12, 2007), the employer was barred from asserting the affirmative defense due to
reasonable doubt as to whether company's investigation of sexual harassment claims
was "vigorous”; the investigator admitted she did not follow the standard procedure for
investigating harassment complaints and conducted the investigation with the intent to
protect the company.
B.
COMMON LAW PRIVACY CLAIMS
1.
Intrusion Upon Seclusion
Intrusion upon seclusion is the most widely recognized common law privacy tort. To
prevail on a claim under this theory the employee must establish that the employer:
•
Intentionally intruded into a private place, conversation, or matter; and
7
•
The intrusion occurred in a manner highly offensive to an ordinary
person.5
In practice, it can be difficult to demonstrate the matter was sufficiently private to
warrant protection. To do so, the employee must show that he or she had a subjective
expectation of privacy, and that the subjective expectation of privacy was reasonable.
See Roth v. Farner-Bocken Co., 667 N.W.2d 651 (S.D. 2003) (evidence that employer
opened letter from law firm to former employee concerning employee’s age
discrimination claim against employer that was mistakenly mailed to employer, realized
it was meant for employee personally, but nonetheless read entire contents of package,
made photocopies, and disseminated photocopies to its officers, was sufficient to state
cause of action against employer for intrusion into employee’s personal seclusion);
Morris v. Ameritech Ill., 785 N.E.2d 62 (Ill. Ct. App. 2003) (search of telephone records
revealing numbers dialed from plaintiff’s home (which records were maintained by
Ameritech as his home telephone service provider), to establish that plaintiff had been
making calls from home and therefore falsifying his time records was not an actionable
invasion of privacy); Salazar v. Golden State Warriors, 2000 WL 246586 (N.D. Cal. Feb.
29, 2000) (court found no violation of employee’s right to privacy where private
investigator hired by employer used night-vision infrared high-powered scope to
videotape plaintiff allegedly snorting cocaine while entering and leaving his home during
wedding reception); Johnson v. Kmart Corp., 723 N.E.2d 1192 (Ill. Ct. App. 2000) (use
of undercover informants for ostensible purpose of detecting theft, vandalism and drug
use which resulted in informants’ reporting to management highly personal information
about employees’ family members, romantic interests, sex lives, future employment
plans, attitudes toward the company, medical problems, and children’s problems, all of
which was gathered from conversations at work or in private social gatherings, created
a material issue of fact as to whether the employer committed the tort of intrusion; court
rejected argument that plaintiffs voluntarily disclosed personal information to the
employer where employer obtained the names through deception (false
friend/informants) because such disclosures of information to the employer are not
voluntary).
2.
Public Disclosure of Private Facts
The Restatement 2d of Torts, § 652D, defines the tort of public disclosure of private
facts as follows:
5
The Restatement 2d of Torts, § 652B, defines intrusion upon seclusion as:
One who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, is subject to liability to the
other of invasion of his privacy, if the intrusion would be highly offensive to a
reasonable person.
8
One who gives publicity to a matter concerning the private life of another is
subject to liability to the other in invasion of its privacy, if the matter publicized is
of a kind that
(a).
would be highly offensive to a reasonable person, and
(b)
is not of legitimate concern to the public.
Employer disclosure of private facts about an employee to a third party, such as
dissemination of the reasons for an employee’s termination, the contents of a
performance evaluation, or the details of an employee’s medical condition (even if the
facts disclosed are true), may form the basis of an invasion of privacy claim. To
succeed on such a claim, the employee must establish that he/she communicated
private information to the employer and that the employer’s disclosure of the information
was outrageous. See Karraker v. Rent-A-Center, Inc., 239 F. Supp. 2d 828 (C.D. Ill.
2003) (allegations that results of psychological tests, required of employees seeking
management positions, were placed in employees’ personnel files and that managers
were free to distribute results to anyone, even those who had no business reason for
viewing documents, sufficient to state claim against employer for public disclosure of
private facts); Mitnaul v. Fairmont Presbyterian Church, 778 N.E.2d 1093 (Ohio Ct. App.
2002) (where music director suffered severe depression and a long period of
hospitalization while on medical leave, church’s posting on its website a statement that
it was happy plaintiff would be returning to church after a long medical leave of absence
for treatment of “bipolar illness,” created a triable issue of fact whether the disclosure of
the private fact relating to the nature of his illness would be highly offensive to a
reasonable person); Lopez v. City of Seattle, 2002 WL 31106454 (Wash. Ct. App. Sept.
23, 2002) (city employee’s letter and phone call to another city employee suggesting
that she was being physically abused by a third city employee with whom she lived,
which resulted in investigation and rumors circulating that she was being physically
abused, did not constitute disclosure of “private” facts because once plaintiff disclosed
that information in a letter and orally to a third party it ceased to be private information
upon which to predicate a claim for wrongful publication of private facts).
The general standard for public disclosure requires that the disclosure be made to more
than one person. See Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo. 1997)
(although the disclosure necessary to support claim for invasion of privacy in nature of
unreasonable publicity given to one's private life must be made to general public or to
large number of persons, there is no threshold number which constitutes a large
number of persons; rather, facts and circumstances of particular case must be taken
into consideration in determining whether disclosure was sufficiently public to support
invasion of privacy claim).
3.
