Investigative Interviewing: Psychology, Method and Practice
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4. No unreasonable search and seizure
5. No unlawful imprisonment; double jeopardy, self-incrimination; taking of
private property without just compensation
6. Speedy trial, opportunity to confront witnesses
7. Trial by jury
8. No excessive bail, no cruel or unusual punishment
9. Preservation of states’ rights, residual rights to the people
10. Federal preservation of rights, residual rights to the state or people
These rights protect citizens against intrusions and abuses by government. They do not protect citizens from the behavior of one another. For that we have criminal and civil law. Civil law recognizes an assortment of torts (civil wrongs) that are actionable. The most common of these tort claims of which the investigative interviewer is exposed includes:
◾ Assault
◾ Battery
◾ False imprisonment
◾ Malicious prosecution
◾ Defamation, slander, libel
◾ Invasion of privacy
◾ Extortion
◾ Negligent hiring, supervision, retention, and investigation
◾ Wrongful discharge
◾ Intentional (and unintentional) infliction of emotional distress
Before we examine these torts and their potential for arising from our work-
place investigations, let’s first discuss the concept of jurisdiction and some of the other legal aspects associated with them that influence when and where they may be brought.
7.2.2 Jurisdiction
Jurisdiction refers to the authority of a state or federal court to hear a case. In order to preside over a case, a court must have both subject matter and in personam jurisdictions. Subject matter jurisdiction refers to authority over the matter in dispute, and in personam jurisdiction refers to authority over the person. For example,
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assume a warehouse employee who worked for a Jacksonville, Florida, company
injured his back at work and pursued a workers’ compensation claim. Subsequently, his employer’s investigator trespassed upon the employee’s property, in Jacksonville, while attempting to video the employee digging a trench in his backyard. If the employee filed suit for $100,000 against the investigator and company for invasion of privacy, he would do so in the Florida courts because they have subject matter jurisdiction over a wrongful trespass committed within the state, and in personam jurisdiction over the employee, investigator, and employer. Of course, the courts of other states have neither jurisdiction over the trespass or parties in this case.
The state and federal courts have exclusive jurisdiction over many areas of law and concurrent jurisdiction over areas of mutual interest. Of interest here, the federal courts have jurisdiction over cases involving the federal government, constitution, and laws; and concurrent jurisdiction over civil cases involving state law issues between parties from different jurisdictions (such as states) that involve damages greater than $75,000. Under the doctrine of pendant jurisdiction, the federal courts, in the interest of judicial efficiency, may decide cases that involve both state law issues and substantial federal issues when the parties and facts are the same.
When deciding state law issues, the federal courts follow the laws of the states. The state courts exercise exclusive jurisdiction over legal disputes involving state law issues regardless of the magnitude of damages when there is no diversity of jurisdiction. State courts also have exclusive jurisdiction over state law issues when there is diversity of jurisdiction and damages are less than $75,000, and concurrent jurisdiction with the federal courts when there is diversity of jurisdiction and damages are greater than $75,000.
Returning to the case study, assume the employee’s home was in Georgia rather
than Florida and the employee was still seeking $100,000 in damages. Because the requested damages are greater than $75,000, and the plaintiff employee is from
Georgia and the defendant company is from Florida, there is now diversity of jurisdiction and the state and federal courts have concurrent jurisdiction. The employee could file the lawsuit in Georgia because it has in personam jurisdiction over the employee and store investigator in the state and subject matter jurisdiction over wrongful trespass committed within the state. Or, the employee may elect to file the case with the federal courts. The defendant, if sued in Georgia, may accept the jurisdiction of the Georgia state courts or he may file a motion to have the case transferred to the federal courts. If the case is tried in the federal courts, it will apply the state law of Georgia to decide the issues in any cases filed under state law.
Jurisdiction also refers to the authority of an agency, board, commission,
department, or other public administrative body to initiate, investigate, or review a complaint. Different federal and state administrative bodies have jurisdiction over the conduct of private sector investigators and private employers. For example, the National Labor Relations Board (NLRB) and Equal Employment Opportunity
Commission (EEOC), respectively, have the authority to review charges against
employers and their agents of unfair labor practices and discriminatory practices.
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State human rights commissions also may review discrimination complaints. State workers’ compensation commissions and unemployment boards routinely analyze
the adequacy of evidence derived from workplace investigations when deciding
the merits of employee benefit claims. Federal and state labor departments, too, may investigate claims against employers and fact finders for violating labor codes.
Decisions rendered by administrative bodies are subject to judicial review by appropriate federal and state courts.