False Light In The Public Eye
Personal and job performance history can be a useful tool for evaluating applicants and
employees. As such, employers often are asked in providing references to other
9
employers to disclose information about employees’ work history. Before releasing this
information, employers should consider the accuracy of the data collected because
there may be a risk associated with releasing information that later proves to be
unreliable. “False light” can occur when an employer intentionally discloses false or
inaccurate information that harms the reputation of a current or former employee to a
wide public audience.
These claims commonly are referred to as false light claims because the information
released by the employer casts the individual in a false light. See Keno v. Station KYWAM Infinity Broadcasting Corp., 2004 WL 2367824 (E.D. Pa. Oct. 20, 2004) (escorting
plaintiff out of the building with a security guard, informing employees by e-mail that she
was not allowed access to the premises during her leave of absence without
management permission, and stating falsely in the e-mail that she had been granted a
leave (which she never requested), stated a claim for false light invasion of privacy);
Wal-Mart Stores, Inc. v. Lee, 74 S.W.3d 634 (Ark. 2002) (Wal-Mart supervisor falsely
informed police that employee had Wal-Mart computer equipment at his home without
authorization and requested police assistance to retrieve equipment; court held that
subsequent police search of plaintiff’s garage, related police radio communications, and
placement of numerous computer parts on plaintiff’s front lawn, resulting in the press
covering the matter, supported a jury verdict against Wal-Mart for placing plaintiff in a
false light); but see Addington v. Wal-Mart Stores, Inc., 105 S.W.3d 369 (Ark. Ct. App.
2003) (applying holding in Wal-Mart Stores, Inc. v. Lee, court held employer’s written
and oral statements during investigation of employee for stealing were not made with
actual malice to sustain cause of action for false-light invasion of privacy—employee
voluntarily admitted to having employer’s merchandise at his home).
In Green v. Trinity International Univ., 801 N.E.2d 1208 (Ill. Ct. App. 2003), the
defendant, a religious university, sent memoranda to the students and faculty
announcing that the plaintiff had been relieved of his academic and administrative
duties. The plaintiff argued that although the University’s statements in the memoranda
were true, he had stated a cause of action for false-light invasion of privacy based on
what the University did not say. Specifically, that the University’s “terse” statements,
plus its failure to ask the faculty and students to pray for the plaintiff, created the
impression that the plaintiff was terminated because he committed an act of moral
turpitude. The court rejected the plaintiff’s argument, holding that the University’s
statements were not worded in such a way that a reasonable person would conclude
that plaintiff had been fired for an act of moral turpitude.
False light claims often fail because, even if the employee can prove that the employer
knowingly disclosed false information, it is difficult to demonstrate that the false
comments were distributed widely enough, or “publicized.” A statement is only deemed
“publicized” if the disclosure is directed to the general public or a large number of
persons. Disclosure to one person or a handful of people is inadequate. See, e.g.,
Miller v. Clatsop Care Cntr. Health Dist., 2004 WL 1803327, at *8 (D. Or. Aug 11, 2004).
10
II.
DEFAMATION
A.
ELEMENTS OF THE TORT
The essential elements of a claim for defamation vary somewhat according to
jurisdiction. Generally, a plaintiff must prove that the defendant: (1) published, (2)
defamatory words, (3) that were false, (4) with malice, actual or implied, and (5) the
plaintiff suffered injury as a result. Cangelosi v. Schwegmann Bros., 390 So.2d 196 (La.
1980). See also Mitan v. Campbell, 706 N.W.2d 420, 421 (Mich. 2005) (under Michigan
law, elements of a defamation claim are: (1) a false and defamatory statement
concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault
amounting at least to negligence on the part of the publisher, and (4) either actionability
of the statement irrespective of special harm (defamation per se) or the existence of
special harm caused by publication); Hall v. Kan. Farm Bureau, 50 P.3d 495, 504 (Kan.
2002) (elements of the tort of defamation in Kansas are: "false and defamatory words,
communicated to a third party, which result in harm to the reputation of the person
defamed").
B.
ILLUSTRATIVE DEFAMATION CASES
WORKPLACE INVESTIGATIONS
1.
IN
THE
CONTEXT
OF
Violation of Company Policies
Bearden v. International Paper Company, 529 F.3d 828 (8th Cir. 2008). Plaintiff
asserted that company manager untruthfully announced to his staff that he terminated
Plaintiff for gross violation of policy. Even if the manager had made the statement,
communications between supervisory employees pertaining to business matters are
protected. The court dismissed Plaintiff’s defamation claim.
Boyle v. Stiefel Lab., 612 N.Y.S.2d 469 (N.Y. App. Div. 1994). Plaintiff Boyle was hired
by Stiefel Laboratories (SRI) as the director of the microbiology laboratory. Technicians
in the laboratory complained to the director and personnel director about plaintiff’s
violations of standard operating procedures. Pursuant to an investigation, SRI found
that plaintiff was violating stand operating procedures and that serious morale problems
existed in his department. Consequently, SRI informed plaintiff that his employment
was being terminated. Plaintiff arranged a meeting with one of the defendants to pick
up personal materials, and unknown to the defendant, tape-recorded their conversation.
In that conversation, a defendant made reference to a conversation with another
defendant in which the other defendant expressed a concern regarding possible sexual
harassment claims from plaintiff’s department. The court dismissed the defamation
claim finding that no allegations of special damages existed, and that any statements
made by the defendants as co-employees would be subject to a qualified privilege
because of their common interest in SRI. In addition, the court found that no evidence
was presented to infer that the alleged inflammatory statements were published with
11
actual malice. Nor did the court find that any statements were made to individuals
outside the scope of those protected by the qualified privilege.
2.
Employee Fraud
Phelan v. May Dep't Stores Co., 819 N.E.2d 550 (Mass. 2004). Plaintiff sued employer
for defamation and false imprisonment arising out of an investigation into alleged
accounting discrepancies being hidden from the employer. The case arose when the
company began an internal investigation due to accounting discrepancies. Ultimately,
the plaintiff was not to blame, as it was one of his subordinates who had committed the
wrongdoing. During the course of the day that the investigation was held, the employee
was not allowed to leave the building, was accompanied at all times by a security guard,
and was not allowed to use the telephone. The employee indicated that he felt
embarrassed and humiliated because coworkers were staring at him while he was being
monitored by the security guard. At the end of the day, plaintiff was informed that he
was being suspended and was ultimately terminated. The Massachusetts Supreme
Court held that even viewing the evidence in the light most favorable to the employee,
defendants' conduct did not rise to the necessary level of publication required for
defamation. The court agreed with the defendants' contention that their conduct did not
convey an unambiguous false statement about plaintiff. Additionally, the employee
would have had to produce evidence that an observer interpreted the defendants'
conduct as conveying such a meaning, which plaintiff did not do. The court recognized
that defamatory publication may result from physical actions. However, the employee
was required to present testimony by at least one co-worker to show that the physical
action (being escorted by a security guard) was viewed by a third party as a defamation
(that plaintiff had engaged in criminal wrongdoing). The employee failed to present such
evidence.
3.
Drug Use
Govito v. West Jersey Health System, Inc., 753 A.2d 716 (N.J. App. Div. 2000).
Hospital accused plaintiff, a nurse, of taking morphine from cabinet and of being
addicted to drugs. For purposes of a defamation claim, a nurse is a public figure which
means plaintiff must show the hospital made the statements with malice. Plaintiff could
not prove that the employer knew that statement was false or acted in reckless
disregard to the truthfulness of the statement. The communications of the nurses and
other hospital personnel also fall under qualified immunity. Plaintiff’s defamation claim
therefore failed.
4.
Investigation Procedures
Schrader v. Eli Lilly and Co., 639 N.E.2d 258 (Ind. 1994). As a result of an internal
investigation of theft, Eli Lilly fired six employees, placed several others on probation,
and reassigned some employees within the plant. In order to quell continuing rumors
surrounding the terminations, which were viewed as detrimental to the workers’ morale,
the plant’s director included a slide presentation regarding the terminations as part of
12
his weekly plant staff meeting. The slide presentation included the names of the six
terminated employees and stated that they had been separated because of “loss of
confidence of these individuals as employees of Eli Lilly & Co.” Notes of the contents of
the slide presentation were distributed by one manager to various department heads,
supervisors, and employees, and were even posted on a bulletin board. Five of the
discharged employees filed suit against Lilly claiming defamation. The court found that
these communications constituted publication, but that the statements were made
pursuant to a “qualified privilege of common interest.” This privilege applies to intracompany communications regarding the fitness of an employee.
Despite the
employees’ argument that approximately 1500 Lilly employees and 500 non-employees
saw the defamatory statements on the bulletin board, the court rejected the employees’
argument that Lilly abused the privilege through excessive publication. The court found
that communication to the employees was covered by the privilege because it
concerned a matter affecting both job performance and job security. Furthermore, the
court found that there was no evidence that the 500 non-employees ever read the
notice or that, without knowledge of the rumors, would understand that the statements
were defamatory.
Southern Glass & Plastics Co. v. Duke, 626 S.E.2d 19 (S.C. Ct. App. 2005). Court
concluded allegedly defamatory statements regarding a former employee made by the
employer to a human resources consultant hired to dispute the former employee's claim
for unemployment benefits were absolutely privileged under S.C. Code Ann. § 41-27560.
5.
Employee Theft
Montgomery Investigative Servs. v. Horne, 918 A.2d 526 (Md. Ct. App. 2007).
Employee informed employer that he had been arrested and charged with transporting
a handgun and impersonating a police officer. The employer hired the employee and
conducted a series of background checks. A background check service conducted the
searches. The first two checks revealed nothing remarkable, but the third check
showed that the employee had also been charged with theft and conspiracy in 1986. In
reality, another person with the employee’s name was charged with theft and
conspiracy in 1986. The court ruled that the search company, the search company
employee who provided the information to the employee’s employer and the employer
enjoyed qualified immunity. The search company and its employees enjoyed qualified
immunity because they had a common interest with the employer in the transaction’s
business content. Whether the employer, the search company, and the search
company’s employee exhibited malice was a question for the jury. There was evidence
to support such a conclusion: the search company and its employee could have realized
that the employee would have been twelve years old when the theft occurred, and the
employer called the employee a thief for about an hour in front of other employees.
13
6.
Lack of Investigation
Bradley v. Hubbard Broadcasting, 471 N.W.2d 670 (Minn. Ct. App. 1991). The court
affirmed the jury’s finding for the plaintiff on her defamation claim. Plaintiff testified that
when she noticed pieces of paper with her name on them in the photocopy room, she
put them together and found a memo stating her supervisor intended to replace her,
and referencing her involvement in two disputes between the employer and other
employees. The supervisor then fired the plaintiff and sent correspondence to the
financial department stating plaintiff “retrieved a piece of personal correspondence from
my waste bin.” Upper level managers were told plaintiff was terminated for gross
misconduct.