7.2.3 Evidentiary Burdens and Standards
Every federal and state judicial and administrative tribunal has established burdens and standards of proof. Here, burden of proof refers to the duty of a party to present evidence, whereas standard of proof refers to the level of evidence that must be presented to prevail. The elements of proof are the specific facts that must be proved for each cause of action.
In criminal proceedings, for example, the police must show probable cause to
obtain a search warrant or make an arrest, and prosecutors must establish guilt of an accused beyond a reasonable doubt. Probable cause means evidence sufficient
for a reasonable person to believe a crime has been committed and that the sub-
ject committed it. Guilt beyond a reasonable doubt is the highest standard in the judicial system. It means there is certainty in the minds of jurors and judges. The elements that must be proved are those of the alleged crimes as set forth in the penal codes of the jurisdictions.
In order to prevail in a civil case, the plaintiff must establish fault by only a preponderance of the evidence. This means when the competing evidence of the
parties is weighed it must tilt in favor of plaintiffs. If the evidence tilts the other way, the defendants prevail. The elements of proof are those of the alleged wrongful acts (e.g., invasion of privacy, malicious prosecution) as set forth in the judicial decisions and statutes of the jurisdictions. By understanding the elements of the actions that might be filed against them (discussed throughout this chapter), fact finders can conduct themselves in an appropriate manner and minimize their liability exposures.
In a discrimination lawsuit there is a confusing series of shifting burdens. First, the employee must establish prima facie discrimination, which means he is a member of a protected class and adverse employment action was taken against him.
Second, the employer has the option to articulate a legitimate business reason for the alleged adverse employment action. If it does, the burden shifts back to the employee to show by a preponderance of the evidence the reason set forth by the employer is a pretext to hide the alleged discriminatory action. For example, assume a company fired a female
production employee for subjected theft of company tools.
The employee filed a sex discrimination complaint. She alleged she was discharged
[the adverse employment action] because of her status as a female [membership in a protected group]. In response, the company introduced testimonial evidence by
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co-workers who observed her taking the tools. In response, the employee claimed she borrowed the tools. Further, she introduced evidence that male employees routinely took tools home to work on personal projects and they were never disci-
plined. Was the firing justified or was it really a pretext by the company to cover up discrimination?
These shifting burdens are especially confusing in discrimination claims because they actually do not shift the burden of proof. The burden of proof remains at all times on the plaintiff. These are instead the steps that a judge should go through to decide if the case warrants trial.
Although the evidentiary standards in workers’ compensation and unemploy-
ment hearings vary by state, the initial burden is generally upon employers to
prove employees are disqualified from receiving benefits. One level of proof in some states is substantial evidence. This means facts sufficient to support a reasonable conclusion, although others might reach a different conclusion. In workers’ compensation hearings, for example, employers in these states are required to provide substantial evidence that an injury did not arise out of and in the
course of employment , the benefits were procured by fraud, or some other disqualifying conduct. Similarly, employers need to produce substantial evidence
showing willful misconduct or just cause to disqualify unemployment applicants.
Interestingly, parties that lose at the agency level and appeal to the courts often must satisfy higher standards of proof. For example, they may have to prove the agencies’ decisions were clearly erroneous or outside their statutory authority . The reason is the courts give deference to the expertise, interpretation of facts, and decisions of the agencies.
In addition to knowing the burdens and standards of proof necessary when
bringing actions, employers and their fact finders need to know what level of evidence will enable them to successfully defend their conduct. For example, in malicious prosecution lawsuits, fact finders may defend their actions by showing they acted upon probable cause. They and their employers may defend against discrimination complaints by showing they acted for legitimate business reasons. Parties may defend against defamation lawsuits by showing their comments were privileged and the communication had a legitimate business purpose. Because there are so many different claims that may be raised (many discussed in this chapter), the key issue is that fact finders understand these claims and understand the burdens and standards the courts and regulatory agencies will impose to evaluate their evidence and their conduct.
7.2.4 Multiple Agency and Court Review
It is important to remember that the vast majority of workplace investigations are never contested and, therefore, are not reviewed by outside agencies and courts.
Nonetheless, one cannot forget that any investigation may be subject to review
if an aggrieved employee files an administrative complaint or lawsuit. Further,
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depending upon the facts, a single investigation and resulting disciplinary action may be reviewed by multiple agencies and courts.
Hypothetically, assume a white male, union employee, 47 years of age with 25
years of service, was terminated after a lengthy investigation for theft of company property. Further, the employee was not given notice of, nor provided union representation during a confrontational investigative interview. The employer signed a criminal complaint and the ex-employee was found not guilty at his criminal
trial. Based upon these facts, the employee could file a union grievance that he was terminated without cause, an unfair labor practice charge that he was not provided union representation, and an age discrimination complaint that the criminal charges were trumped up as a pretext to discharge him. He also might file a claim for workers’ compensation benefits for emotional distress suffered when he was
unjustly accused, and a separate claim for unemployment benefits on the grounds he did not engage in disqualifying misconduct. Finally, he might sue for false
imprisonment, defamation, malicious prosecution, emotional distress, and assault had his interview been conducted improperly.