According to the court, the statements that plaintiff took personal material from a
supervisor’s waste basket and was terminated for gross misconduct were adequately
harmful to her reputation to maintain her defamation claim:
Although an employer’s nonmalicious communications are
conditionally privileged,… the jury found that the supervisor’s
statements were made with actual malice, defeating the privilege.
After [the plaintiff] declined to resign voluntarily, the supervisor
became noncommunicative and, according to her memo, began
building the appropriate file to replace [the plaintiff]. The supervisor,
without investigation…accused [the plaintiff] of retrieving the memo
from her waste basket and caused the allegation of gross
misconduct to circulate as office gossip. This conduct supports the
jury’s conclusion that the supervisor harbored an improper motive or
acted causelessly and wantonly for the purpose of injuring [the
plaintiff].
7.
Sexual Misconduct
Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573 (Texas 2000). Plaintiff was
investigated after accusations by her co-workers that she was having an affair with her
supervisor. The supervisor made certain statements that plaintiff considered defamatory
during the investigation. Plaintiff sued the employer, asserting it was liable via
respondeat superior for the supervisor's statements. In holding the employer not
responsible for the supervisor's actions, the court noted that the supervisor had lied
during the investigation for his own personal reasons and not on behalf of the employer
in the furtherance of the employer's business, or for accomplishment of the object for
which the employee was hired. The court concluded "there is no evidence to support the
… finding that [the supervisor] was acting within the course and scope of his
employment" when he made the defamatory statements during the investigation.
Meleen v. Hazelden Foundation, 740 F. Supp. 687 (D. Minn. 1990). Plaintiff’s
compelled self-publication claim arose out of a statement regarding the basis of her
discharge, which involved a charge of sexual involvement on the job. Plaintiff’s
14
allegations of misconduct included a delay in notifying her of the investigation, a
settlement with the third party involved without investigation of the truth of the charges,
insufficient training of the investigative committee and a conflict of interest, as well as
inadequacy of the investigation. The court rejected the plaintiff’s argument that the
qualified privilege should be overcome because the employer improperly investigated
the charges:
Defendant, confronted with allegations of serious misconduct,
undertook an investigation as required by [statute]. The examination
clearly was not driven by ill will or a plan to injure the plaintiff. [The
facts demonstrated] Defendant followed its investigative procedures
carefully and in good faith. Plaintiff’s examples of ill will are nothing
more than a restatement of what she perceives as inadequacies in
the investigative procedure. Plaintiff was not entitled to more than
she received. The mere fact that an investigation was conducted
does not evidence malice.
8.
Automobile Searches
Kolczynski v. Maxton Motors, Inc., 538 N.E.2d 285 (Ind. Ct. App. 1989). A cause of
action for slander cannot be based on an employer having a key made which opens an
employee’s car, and searching the car for missing inventory.
9.
Alcohol Abuse
Cooper v. Laboratory Corp. of Am. Holdings, 150 F.3d 376 (4th Cir. 1998). Plaintiff filed
claim for defamation after she was fired because her urine tested positive for alcohol, in
violation of company policy. Plaintiff was diabetic and alleged her urine tested positive
for alcohol because of glucose fermentation rather than alcohol consumption. The
employee's defamation claim failed on two grounds. First, the lab report was true
because her urine tested positive for alcohol. Second, the employee failed to overcome
the laboratory's qualified privilege because she did not show malice.
III.
COMMON LAW TORT OF FALSE IMPRISONMENT
A.
ELEMENTS OF THE TORT
Claims of false imprisonment in the employment context often arise during an
employer’s investigation of suspected employee misconduct. In this regard, employees
are detained pending interrogations and other investigatory actions. In addition,
employee claims of false imprisonment have arisen in other situations, such as when an
employee is forcibly prevented from going to the personnel office upon termination, and
then physically escorted off the premises. The elements of the tort of false imprisonment
are as follows:
15
1. An actor is subject to liability to another for false imprisonment if
a. he acts intending to confine the other or a third person within
b. boundaries fixed by the actor, and
c. his act directly or indirectly results in such a confinement of the other,
and
d. the other is conscious of the confinement or is harmed by it.
2. An act which is not done with the intention stated in Subsection (1,a) does
not make the actor liable to the other for a merely transitory or otherwise
harmless confinement, although the act involves an unreasonable risk of
imposing it and therefore would be negligent or reckless if the risk threatened
bodily harm.
Restatement of the Law, Torts 2d, § 35 (1965).
B.
ILLUSTRATIVE CASES
INVESTIGATIONS
IN
THE
CONTEXT
OF
WORKPLACE
Crutcher v. Wendy's of N. Ala., Inc., 857 So. 2d 82 (Ala. 2003). Wendy’s manager
noticed that $50 was missing from the cash register. The manager called the police and
asked them what they could do. The police said that they could conduct a search. The
manager agreed to the search to help find the money. The police then told a sixteenyear-old employee to go to the back room with them so that they could investigate her.
The court found no bad faith on the part of the store manager; therefore, the court
upheld the trial court’s decision granting summary judgment in favor of the store.
Jackson v. K Mart Corp, 851 F. Supp. 469 (M.D. Ga. 1994). Plaintiff was a cashier at
defendant’s store. Plaintiff was observed tallying items for a sale, then voiding them
out, and providing the patron with the goods anyway. The patron paid $4.99 for
$834.86 worth of merchandise. Plaintiff was taken to a room and asked about the
transaction, told that the interviewer could make a pass at her and there was nothing
she could do about it, and was not permitted to use the phone. The court stated that
the fact that plaintiff was subsequently indicted indicated that a reasonable person
would have believed plaintiff was shoplifting, but that a genuine issue of act existed as
to whether plaintiff’s detention was reasonable; therefore, the court denied defendant’s
motion for summary judgment.