This is not to say the employee would win any or all of the charges, but the
employer and fact finder would have to respond to each agency and court per the respective charges. In response to the union grievance, the employer would have to convince an arbitrator that it had just cause to terminate. Regarding his right of representation complaint before the NLRB, the employer would need to show it did not violate his right to representation on the grounds the employee never requested representation. Addressing the EEOC issue, the employer would have to prove it
had a legitimate business reason to terminate and did not engage in age discrimination. Before the state unemployment board, it would have to establish employee willful misconduct to prove ineligibility to collect unemployment benefits, as well as establish that the misconduct was sufficiently egregious so as to harm the interests of the employer. Regarding the workers’ compensation claim, the employer
would need to prove any emotional distress suffered was a self-inflicted result of the employee’s misdeeds or beyond the scope of statutory protection. To defend against the false imprisonment and assault claims, the employer must prove that it did
not detain the employee against his will, nor did its agents do or say anything that constituted assault. It also may need to substantiate that it acted in good faith and had probable cause to sign the complaint to defend against the malicious prosecution claim. Regarding the emotional distress allegation, the employer would need to show it did not act in an extreme and outrageous manner during the investigation, interview, and termination. The actual responses of the fact finder before the different agencies and courts might range from providing investigative documents to testifying at official hearings and proceedings.
The harsh reality of the situation is that even a simple case may be very complex when all the underlying variables and liabilities are examined. Although few workplace investigations result in administrative complaints and lawsuits, the potential exists in every investigation. Thus, it is imperative that fact finders understand their
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rights and duties, respect the rights of those they investigate, and understand the standards and burdens of proof used in the different proceedings.
Regardless of the standards or burden of proof necessary to prevail in court, the experienced fact finder (and his counterpart: decision maker) knows the standard of proof will drive his process and significantly determine the resources necessary to obtain the stated objective. If only an employment action is sought, the standard of proof should be that of good faith investigation/reasonable conclusion. As discussed in several of the preceding chapters, in Cotran v. Rollins Hudig Hall International, Inc., the Supreme Court of California held that good cause existed for terminating an employee for misconduct if an employer had a reasonable and good faith belief that the employee engaged in misconduct. It was ruled that the employer does
not have to convince the court or jury that the employee, in fact, committed the misconduct, only that the employer honestly believed that the employee engaged
in misconduct based on substantial evidence obtained through an adequate
investigation that included a fair opportunity for the employee to respond to the charges. The court further defined the term good cause as a “reasoned conclusion
… supported by substantial evidence gathered through an adequate investigation
t
hat includes notice of the claimed misconduct and a chance for the employee to respond.” Thus, the importance, if not necessity, of the fourth phase of investigation, the verification and analysis phase, which involves interviewing the subjects of one’s investigation.
In conclusion, both federal and state courts and administrative agencies have
exclusive and concurrent jurisdictions over various aspects of workplace investigations. Investigators, in order to perform their duties effectively, should become familiar with the courts and agencies that have jurisdictions over their investigations and learn about the different burdens and standards of proof. To do otherwise is unprofessional and potentially expensive.
7.3 Preparatory Legal Considerations
From a liability risk management perspective, the “preparation and planning phase”
of an investigation is a critical stage. It is the foundational stage. If not properly set, there is a greater probability the investigation may not achieve its objectives, but will waste time and resources. As a review, the following critical issues should be, at a minimum, addressed during this phase: (1) the legal duty to investigate, (2) investigator selection, (3) investigative objectives, (4) evidentiary burdens, and (5) documentation controls.
7.3.1 Legal Duty to Investigate
One of the first issues an employer should address is to determine whether it has a legal duty to conduct the intended workplace investigation. In most circumstances,
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the decision to investigate employee misconduct in the workplace is left to the discretion of the employer. The underlying reason is that the victim of the misconduct in the majority of cases is indeed the employer. Whether the loss is of a type or magnitude that concerns the employer sufficiently enough to allocate resources to investigate is a business decision left to the discretion of the employer based on its calculation of return on investment (ROI), as discussed in Chapter 1.
There are circumstances, however, where an employer may have a legal duty to
investigate employee misconduct. That is, in these cases, the decision to investigate is no longer discretionary. A duty to investigate, for discussion purposes here, may arise from statutes and regulations, contracts with employees, and common law