IV.
INFLICTION OF EMOTIONAL DISTRESS
A.
ELEMENTS OF THE TORT
The courts that have recognized the tort of intentional infliction of emotional harm (also
known as the tort of outrage) have relied on the Restatement’s foundation:
16
It has not been enough that the defendant has acted with an intent which
is tortious or even criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized by ‘malice’ or a
degree of aggravation which would entitle the plaintiff to punitive damages
for another tort. Liability has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which
the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and leave him to exclaim,
‘Outrageous!’
Restatement of the Law of Torts 2d, § 46 comment d (1965).
A plaintiff asserting intentional infliction of emotional distress must generally prove the
following: (1) the defendant’s conduct was extreme and outrageous; (2) the defendant
intentionally and recklessly caused harm; and (3) distress resulted. Restatement of the
Law of Torts 2d, § 46(1) (1965).
B.
ILLUSTRATIVE CASES IN THE CONTEXT OF WORKPLACE
INVESTIGATIONS
1.
Medical Inquiries
Valencia v. Duvall, 645 P.2d 1262 (Ariz. 1982). It was not outrageous for a personnel
representative to contact the company’s outside physician to determine whether
plaintiff/employee’s request for medical leave was bona fide, and to provide said
physician with a medical excuse from three years earlier in which plaintiff claimed the
same illness (Valley Fever) where outside physician contacted the plaintiff’s treating
physician and determined that employee could return to work and then reported this
information to the personnel representative.
2.
Sexual Misconduct
Kanzler v. Renner, 937 P.2d 1337 (Wy. 1997). Wyoming considers several factors in
determining whether sexual conduct supports a claim of intentional infliction of
emotional distress: abuse of power exercised by an authority figure, repeated instances
of harassment, unwelcome touching, and retaliation for refusing or reporting sexuallymotivated advances. Evidence that employer had exhibited intimidating behavior
toward the employee and had hugged, kissed, and rubbed his crotch against her leg
provided sufficient evidence to enable the claim to go to a jury.
Bedford v. Southeastern Pa. Transp. Auth., 867 F. Supp. 288 (E.D. Pa. 1994) (applying
Pennsylvania law). During a routine medical examination by the employer transit
authority, physician intentionally and unnecessarily placed a stethoscope under
plaintiff’s brassiere and pressed his pelvic area against her buttocks while examining
17
her back. Although the physician’s conduct might well be extreme and outrageous, the
employer was not liable; its investigation of the incident was merely callous, shoddy and
inadequate.
3.
Employee Theft
Burroughs v. FFP Operating Partners, L.P., 28 F.3d 543 (5th Cir. 1994). Statements
made in the course of employer’s investigation of employee’s alleged embezzlement
were not extreme and outrageous, but were for legitimate business purposes.
Dean v. Ford Motor Credit Co., 885 F.2d 300 (5th Cir. 1989). The Fifth Circuit upheld a
jury verdict in favor of the plaintiff were the evidence warranted an inference that
plaintiff’s superior “intentionally placed … checks in the plaintiff’s purse in order to make
it appear that she was a thief, or to put her in fear of such an accusation,” thereby
“causing the innocent plaintiff to be subject to … an accusation of crime and putting her
in fear that such an accusation might be made.”
Ellis v. Buckley, 790 P.2d 875 (Colo. Ct. App. 1989). An employer-conducted polygraph
test of plaintiff indicated deception. A supervisor then escorted plaintiff to “a small
interrogation room where he questioned her for over two hours without telling her she
could leave. Although her background was exemplary, and no evidence (besides the
polygraph test) indicated any wrongdoing, he repeatedly accused her of theft despite
her constant denials, and continued the interrogation, even though she was crying in an
attempt to obtain a confession from her.” After being fired, she “experienced insomnia
and other signs of emotional distress for a period of time.” The jury awarded the plaintiff
$48,000 in compensatory damages for her outrage claim, plus $125,000 in exemplary
damages.
Plaintiff was also awarded $11,400 for defendant’s negligence in
administering the polygraph test. The appellate court affirmed those awards.
Sabatowski v. Fisher Price Toys, 763 F. Supp. 705 (W.D.N.Y. 1991). Plaintiff sued for
infliction of emotional distress arising out of her termination for theft. She removed two
inexpensive toys from the production line where she had been working for 15 years and
put them in a paper bag without explanation to her supervisors, although she later
stated it was for the purpose of playing a joke on other production line workers. Plaintiff
alleged her supervisor told the other line workers that the termination was for stealing
from the company. The court dismissed the plaintiff’s claim of intentional infliction of
emotional distress. New York requires a showing of extreme and outrageous conduct,
which the defendant intends to cause severe emotional distress to the plaintiff, and
which does cause severe emotional distress. The conduct was not extreme or
outrageous, plaintiff did not show that she suffered any emotional distress, and no intent
by the defendant to cause such distress was shown.
4.
Personal Searches
Profitt v. District of Columbia, 790 F. Supp. 304 (D.D.C. 1991). The plaintiff, a prison
employee, filed suit for intentional infliction of emotional distress, among other claims,
18
alleging she was forced to submit to a strip search and body cavity search by her
supervisors on one occasion when she reported for work. The plaintiff was five months
pregnant at the time. Prior to the search, one of the plaintiff’s supervisors had received
an anonymous tip that plaintiff would report to work at her designated time with one
ounce of cocaine. Plaintiff’s supervisors previously had suspected plaintiff of illegal
drug trafficking at the prison. As a result of the anonymous tip, plaintiff was ordered to
undergo a “pat down” search. Plaintiff also alleged that she was required to submit to a
strip search and a visual body cavity search. The court dismissed the plaintiff’s claim
for intentional infliction of emotional distress, holding that the strip search and alleged
body cavity search “were conducted reasonably and in accordance with the applicable
Department of Corrections regulations.” The court had previously held that the plaintiff’s
supervisors had sufficient “reasonable suspicion” to conduct the search consistent with
Fourth Amendment standards. The plaintiff failed to prove that the defendants’ conduct
was “wanton, outrageous, in the extreme, or calculated to cause serious mental
distress.”
5.
Violation of Company Policies
Dicomes v. State, 782 P.2d 1002 (Wash. 1989). Plaintiff was terminated after a
management study identified mismanagement in her section. She alleged the
management study was a pretext for terminating her in retaliation for creating an uproar
by submitting certain budget discrepancies to a particular group: “Plaintiff argues that
her discharge constituted outrageous conduct because it allegedly showed her to be an
incompetent and disloyal employee. She argues that the management study was an
intentionally-prepared false report created for the sole purpose of embarrassing,
humiliating and then terminating her.” The court responded: “First, even if the purpose
of the study was to fire plaintiff, the fact of the discharge itself is not sufficient to support
a claim of outrage. . . . It is the manner in which a discharge is accomplished that might
constitute outrageous conduct. Here [the defendant] discharged plaintiff by privately
delivering a termination letter, and briefly responding to media inquiries regarding the
dismissal. Second, mere insults and indignities, such as causing embarrassment or
humiliation, will not support imposition of liability on a claim for outrage.” Plaintiff’s
claims were therefore dismissed on summary judgment.
Morris v. Union P.R. Co., 825 S.W.2d 911 (Mo. Ct. App. 1992). The court affirmed
summary judgment on plaintiff’s claim for intentional infliction of emotional distress
because there was insufficient evidence of “unconscionable abuse” or “outrageous
conduct.” The court considered alleged harassment occurring after plaintiff executed a
release in conjunction with his involvement in a prior Title VII class action suit. The
defendant allegedly began using new absentee forms and a point system enforced only
against participants in the class action. The defendant also requested documentation of
a medical condition causing plaintiff’s absence from work, and scheduled a formal
investigation when plaintiff did not provide that documentation. The court held:
“Defendant’s alleged conduct in no way approaches conduct so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community.”
19
6.
Drug Use
Blankenship v. South Carolina Electric & Gas Co., 5 I.E.R. Cas. (BNA) 930 (S.C.C.P.
June 11, 1990). Plaintiff was randomly chosen for a drug test, but “refused to sign the
consent form and refused to be tested.” She was informed that such refusal could
result in her termination.
She was suspended and an investigation ensued:
“Blankenship surrendered her company identification badge and was escorted from the
building after she was suspended. The parties have also stipulated that Blankenship
was upset when she was discharged, visited her family physician twice and received
mild medication once.” Since termination itself is not outrageous, the court held plaintiff
did not show outrageous conduct: “Employees are discharged every day. Involuntary
dismissal is a fact of modern business life. The record is devoid of any evidence that
Blankenship suffered any more than an ordinary employee would have suffered. There
is neither an allegation of nor evidence suggesting a hostile, abusive encounter
between the plaintiff and any of [defendant] agents.
The court realizes and
acknowledges that discharge is an unpleasant experience, but finds that the facts of the
case do not rise to the level needed to state a legally cognizable tort.”
7.
Termination Procedures
Weichman v. Chubb & Son, 552 F. Supp. 2d 271 (D. Conn. 2008). The mere act of
firing an employee, even if wrongfully motivated, does not transgress the bounds of
socially tolerable behavior. In the context of a negligent infliction of emotional distress
claim, actionable conduct occurring in the termination of employment usually involves
removal from the actual premises of employment in an unreasonable manner or
unreasonable treatment during the period of time in which the termination of
employment is pending.
V.
NEGLIGENT HIRING, RETENTION OR SUPERVISION
A.
ELEMENTS OF THE TORT
In many jurisdictions, individuals who are harmed by an employee can recover from the
employer when the employer was negligent in hiring, retaining or supervising the
tortfeasor employee. Negligent hiring claims often arise out of allegations that the
employer failed to properly investigate the background of the tortfeasor employee
before hiring him and placing him on the job. Negligent retention and supervision
claims, on the other hand, arise out of allegations that, after placing the tortfeasor
employee on the job, the employer learned or should have known of inappropriate
conduct or characteristics on the part of the tortfeasor employee and failed to take the
appropriate corrective action.
In general terms, a cause of action based on negligent hiring requires proof of the basic
negligence elements. Thus, a plaintiff must show that: (1) the employee was unfit for
hiring; (2) the employer knew or should have known the employee was unfit; (3) the
20
employer could foresee that the employee, through his employment, would come into
contact with the plaintiff under circumstances creating a risk of danger to the plaintiff; (4)
the employer’s negligence was the proximate cause of the plaintiff’s injury; and (5) the
plaintiff was in fact injured.
Negligent retention involves similar considerations, timing being the factor that
distinguishes it from negligent hiring. When the employer knows or should have known
of the employee’s unfitness at the time of hiring, the plaintiff’s claim is properly one for
negligent hiring. When that knowledge is only acquired (or reasonably should have
been acquired) after the employment relationship has commenced, and the employer
fails to take corrective action (such as investigation, reassignment or termination), the
plaintiff’s claim is one for negligent retention.
The doctrine of negligent supervision, like respondeat superior, is premised upon
derivative liability and is summarized in § 316 of Restatement of the Law, Torts 2d:
A master is under a duty to exercise reasonable care so to control
his servant while acting outside the scope of his employment as to
prevent him from intentionally harming others or from so conducting
himself as to create an unreasonable risk of bodily harm to them, if
(a)
the servant
(i)
is upon the premises in possession of the
master or upon which the servant is privileged
to enter only as his servant, or
(ii)
is using a chattel of the master, and
(b)
the master
(i)
knows or has reason to know that he has the
ability to control his servant, and
(ii)
knows or should know of the necessity and
opportunity for exercising such control.
B.
ILLUSTRATIVE CASES IN THE CONTEXT OF WORKPLACE
INVESTIGATIONS
1.
Sexual Misconduct
Doe v. Evans, 814 So. 2d 370 (Fla. 2002). Plaintiff, who attended a Florida church,
began having marital problems. The church’s priest counseled her regarding the
marriage. During the counseling, the pastor forged a personal relationship with plaintiff
that became romantic. Plaintiff alleged negligent hiring against the church, the diocese,
and the diocese’s bishop claiming that the defendants had reason to know of pastor’s
improper sexual conduct in previous counseling sessions. The court concluded that the
plaintiff’s right to bring the claim was not barred by the First Amendment. The case was
remanded so that the lower court could consider the merit of the plaintiff’s claims.
21
Johnson-Kendrick v. Sears, Roebuck & Co., 39 Va. Cir. 314 (Va. Cir. Ct. 1996). Store
subjected plaintiff to the following activities: he rubbed his clothed genitals on her body,
he subjected her to rude and inappropriate comments, and he offered her advancement
in return for sexual favors. Plaintiff met with management, but instead of solving the
problem, management put her back in her old job in linens. Plaintiff asserted a viable
claim because once management knows that plaintiff has dangerous propensities, the
employer is liable for retaining that employee.
2.
Criminal Background Checks
Rozzi v. Star Pers. Servs., 2007 Ohio 2555 (Ohio Ct. App. 2007). An employee
assaulted a coworker at work. The plaintiff sued the employer for negligent hiring. The
employer failed to conduct a criminal background check into the assaulting employee’s
past. The check would have revealed that the employee’s past included assault, theft,
domestic violence and other offenses. The court held that under Ohio law, an employer
has no duty to conduct a background check under these circumstances, and therefore,
the employer did not violate any legal duty.
3.
Driving Records
Smith v. Tommy Roberts Trucking Co., 435 S.E.2d 54 (Ga. Ct. App. 1993). Plaintiff,
who was injured in a traffic accident, brought an action against the defendant trucking
company and its driver. The trial court granted defendants’ motion for summary
judgment, but the appellate court reversed. The evidence revealed that the employee
had numerous driving violations and, therefore, it is possible a jury could find that the
trucking company failed to exercise the requisite standard of care in investigating its
employee’s driving record. The fact that it lacked actual knowledge of the employee’s
driving record does not defeat liability.
VI.
NEGLIGENT INVESTIGATION
Crenshaw v. Bozeman Deaconess Hosp., 694 P.2d 487 (Mont. 1984). In Crenshaw,
the court recognized a claim for negligent investigation. The plaintiff offered the
following evidence which raised the question of the Hospital’s negligence: (1) the
former acting director testified he had not interviewed all of the appropriate witnesses;
(2) the administrator admitted that he had failed to interview key witnesses and that he
was not sure he had interviewed a physician before sustaining the discharge; and (3)
Doctor Vinton, Crenshaw’s expert on personnel management, conceded that “when the
discharge was made . . . the allegation had not been properly investigated by the
Hospital administrator.” The court concluded:
In light of the foregoing, we find the Hospital’s conduct showed a ‘want of
attention to the nature or probable consequence of the act or omission’
and that their conduct fell below the ‘standard established by law for the
protection of others against unreasonable risk.’ [citations omitted]. The
allegation of negligence was clearly established in respondent’s complaint.
22
Id. at 493.
However, a number of courts have rejected claims of negligent investigation:
Theisen v. Covenant Med. Ctr., 636 N.W.2d 74 (Iowa 2001). Employee filed a claim
stating that employer owed him a duty to investigate before terminating him. Employee
claimed that negligent hiring, supervision, and retention provided support for a negligent
investigation claim. The court ruled that an employer has no duty to conduct a
reasonable investigation before firing an at-will employee because it goes to the heart of
the employer’s decision-making process.
Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604 (Tx. 2002). Court refused to
recognize negligent investigation claim. At-will employment does not require an
employer to be reasonable when making decisions. Therefore, an employer should not
incur liability when its reasons for terminating an employee are unreasonably formed.
Johnson v. Delchamps, Inc., 897 F.2d 808, 811 (5th Cir. 1990). Court held that an
employer could discharge an at-will employee "for a reason based on incorrect
information, even if that information was carelessly gathered.”
VII.
GOOD FAITH AND FAIR DEALING
Courts that recognize good faith and fair dealing claims may infer a lack of good faith
based on the manner in which an employer conducts a workplace investigation. See
Gagliardi v. Denny’s Restaurants Inc., 815 P.2d 1362 (Wash. 1991). However, in
Dickinson v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 431 F. Supp. 2d 247 (D. Conn.
2006), the court rejected plaintiff’s claim of a breach of the covenant of good faith and
fair dealing based on the defendant’s investigation that led to his allegedly wrongful
discharge. The court held that where a contract is terminable at the will of either party, a
breach of an implied covenant of good faith and fair dealing cannot be predicated simply
upon the absence of good cause for a discharge, unless the reason for discharge
involves impropriety derived from some important violation of public policy.
VIII.
CIVIL TRESPASS
Pitts Sales, Inc. v. King World Prods., 383 F. Supp. 2d 1354 (S.D. Fla. 2005). Plaintiff
was a magazine sales company whose agents traveled around the country to sell
magazines. Defendant was a television producer that wanted to do a special on sales
companies. To gather information for its special, defendant sent a producer undercover
to interview for a job with plaintiff. During the interview, the defendant’s producer
misrepresented his personal information. Plaintiff hired defendant. While working, the
producer used a hidden camera and microphone to record plaintiff’s day-to-day
activities. The eventual news report showed some of plaintiff’s activities: abusive
treatment of young sales agents, inadequate supervision of sales agents, sales agents’
use of drugs and alcohol, and deceptive sales practices. Plaintiff argued that it did not
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consent to producer’s admittance onto its property, and defendant argued that consent
to an entry could be given legal effect even when obtained by misrepresentation. The
court determined that the jury should determine whether defendant exceeded the scope
of plaintiff’s consent and therefore denied summary judgment.
In McLain v. Boise Cascade Corp., 533 P.2d 343 (Or. 1975), the court upheld a
trespass claim against an employer who inadvertently entered the land of an employee
in order to videotape him in connection with a workers compensation claim.
IX.
MALICIOUS PROSECUTION
The Restatement (Second) of Torts states:
A private person who initiates or procures the institution of criminal
proceedings against another who is not guilty of the offense charged is
subject to liability for malicious prosecution if
(a)
(b)
he initiates or procures the proceedings without
probable cause and primarily for a purpose other than
that of bringing an offender to justice, and
the proceedings have terminated in favor of the
accused.
Restatement of the Law, Torts 2d, § 653 (1965).
Smith v. Kwik Fuel Ctr., 2006 Tenn. App. LEXIS 206 (Tenn. Ct. App. Mar. 27, 2006).
Employer charged plaintiff with theft, and plaintiff was acquitted of the charge. Plaintiff
filed malicious prosecution claim against employer. The appellate court upheld
summary judgment in favor of the employer because the employer had probable cause
to believe that plaintiff had used the company credit card to steal money from the
company.
Fleming v. United Parcel Serv., 624 A.2d 1029 (N.J. App. Div. 1994). Plaintiff was
discharged by defendant employer for misconduct, theft, and assault. Defendant also
filed a criminal complaint against plaintiff. Plaintiff was subsequently convicted of
downgraded charges, but the conviction was later reversed on appeal. Plaintiff then
instituted an action against defendant alleging malicious prosecution. The court found
that since the plaintiff was initially convicted, it could not be said that there was a lack of
probable cause on the part of defendant. Therefore, plaintiff’s claim was dismissed.
X.
THIRD PARTY ISSUES
Health care professionals and employee assistance counselors are subject to their own
ethical confidentiality restrictions. The extent of these restrictions is beyond the scope
of this paper.
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In connection with workplace investigations, however, it is important to note that a
number of courts have allowed medical professionals to disclose information necessary
to protect the individual or others from imminent serious harm. For example, in
Shaddox v. Bertani, 110 Cal. App. 4th 1406 (Cal. Ct. App. 2003), plaintiff, a police
officer, injured his face and was given Vicodin by a dentist for the pain. The dentist
practiced with defendant, who also was a dentist. Plaintiff visited defendant on a later
date in civilian clothing, and defendant refused to give plaintiff more Vicodin. Plaintiff
gave defendant an icy glare, and defendant’s coworkers suggested that plaintiff was
“psycho.” Believing that the plaintiff could be addicted to drugs and possibly was a
threat to others, the defendant called plaintiff’s supervisors to inform them of plaintiff’s
behavior. Plaintiff filed suit. The court held that the defendant’s comments were
privileged because he was concerned with the officer’s ability to perform his task of
guarding the public’s safety. Moreover, the defendant did not reveal the particulars of
the officer’s conduct until he spoke to the proper authorities. See also Neal v. Corning
Glass Works Corp., 745 F. Supp. 1294, 1297 (S.D. Ohio 1989) (Disclosure by physician
of evidence of employee’s drug use to supervisor was within qualified privilege because
it was “necessary to report the individual’s welfare in the work environment”); Tarasoff v.
Regents of University of Cal., 551 P.2d 334 (Cal. 1976) (common law duty to warn third
person of mentally disturbed and dangerous patient required that psychiatrist disclose
medical information); Young v. Jackson, 572 So. 2d 378, 383-84 (Miss. 1990) (finding
privilege where supervisors disclosed fact of employee’s hysterectomy operation to coemployees, who were concerned that her hospitalization was caused by exposure to
radiation by employer).
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